EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Dorrian	[2013] CSIH 76 XA18/13 OPINION OF LADY DORRIAN in the application by DM for leave to appeal against a decision of the Upper Tier Tribunal dated 17th December 2012 _______________

Act: Winter, Drummond Miller LLP

Alt: Walker; Solicitor to the Office of the Advocate General

6 June 2013

[1] The applicant is a national of Zimbabwe who claimed asylum in October 2011, having entered the UK on 2 June 2007, on a visa allowing her to enter as a domestic worker for an employer with whom she claimed previously to have been employed. On the expiry of the visa in August 2011 she became liable to removal as an overstayer. Initially she said she could not return to Zimbabwe because of a medical condition for which she could not receive adequate treatment in Zimbabwe. Subsequently she claimed that her defection from the Zanu PF party to the MDC party put her at risk of persecution if she were to return to Zimbabwe. She claims to have been the subject of violence towards her on that account prior to leaving Zimbabwe. She said that she had been employed by the same family until 2010 then commenced work for a family in Glasgow. She developed renal failure secondary to dental abscesses. During the investigation for her condition she was found to suffer from uterine fibroids and developed a thrombosis. She received hospital treatment.

[2] In the substantive asylum interview she explained that she had not in fact worked for the original family before coming to the UK and expanded upon her alleged treatment at the hands of Zanu PF supporters. She expanded upon the history of her various party memberships, but with considerable vagueness. Her home had been in Harare, where she had family, and she would be unable to relocate to Bulawayo. Medical reports showed that at the conclusion of treatment she was independent and with no active symptoms, but that it was important for her to remain taking Warfarin for three months.

[3] The respondent refused the claim because core elements were not believed. The applicant appealed that decision, maintaining that she would not be able to show loyalty to the regime and was thus at risk. The judge at the First Tier Tribunal, noting the low standard of proof to be met by the applicant, nevertheless concluded that she had been unable to meet that standard. There were inconsistencies and implausabilities in her evidence, which went to the very crux of the claimed experiences and her credibility. In the original decision of the respondent it was noted that the applicant had not had any connection with the MDC since coming to Britain; that there were significant discrepancies in the history she had given; that she gave limited or incorrect information about the Zimbabwean political situation; that there were inconsistencies in relation to the harassment she alleged to have suffered at the hands of Zanu PF supporters; and that she had remained in the UK for several years before deciding to seek asylum, seeking renewal of her visa each year on the basis that eventually she would be returning to Zimbabwe. Significantly she had not mentioned the MDC in her screening interview, stating the reasons for wishing to remain in the UK as those relating to her health. Moreover on 30 August 2011 she had applied for assisted voluntary return for irregular migrants without suggesting that there would be any risk to her on return. The First Tier Tribunal noted these discrepancies and referred in detail to those aspects of the evidence which caused the immigration judge to conclude that the appellant simply could not be believed regarding her alleged role and involvement with the MDC, the alleged consequences thereof and, accordingly, the reasons she gave for fearing to return to Zimbabwe. The First Tier Tribunal found it utterly implausible that, had the applicant genuinely had involvement with the MDC, and been genuinely at risk, she would not at the screening interview have mentioned what was now advanced as the core reason for her fears.

[4] The reality is that the First Tier Tribunal, on an assessment of credibility, found that the entire core of the applicant's claim was untrue. It is convenient to quote paragraph 33 of the decision of the First Tier Tribunal, which was as follows:

"In conclusion I find that the discrepancies and implausabilities referred to above go to the core of the credibility of the applicant's claims regarding her experience in Zimbabwe and her ability to return there without persecution. She has not established she was ever involved with the MDC as a member or in a higher role or that she was persecuted by members of the Zanu PF in consequence. She has not established she had to leave Zimbabwe to avoid persecution. I do not find that there is any serious possibility that the appellant would be persecuted by members of Zanu PF and the authorities if she were removed to Zimbabwe now or that she could not demonstrate loyalty should that become necessary to the regime. The appellant has not discharged the burden of proof based on the low standard which rests with her to show that she has a well founded fear of persecution for a refugee Convention purpose."

The immigration judge rejected the contention that the applicant could not relocate to Bulawayo where it was considered also that she would not be at risk.

[5] The decision of the First Tier Tribunal was appealed on the basis that the immigration judge had failed to consider the risk to the applicant on return as an involuntary returnee. The deputy Upper Tribunal judge noted that in rejecting the claim the immigration judge had found the applicant to be incredible in relation to matters relating to the very heart of the claim and quoted paragraph 33, to which I have just made reference. The deputy Upper Tribunal judge concluded that there was no material error in law, and that although the immigration judge had not specifically referred to the case law, she clearly had the relevant principles in mind, and her reference to the issue of being able to demonstrate loyalty to the regime showed an awareness of the relevant case law. The deputy Upper Tribunal judge considered that the immigration judge had properly considered the issue of risk on return and had supported her conclusions by cogent reasoning.

[6] The application for leave to appeal in this case is a little difficult to follow, as are the grounds upon which leave to appeal was sought from the Upper Tribunal. However the propositions advanced in court were, first, that the Upper Tribunal and First Tier Tribunal should have applied RN (Returnee) Zimbabwe CG 2008 UKAIT 00083, which stated that not only perceived supporters of MDC would be at risk but also those unable to demonstrate loyalty to the regime. Particular regard should have been given to paragraphs 81, 225 and 227; second, the fundamental question, as shown in RT (Zimbabwe) v SSHD [2013] 1 AC 152 was whether there was a real and substantial risk that loyalty to the regime could not be demonstrated; and third, that question could not be decided simply on the basis of the applicant's lack of credibility and the case should ultimately be remitted for consideration to be given to that issue.

[7] The First Tier Tribunal made no reference to any authority. However in paragraph 33 there is clear reference to the issue of whether the applicant would be able to demonstrate loyalty to the regime. This in my view must be taken to be a reference to RN. As to the Upper Tribunal, the grounds of appeal to that body specifically state that it was incumbent upon the immigration judge to apply the country guidance issue in the case of EM and others. At the actual hearing the submission for the applicant was simply that there being no specific reference to EM and others there was danger that the authorities were not to the forefront of the judge's mind.

[8] However, on behalf of the respondent, the tribunal's attention was drawn to the fact that EM had been remitted back and that the prevailing case to consider was RN. It was abundantly clear that deputy Upper Tribunal judge did not apply EM but instead gave consideration to RN. He specifically noted the comments in that case that those at risk on return to Zimbabwe were not restricted to members of the MDC but include anyone who is unable to demonstrate support or loyalty for the regime. This is specifically the point made in paragraph 225 which is referred to in the application for leave to appeal so it cannot be said that the Upper Tribunal did not take this into account.

[9] The remaining two paragraphs of RN which are relied upon merely indicate the various ways in which a returnee might, at the time of that case, be asked to demonstrate loyalty to the regime. No doubt there are many ways in which that could have been requested. All these paragraphs do is go towards indicating the fact that a person in the position of the applicant might be called upon, in different ways and at different times, to demonstrate loyalty to the regime, which might not be easy for a returnee, and that therefore it is incumbent upon a tribunal to consider the risk of such a person having to demonstrate loyalty, both on return to Harare and at the person's home if that is elsewhere.

[10] However there are other parts of the case of RN which are equally important. At paragraph 230, in a passage echoed in RT, it was noted that a person returning to Zimbabwe as a failed asylum seeker from the UK was not generally at risk on that account alone, each case turning on its own facts and circumstances, and if for example a person would be returned to a milieu where loyalty could be assumed he will not simply be at risk because he spent time in the UK and sought to extend his stay by making a false asylum claim.

[11] In RT it was observed that it was difficult to see how an asylum claim advanced on the basis of imputed political opinion could be rejected unless the judge was able to find that the claimant would return to a milieu where political loyalty would be assumed and where, if he was interrogated at all, he would not face the difficulties faced by those who were not loyal to the regime in other parts of the country. In other words, if likely to be returned to a milieu where loyalty would not be assumed there might be a risk. The real question, it was said, in relation to the particular applicant, was whether there was a real and substantial risk that her loyalty to the regime could not be demonstrated. In view of the lack of credibility throughout of the applicant in that case she might have difficulty in demonstrating that she did not have loyalty to the regime. In paragraph 241 of RN it was noted that recognition of the risk for returnees does not mean that a bare assertion of Zimbabwean nationality and the claimed inability to demonstrate Zanu PF membership or loyalty to the regime will be sufficient to establish a right to be recognised as a refugee. Having addressed the issue of evidence the tribunal went on to say, at paragraph 246:

"So this will be a question of fact to be resolved in each case. This may come down to a simple assessment of credibility but immigration judges are well accustomed to making such judgments. An appellant who has been found not to be a witness of truth in respect of the factual basis of his claim will not be assumed to be truthful about his inability to demonstrate loyalty to the regime simply because he asserts that. The burden remains on the appellant throughout to establish the facts upon which he seeks to rely."

This of course is subject to the direction that despite the failure of an applicant to help himself by telling the truth, it is still necessary to consider whether there is a risk of persecution on return.

[12] The proposition that the issue was a question of fact to be assessed on a case by case basis was confirmed in SS. That case noted that the above propositions from RN were not debated in RT and that the appropriateness of giving RN a broad application by reference to the facts of each particular case was not questioned. In paragraph 39 it was noted that a fair reading of RN connotes that a person lacking in credibility in the important aspects of his account of events may, depending on the particular circumstances, be found to have failed to show that he is not in fact aligned to Zanu PF or that he would be returning to a milieu where he is at real risk of interrogation whereby he could not demonstrate loyalty.

[13] RT extended to situations such as this the reasoning in HJ Iran by indicating that it was not reasonable to expect someone to have to lie, and be believed in that lie, in order to live without risk on return.

[14] It is, in my view, of considerable importance that the applicant here was found to be wholly incredible as to the entire basis of her claim. Her evidence was comprehensively rejected. She was thus left as someone making a bare assertion as to her inability to demonstrate loyalty. It is for the applicant to state reasons why, in the event of her primary claim being rejected, she would nevertheless be at risk on return. She does not, and did not, do so. The basis of the immigration judge's decision, and one which she was entitled to reach, was that the applicant's reason for wanting to remain in the UK had all along related to the better healthcare available and that the whole business of involvement in the DMC or concern about being unable to show loyalty were invented simply to prevent her removal from the UK. The immigration judge was entitled to conclude that there was no possibility that the applicant would be likely to be someone in a position of risk if she had, only months prior to her application, been willing to be repatriated on a voluntary basis.

[15] I do not consider that the issues in HJ Iran arise in this case. It does not follow from the rejection of her account that she would be required to lie to show loyalty to the regime if called upon to do so. This is also a fact sensitive issue which requires to be put in issue by the applicant. As the respondent observes in his note of argument, no argument has been advanced that there was specific evidence which the First Tier Tribunal is said not to have considered, and which could have survived the adverse credibility findings to the extent of admitting of a contrary view.

[16] In any event the immigration judge had also found that the applicant had been quite prepared to lie, without concern to her conscience, to the UK immigration authorities to achieve her own purpose. There was no hint in the form which she completed in August 2011 in relation to voluntary repatriation that she was unwilling to return or would be in danger were she to do so. As the immigration judge observed:

"I do not find it credible that the appellant would claim on 30 August 2011 that she wished to return voluntarily to Zimbabwe but two months later claim that she would be killed if she did return if the latter claim and the basis for this claim were true.

In my view there has been no error of law demonstrated on the part of either the immigration judge or the deputy Upper Tribunal judge. It is quite clear that the immigration judge, although not referring in terms to authority, had specific regard to the risk that the applicant would be called upon to show loyalty not just on return to Harare but elsewhere. It is clear that the case of RN was at the forefront of the immigration judge's mind and it was considered in terms by the deputy Upper Tribunal judge."

Even if there had been an error of law that would not have been the end of the matter: as the applicant's note of argument accepts under reference to Hoseini, in order to succeed the applicant must be able to show something of the nature of probabilis causa in relation to a genuine point of law which is of some practical consequence. The position adopted on behalf of the applicant was that the case should ultimately be remitted back to the Upper Tribunal for reconsideration. The papers here make it plain that the place to which the applicant would wish to be returned is Harare where she has family, none of whom are involved with the MDC. Otherwise she could be relocated to Bulawayo. The authorities make it clear that in the event that the matter were to be referred back it would be for consideration on the basis of the latest country guidance which is effectively CM Zimbabwe [2013] UKUT 00059, although not a country guidance case itself. That indicates that (a) there is significantly less politically motivated violence than at the time the matter was discussed in RN; (b) that in general a returnee to Harare will face no significant difficulties and a person without Zanu PF connections will not face difficulties unless they have a significant MDC profile; (c) that a returnee to Bulawayo will not in general suffer adverse attention, even if they have a significant MDC profile; and (d) that the credibility of an applicant remains a very important consideration. For these reasons there would be no likelihood that a remit would serve any purpose and any appeal would not relate to any point of law which had, or might have, some practical consequence. Therefore even if I had been satisfied that the tribunals had erred in law I would not have found that the Hoseini test had been met.

[17] The application will therefore be refused.