EM (Zimbabwe) v Secretary of State for the Home Department

Certification of an asylum or human-rights claim is appropriate only where the claim is bound to fail. Different wording, such as having no realistic prospect of success, may express the same test. An allegation of domestic violence does not, by itself, require an oral merits hearing or establish a well-founded fear of persecution. The decision-maker must assess the individual evidence, the relevant Convention ground, state protection and the feasibility of internal relocation. General country material and historic allegations do not necessarily make refusal arguably unlawful. Article 8 interference may be proportionate where exclusion from the United Kingdom is justified on the circumstances disclosed.

The appellant, a Zimbabwean national, entered the United Kingdom in 2005 as a student. She later alleged domestic violence by her former husband, from whom she had divorced in Zimbabwe, and applied for asylum in 2013. The Secretary of State refused asylum and humanitarian protection and certified both claims as clearly unfounded, removing an in-country appeal.

The Upper Tribunal refused permission to bring judicial review proceedings, first on the papers and then on renewal. Underhill LJ subsequently refused permission to appeal and a stay on the papers. The application before Bean LJ concerned whether the certification was arguably unlawful, particularly in relation to persecution, sufficiency of protection, internal relocation, vulnerable witnesses and Article 8.

1. Applications refused. Permission to appeal and a stay of removal were both refused.
2. The correct certification test was whether the claim was bound to fail. The formulation that the claims had no realistic prospect of success conveyed the same meaning, so the Upper Tribunal had not arguably applied the wrong test.
3. An asylum seeker who alleges domestic violence did not, without more, become entitled to an oral merits hearing. Guidance concerning vulnerable witnesses addressed the treatment of witnesses at an oral hearing and did not create such an entitlement at the certification stage.
4. The substantive question was whether the Secretary of State was clearly and unarguably right to conclude that the appellant lacked a well-founded fear of persecution by state agents or on other Geneva Convention grounds, and that there was sufficient protection in Zimbabwe, taking account of internal relocation. On anxious scrutiny of the refusal letter and the country-of-origin information, no arguable flaw was identified.
5. The material did not establish that a divorced woman whose former husband had been separated from her for many years was necessarily at risk of persecution. An email alleging threats, general statistics on domestic violence and the absence of medical evidence concerning alleged scars did not render the decision arguably wrong. The Article 8 interference involved in exclusion was regarded as proportionate in the absence of dependants in the United Kingdom.

• Court of Appeal (Civil Division): EM (Zimbabwe) v Secretary of State for the Home Department, [2015] EWCA Civ 961. Permission to appeal and a stay were refused.
• Upper Tribunal (Immigration and Asylum Chamber): Permission to bring judicial review proceedings was refused on the papers and on renewal. No citation is stated in the judgment.
• Underhill LJ: On 5 June, permission to appeal and a stay were refused on the papers. No citation is stated in the judgment.