SS & Ors (Zimbabwe) v Secretary of State for the Home Department

In Zimbabwe asylum appeals, the principle in RT (Zimbabwe) [2012] UKSC 38 prevents treating political neutrality differently from active political opinion where safety would require dissimulation. That principle does not make every appeal succeed automatically. An adverse credibility finding may remain relevant to whether a claimant is likely to be stopped, the milieu to which the claimant returns, and whether loyalty to Zanu-PF is assumed. Remittal is justified where the appeal is not bound to succeed on the current evidence and findings, unless remittal would be unjust. Country guidance must ordinarily be followed unless very strong grounds supported by cogent evidence justify departure, but it must be applied flexibly and may be superseded by cogent updated guidance.

Seven Zimbabwean citizens appealed against adverse decisions of the Upper Tribunal on asylum and related grounds. The appeals followed the Supreme Court’s decision in RT (Zimbabwe) [2012] UKSC 38, which was delivered after the hearings below. Some of the Upper Tribunal decisions had relied on the country guidance in EM (Zimbabwe) [2011] UKUT 98 (IAC), which had meanwhile been quashed for procedural reasons, leaving RN (Zimbabwe) [2008] UKAIT 00083 as the relevant guidance pending reconsideration.

After the hearing, the Upper Tribunal promulgated CM (EM country guidance: disclosure) Zimbabwe CG [2013] UKUT 00059 (IAC). The central questions were whether the Supreme Court’s decision made the previous credibility findings irrelevant, whether any appeal was bound to succeed, and whether the interests of justice required remittal.

Lord Justice Davis gave the judgment, with Lord Justice Pill and Mr Justice Warren agreeing.

1. Governing principle. Applying RT (Zimbabwe) [2012] UKSC 38, there is no principled distinction between a person with no political beliefs who would have to pretend loyalty to avoid persecution and a person with political beliefs who would have to conceal them. The principle does not remove the need to determine whether the claimant would be stopped or interrogated, whether loyalty would be assumed in the returnee’s milieu, and whether there is a real risk that asserted loyalty would be disbelieved.
2. Credibility and country guidance. A previous adverse credibility finding may remain materially relevant. It may bear on whether the claimant has shown that he or she is not aligned with Zanu-PF, whether the claimant would face interrogation, and whether the claimant would need to lie. It is not automatically determinative. The guidance in RN (Zimbabwe) [2008] UKAIT 00083 remained applicable pending new guidance, subject to its fact-sensitive qualifications. Country guidance is not inflexible, but departure requires very strong grounds supported by cogent evidence.
3. Remittal. The court should ask whether, on the current evidence and findings, the appeal would be bound to succeed. If not, it should separately ask whether remittal would be unjust in all the circumstances. The later guidance in CM (EM country guidance: disclosure) Zimbabwe CG [2013] UKUT 00059 (IAC), endorsing the relevant guidance in EM (Zimbabwe) [2011] UKUT 98 (IAC), made the appellants’ cases fact-sensitive rather than inevitably successful.
4. Fairness and disposition. It was not unfair, and created no legitimate expectation, for the Upper Tribunal on remittal to consider the latest country guidance. None of the seven asylum appeals was bound to succeed, and no sufficient injustice justified deciding them outright. Each appeal was remitted to the Upper Tribunal for redetermination on its individual facts, with liberty to consider the updated guidance. In SM’s case, the dismissal of the Article 8 grounds remained undisturbed.

1. Court of Appeal (Civil Division): ordered that all seven appeals be remitted to the Upper Tribunal for redetermination. The Upper Tribunal was permitted to consider the country guidance in EM (Zimbabwe) [2011] UKUT 98 (IAC) as restated in CM (EM country guidance: disclosure) Zimbabwe CG [2013] UKUT 00059 (IAC).
2. Upper Tribunal (Immigration and Asylum Chamber): made the adverse decisions from which the appeals were brought, including decisions dismissing asylum appeals and decisions following error-of-law or continuation hearings.
3. First-tier Tribunal: rejected or dismissed the appellants’ asylum claims, making varying findings on credibility, political activity, sur-place conduct, return risk and Article 8.