CM (Zimbabwe) v the Secretary of State for the Home Department (Rev 1)

In country-guidance asylum appeals, there is no general duty requiring the Secretary of State to disclose every relevant document held by government, nor a general rule excluding uncorroborated anonymous material. The Secretary of State must take reasonable steps to place relevant qualifying material before the tribunal and remain candid about documents of which she is aware. Specific enquiries may be required where material in hand prompts them, but unprompted or undirected searches are not required. Anonymous material must be assessed case by case, with its source, operational capacity, corroboration, consistency and context informing its weight. A tribunal may obtain assistance from a public-interest-immunity advocate, provided it retains responsibility for its own decision.

The appellant was one of the appellants in the Zimbabwe country-guidance decision in EM & Others (Returnees) (Zimbabwe) CG [2011] UKUT 98. Following an earlier appeal allowed by consent, his case was remitted to the Upper Tribunal for reconsideration in light of disclosure and evidential issues.

On 31 March 2013 the Upper Tribunal confirmed the country guidance, subject to one amendment. The appellant appealed on three grounds: the appointment of a public-interest-immunity advocate, reliance on anonymous evidence, and the scope of the Secretary of State’s disclosure duty in country-guidance proceedings.

Laws LJ, with Kitchin and Underhill LJJ agreeing, dismissed the appeal on all three grounds.

1. Public interest immunity. The Upper Tribunal was entitled, within its case-management powers, to obtain assistance from a public-interest-immunity advocate. The advocate acted as a friend of the court, judicial assistant or counsel to an inquiry. The extensive material and tight timetable justified the procedure. The concern identified in AHK v SSHD [2009] EWCA Civ 287 arose in the context of a closed procedure and did not require a specially appointed advocate here. Al-Rawi v the Security Service [2012] 1 AC 531 supported the entitlement to obtain assistance in principle.
2. Anonymous evidence. Sufi and Elmi v United Kingdom [2011] ECHR 1045 did not establish a rule of evidence. Anonymity may make forensic challenge more difficult and will generally affect weight, but reliance on anonymous material depends on all the circumstances. The tribunal should consider the source, its operations and capacity, the circumstances in which information was obtained, corroboration and consistency with other evidence. The Upper Tribunal’s assessment was consistent with the guidance in NA v United Kingdom and the analogous approach in AN and FA v SSHD [2012] EWCA Civ 1636.
3. Fairness. The use of the material did not breach common-law fairness, Article 47 of the Charter of Fundamental Rights or fair-trial guarantees under the European Convention on Human Rights. This was not a closed-material procedure and the appellant was not denied the opportunity to understand the case against him.
4. Disclosure. The Tribunal Procedure (Upper Tribunal) Rules 2008 do not impose a general duty to disclose all relevant material held by the Home Office or Foreign Office. Rule 5 gives the Upper Tribunal power to direct the provision of documents, information and evidence. The Kerrouche principle, as developed in R(Cindo) v IAT [2002] EWHC Admin 246, requires the Secretary of State not knowingly to mislead the tribunal, including by withholding material she knows or ought to know materially qualifies the case advanced. In country-guidance cases she must take reasonable steps to place relevant material before the tribunal and make specific enquiries prompted by material in her possession. She need not conduct an unprompted or undirected search for otherwise unknown material. Different considerations may arise in SIAC closed-material proceedings.
5. Order. The revised Zimbabwe country guidance did not require reconsideration. Appeal dismissed.

• Court of Appeal (Civil Division) — On 30 July 2013, dismissed the appeal from the Upper Tribunal.
• Upper Tribunal (Immigration and Asylum Chamber) — On 31 March 2013, reconsidered and, subject to one amendment, confirmed the Zimbabwe country guidance in EM & Others (Returnees) (Zimbabwe) CG [2011] UKUT 98.
• Court of Appeal (Civil Division) — In June 2012, allowed the earlier appeal by consent and remitted the cases to the Upper Tribunal for redetermination.