Case No: C5/2008/1675
Neutral Citation Number: [2009] EWCA Civ 565
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: AA/07237/2006]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 23rd October 2008

Before:

LORD JUSTICE CARNWATH
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Between:

	SS (ZIMBABWE)
	Appellant	
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SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

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Mr M Karnick (instructed by Paragon Law) appeared via video link on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment

Lord Justice Carnwath:

1.	This is an application for permission to appeal from a decision of Immigration Judge Zucker on a reconsideration.  The essential facts are set out in the decision; I need not repeat them.  he claimant has come from Zimbabwe. She originally came here in September 2002, lawfully, with leave to remain for six months.  She did not in fact claim asylum until March 2006.  
2.	The basis of her claim was perhaps somewhat unusual.  She claimed that she had come here, as a helper of a family called the Chiwewe family, in particular a Noreen Chiwewe.  The relationship, she says, broke down; and after the Chiwewe family returned to Zimbabwe, she feared that, the animus against her of Noreen Chiwewe, she would be at risk because, she said, Noreen Chiwewe was well connected with ZANU-PF.  The judge goes into this in great detail, but in short terms he did not really believe her story. In particular was not satisfied that Noreen Chiwewe, even if she existed, was likely to be a threat.  
3.	There are three points that Mr Karnick takes and I am grateful for his succinct presentation.  The first relates to a letter from a firm called Cheda & Partners in Zimbabwe, dated 9 December 2005.  The relevance of this letter is twofold. On the one hand, it deals with part of the story which relates to the appellant’s brother, MS, who was an active member of the opposition party, MDC, and provides some support to the mistreatment that he had suffered. On the other it refers to Noreen Chiwewe. The letter is from Cheda & Partners to the officer commanding Bulawayo Province Central State Police Station. Having enquired about the position of MS, it then goes on:
 “We further wish to be updated on the matter of Noreen Chiwewe pending before the courts as we feel that the two matters are interlinked.”

That is all it says.  The letter came to attention, apparently, at some later time. There is an e-mail from Cheda & Partners, dated 8 January 2008, to Mr Karnick’s instructing solicitors, referring to the letter and saying:  
 “We confirm that the letter is genuinely from our office.  Our Mr Ncube is the one who was consulted and originated the letter.  Please advise if there is anything else you need.”

4.	Unfortunately, that was not followed up with what one would have thought would have been the obvious question, viz: Well, what were the circumstances of that letter and what was Noreen Chiwewe’s involvement?  Judge Zucker said he accepted that the lawyers in Zimbabwe exist but he went on: 

“That they exist however does not mean influence has not been used in order to pursue a document which will assist the Appellant in her claim.  It maybe that the Appellant has been assisted in the preparation of this claim and it may explain why the Appellant’s cousin has not come to give evidence.  That however is speculation and I do not allow that speculation to influence my decision making save to observe and find that I do not accept having regard to Tanveer Ahmed principles that the letter from the MDC or from the solicitors are documents which I am prepared to accept in the context of the claim as a whole as genuine.”

 That is paragraph 76 of the decision
5.	Now it is said that he does not give adequate reasons for discounting the contents of the letter, given that he has accepted that the lawyers exist and there is an e-mail saying that the letter is genuine.  It seems to me, however, there is very little in the point, because whatever one says about the letter it does absolutely nothing to advance the case for the role of Noreen Chiwewe.  At the most it is some evidence that a Noreen Chiwewe does exist, but as to whether she has any involvement with this appellant or whether she has any connection with ZANU-PF, it is wholly silent. So, even if Judge Zucker had given it more weight, I cannot see how it could possibly have affected his decision.
6.	The second point relates to the evidence given by the presenting officer, Mr Johnson.  In paragraph 74 of the decision the judge observes that if Noreen Chiwewe had ever been in the United Kingdom, one would have expected that there would be some record, especially since on the appellant’s own case she arrived with a visa.  He said: “Mr Johnson told me that he had made enquiries and he was not able to find any evidence of Noreen Chiwewe being in the United Kingdom and that he would have expected to have been able find evidence if it existed.”  He goes on to attach some weight to that factor.  
7.	Mr Karnick’s point is that that was not proper evidence. Mr Johnson was there as a presenting officer, not as a witness. If the tribunal had wanted to treat his statement as evidence he should have made clear that was what he was doing and given an opportunity for cross examination and so on. Also, he says, that the judge should not have simply accepted as face value statements by the presenting officer about the likelihood of there being records or the significance of their absence.  
8.	I think the difficulty with that, as Mr Karnick fairly accepted, is that he was at the hearing and, if objected to the way Mr Johnson’s material was being presented, he had the opportunity to do so then and there.  It is certainly not unusual for hearings of this kind to be conducted with a degree of informality which would not be normal in the courts. Where that is done it is obviously very important that it should not result in unfairness to either side. But where the parties are represented by counsel, as the appellant was, it is incumbent upon that party to object at the time, so that if there is a defect it can be sorted out.  It seems to me too late to say now that there is some error of law in the way that this was dealt with.  
9.	Finally, there is a quite different question relating to the child who has been born recently to the appellant.  The appellant has been diagnosed as being HIV-positive, and the concern is that there may be a risk to the baby if the baby does not get the appropriate form of milk.  I have a letter from the Newcastle Upon Tyne hospital’s Department of Infection and Tropical Medicine, from a Doctor Price dated 4 March 2008, that describes the appellant’s position and the treatment that she will require; and it says that it is important that she does not breast feed in the initial period since otherwise there would be a relatively high risk of the baby becoming infected with HIV.  It goes on: “if the baby was breast fed or there was a mixture of breast feeding and formula feeds, then there would be around a 25% chance of the baby becoming infected with HIV if the mother was not taking HIV antiretroviral therapy.  The baby requires HIV testing of proviral DNA at six weeks and then at three months and six months of age.”  
10.	It was said that there was a serious risk that if returned to Zimbabwe the appellant would not be able to obtain the necessary form of milk for her child to avoid that risk.  The judge dealt with that, first of all by addressing whether there would be alternative milk available in Zimbabwe, and, on balance concluding that there would be, notwithstanding the economic problems of buying it. He also said that, even if that were not right, the particular problem did not give rise to a case under Article 3. 
11.	It seems to me that that second proposition must be right.  He referred to the case of N v SSHD [2004] 1WLR 1182 in the House of Lords, which shows that there is a veryhigh hurdle for those suffering from HIV/AIDS and worried about the availability of treatment in the country they are being sent to; and that is so even if they are really at a very advanced stage of the illness.  It seems to me that when one is dealing with a child who is at the moment perfectly healthy, happily, and where there is simply a possible risk of problems if she were returned, that unfortunately does not come anywhere near the standard set by such cases so as to make out a case under Article 3.    I think there is the additional important point from a humanitarian point of view that, as I understand it, the appellant would not be likely to be returned to Zimbabwe at the present time for other reasons. I would certainly hope that humanitarian considerations in any event could ensure that she would not be returned at a time when her baby was in the early months and therefore at particular risk.  
12.	For these reasons, the application for permission to appeal must fail and I dismiss it.

Order: Application refused