UI2022006242 [2025] UKAITUR UI2022006242 (14 March 2025)

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IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2022-006242

First-tier Tribunal No: HU/54450/2022

LH/00665/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 14 March 2025

Before

UPPER TRIBUNAL JUDGE HANSON

Between

(ANONYMITY ORDER MADE)

Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr Pipe, instructed by Sydney Mitchell LLP.

For the Respondent: Ms Rushforth, a Senior Home Office Presenting Officer.

Heard at Cardiff Civil Justice Centre on 19 February 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court .

DECISION AND REASONS

1. In a decision promulgated on 14 June 2023 a panel, composed of the Presidents of the Upper Tribunal and First-tier Tribunal, found an error of law in the decision of the First-tier Tribunal which it set aside, in part. That decision was reported with neutral citation TC (PS compliance- "issue-based" reasoning) Zimbabwe [2023] UKUT 164 (IAC).

2. The background of this appeal taken from that decision reads:

3. The appellant is a national of Zimbabwe, who was born in 1990. He came to the UK in 2014, when he was 14, with indefinite leave to enter on the basis that his mother had been recognised as a refugee. The appellant was granted refugee status 'in line' with his mother.

4. The appellant commenced a relationship with his current partner in March 2018. They have a 2-year-old son, who was born in February 2021.

5. On 25 May 2018 the appellant was convicted of kidnapping and actual bodily harm. He received concurrent sentences of imprisonment of 42 months and 18 months respectively. Prior to this, he received three cautions between 2008 and 2017. In addition, on 23 February 2017 he was convicted of dangerous driving and on 5 May 2017 he was convicted of possession of a Class B drug and sentenced to six months imprisonment. Following this offence, the respondent wrote to the appellant on 17 May 2017 warning him that if he continued to offend, he may be liable to deportation.

6. The appellant was served with a decision to deport him dated 14 June 2018 and a letter dated 11 December 2018 informing him of the respondent's intention to exclude him from the Refugee Convention protection on the basis of his criminal offending pursuant to s.72 of the Nationality, Immigration and Asylum Act 2002 ('the 2002 Act'). He was also issued an intention to cease his refugee status on 15 February 2019. In written representations the appellant outlined why he was not a danger to the community and why he continued to be entitled to refugee status. The UNHCR also explained why his refugee status should not cease in a letter dated 22 March 2019.

Refusal decision

7. In a decision dated 1 July 2022 ('the refusal decision'), the respondent inter alia:

(i) certified that the s.72 presumption applies because the appellant was convicted of a particular serious crime (having been sentenced to a period of imprisonment of two years) and had not rebutted the presumption that he constitutes a danger to the community;

(ii) revoked the appellant's refugee status under para 339A(v) of the Immigration Rules and Article 1C(5) of the Refugee Convention on the basis that he was no longer dependent upon his mother and the circumstances in Zimbabwe for a person like him (who did not have a significant MDC profile and came from an urban area) had fundamentally and durably changed, such that the circumstances in connection with which he had been recognised as a refugee ceased to exist;

(iii) concluded that the appellant's medical condition did not meet the severity threshold to engage Article 3, ECHR and that he has sufficient links and access to support in Zimbabwe to obviate any contravention of Article 3;

(iv) concluded that the appellant did not meet the requirements of para 399A of the Immigration Rules on the basis that he was not socially and culturally integrated in the UK and there would not be very significant obstacles to his integration there;

(v) concluded that there would be no breach of Article 8, ECHR on the basis of the appellant's relationship with: a) his partner, because they were not in a genuine and subsisting relationship and in any event she could reasonably move to Zimbabwe to live with him, and; b) his son, because it was believed at the time that the appellant did not claim to have a family life with children;

(vi) concluded that the appellant was unable to demonstrate evidence of a very strong Article 8 claim over and above the exceptions to outweigh the very significant public interest in deportation.

3. It is not disputed the appellant has serious mental health issues. The evidence relevant his mental health recorded in the Presidential determination is as follows:

11. The ASA specifically cross-references to additional evidence in the appellant's bundle, including detailed evidence relevant to the appellant's mental health. It is necessary to set this out in some detail. The FTT(HESC) (Mental Health) decision dated 30 December 2021 ('the 2021 FTT mental health decision') provides an independent detailed insight into the appellant's mental health up to that point. Further detail and more up to date assessments are to be found in the following: a report dated 22 August 2022 from Mr Evans, the appellant's community psychiatric nurse; a report dated 31 August 2022 from Mr Gregory, a registered mental health nurse who had been working with the appellant since October 2020; a report dated 1 September 2022 from Ms Joliffe, a trainee clinical psychologist under the supervision of a lead clinical psychologist. We summarise the most relevant aspects of this evidence.

(i) The appellant reported to the 2021 FTT mental health panel that he had flashbacks to his time as member of the Zanu-PF youth in Zimbabwe (summarised as being a child soldier) and these occurred when he was serving his prison sentence. He was in contact with mental health services whilst in prison.

(ii) The appellant was released from prison on licence on 21 February 2020. He has been known to secondary psychiatric services since March 2020 when he was referred to psychological therapy due to symptoms of PTSD related to his time as a child soldier. Before this could be provided the appellant was detained under s.2 in June 2020 following an incident in which a neighbour and an emergency worker were assaulted. He was sectioned between July and September 2020 when he exhibited signs of acute mania. He was diagnosed with bipolar affective disorder with psychotic features.

(iii) The reports note that the appellant's bipolar disorder follows a clear pattern of typical relapse and remission. When unwell he presents with formal thought disorder, grandiose delusional beliefs, bizarre behaviours, serious violence to others and aggression. This means that he is at increased risk of retaliatory violence due to his provocative behaviours and chaotic presentation.

(iv) The reports also describe the appellant as experiencing symptoms of trauma including hyper-arousal, hypervigilance nightmares and flashbacks, with an extensive trauma history starting in childhood, including his experience of being forced to work as a child solider and being exposed to atrocities and highly traumatic experiences.

(v) Upon his release the appellant was compliant with prescribed medication (Olanzapine and Sodium Valproate) and community treatment.

(vi) The appellant's mental health deteriorated in October 2021 when was asked to travel to Kenya for the funeral of his partner's mother. He was concerned about its proximity to Zimbabwe and the risk of being apprehended by security service.

(vii) He was assessed and reassessed following incidents of criminal damage and shortly after suffered a very severe relapse which led to him being sectioned again between December 2021 and January 2022. The reports note that the relapse occurred shortly after he was asked to travel to Kenya and despite compliance with antipsychotic medication.

(viii) Such was the extent of his delusional mind at the time that he was recorded as having been involved in over 28 aggressive and at times assaultive behaviour that involved intervention by nursing staff, including seclusion, to preserve his welfare and that of other patients.

(ix) The appellant needs considerable support in the community. This includes:

a) weekly psychology / therapy / CBT sessions to support him to cope with high levels of distress as a result of his psychosis which centre upon a fear that there is a conspiracy to set him up to provoke a relapse so that he then loses control of his mental state and commits an offence and is thus deported, resulting in him being tortured and killed by individuals working for the Zimbabwean government.

b) Two weekly meetings with a mental health nurse to explore symptoms, response to treatment and risks present.

c) Daily support from his partner albeit they do not live together.

(x) Ms Joliffe's report describes an increase in the appellant's paranoid thinking, nightmares, flashbacks and distress. Mr Evans also refers to the appellant experiencing regular flashbacks and nightmares relating to multiple traumas including his experiences as a child soldier.

(xi) Mr Evans concludes that if the appellant "were to stop his medication or be unable to access his treatment then it is highly probable that he would relapse".

(xii) Mr Gregory's report links the more severe impact upon the appellant's mental health to when he is confronted with issues that trigger a sense of existential threat, primarily associated with being placed at the mercy of organisations in Zimbabwe. He concludes that the appellant "is very afraid of the prospect of being deported to Zimbabwe...and this has previously led to the onset of acute episodes of mania accompanied by erratic and aggressive behaviour which have only be successfully managed in hospital... there is a very high likelihood of relapse should he be informed at that he will be deported".

(xiii) Ms Joliffe concludes that returning the appellant to Zimbabwe would be "enormously triggering...and would lead to further exacerbation of psychotic symptoms and a significant relapse" and without the intensive care the appellant receives and the support of his immediate family, he is "at a high risk of relapse of a serious episode of psychosis if deported".

12. The ASA also relied upon evidence from the appellant in his witness statement dated 6 September 2022, that he was forcibly recruited into Zanu-PF youth league in Zimbabwe and was traumatised as a result, which led to some of his mental health concerns.

13. The ASA referred to an OASys assessment dated 8 August 2022, said to place the appellant at a low risk of offending and a medium risk to the public.

4. The Panel having assessed the evidence found the First-tier tribunal had erred in law on Grounds 1 to 5 but dismissed the appeal on Grounds 3 and 4 which limited the issues at large to the appellant's asylum claim and Article 8 claim, if pursued, which were said to be relatively narrow and straightforward factual issues, and on the basis there will be no need for further fact-finding in the appeal as the facts were agreed and not in dispute.

5. I mention at this stage an application having been made pursuant to Rule 15(2A) of the Upper Tribunal Procedure Rules seeking leave to adduce further evidence which was not before the Panel or tribunal previously, namely a report from Mary Griggs, Consultant Clinical Psychologist and Manager, Asylum Seekers & Refugee Trauma Service.

6. The document is in the form of a letter written to the appellant dated 12 February 2025, who met Mary Griggs on 6 February 2025 for psychological assessment with The Hope Service, after he had been referred symptoms associated with PTSD. Mary Griggs writes:

Summary

You described difficulties including flashbacks to childhood trauma and severe sleep disturbance. You were open with me that at times you can feel overwhelmed with thoughts and feelings about the past. You are very keen to try to find ways of managing these symptoms without relying on medication.

We also completed standardised assessment measures such as the PHQ (which measures depression), the GAD (which measures anxiety) and the PCL-5, which screens for PTSD symptoms. You scored 13/27 on the PHQ-9 indicating "Moderate depression" (10-14), 21/21 on the GAD -7 indicating "Severe anxiety" (15-21), and scored 64/80 on the PCL -5 where a score of over 31 indicates likelihood of PTSD.

From this initial screen there is evidence of unprocessed trauma, which is likely to be consistent with PTSD or Complex PTSD. I understand from your account and from the referral information sent to me, that you have a longstanding diagnosis of bipolar disorder.

Risk

We discussed aspects of risk, you shared a concern that not sleeping can trigger psychotic episodes and that you are very keen to find psychological ways to manage your distress rather than cycles of medication to manage psychosis and then sedative medication. You currently report no thoughts of self harm or of ending your life.

Care Plan

Following this assessment, it was agreed that you will continue to be supported by your care coordinator in Recovery and that you would also be offered a 6 week Moving on After Trauma (MOAT) course 1:1 (at your 2 request) with the Hope Service. The Hope service supports service users using a three-phase approach to Trauma therapy - Stabilisation (MOAT), followed by 1:1 Trauma work looking in detail at the traumatic experiences.

In your assessment you outlined that you're keen to engage in Stabilisation work / MOAT course and build on the helpful psychological work you have already had, however may not engage in 1:1 Trauma therapy as you are understandably concerned about the impact that discussing details of your traumatic experiences might have on your mental health at this time.

As we are a treatment pathway and not a general mental health team, we have discussed offering this first phase of treatment - MOAT- and then discharging you from our service. You will remain with the Recovery Team, as you are now.

7. Ms Rushforth did not object to this evidence being admitted.

Discussion and analysis

8. Discussions that took place with Mr Pipe prior to the hearing commencing informed the Tribunal that the appellant was unwell. He was therefore not giving any evidence and it was agreed that the matter could proceed by way of submissions only with Mr Pipe leading followed by Ms Rushforth.

9. The order in which matters were considered was firstly to consider whether the appellant was excluded from the protection of the Refugee Convention by operation of section 72 Nationality, Immigration and Asylum Act 2002 on the basis he had committed a particularly serious crime and posed a danger to the community which he had not rebutted.

10. The second issue was whether the revocation of the appellant's protection status was justified on the facts, including country information.

11. The third issue is whether his deportation from the United Kingdom will be unduly harsh in consideration of Article 8 ECHR and relevant provisions of the Immigration Rules, if necessary.

12. The Presidential panel preserved the Article 3 findings of the First-tier Tribunal, which are discussed at [41 - 55], which found that returning the appellant to Zimbabwe will be a breach of his rights pursuant to Article 3 ECHR on medical grounds when applying the correct test as set out by case law in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 and Savan v Denmark (application no. 57467/15).

13. The effect of that finding is whatever conclusion I come to the appellant is not going to be removed from the United Kingdom.

14. It was not disputed before me that the appellant suffers from bipolar affective disorder and PTSD. He has suffered psychosis, had mental health breakdowns and has been sectioned on a number of occasions. He suffers from psychotic ideas and paranoid beliefs, receives counselling and medication, including antipsychotic medication, and resides in a supported living facility.

15. Section 72 of the 2002 Act, in its current form, reads:

72 Serious criminal

(1) This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from prohibition of expulsion or return ]).

(2) A person is convicted by a final judgment of a particularly serious crime .. if he is-”

(a) convicted in the United Kingdom of an offence, and

(b) sentenced to a period of imprisonment of at least 12 months.

(3) A person is convicted by a final judgment of a particularly serious crime... if-”

(a) he is convicted outside the United Kingdom of an offence,

(b) he is sentenced to a period of imprisonment of at least 12 months, and

(c) he could have been sentenced to a period of imprisonment of at least 12 months had his conviction been a conviction in the United Kingdom of a similar offence.

(4) A person is convicted by a final judgment of a particularly serious crime ... if-”

(a) he is convicted of an offence specified by order of the Secretary of State, or

(b) he is convicted outside the United Kingdom of an offence and the Secretary of State certifies that in his opinion the offence is similar to an offence specified by order under paragraph (a).

(5) An order under subsection (4)-”

(a) must be made by statutory instrument, and

(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(5A) A person convicted by a final judgment of a particularly serious crime (whether within or outside the United Kingdom) is to be presumed to constitute a danger to the community of the United Kingdom.

(6) A presumption under subsection (5A) that a person constitutes a danger to the community is rebuttable by that person.

(7) A presumption under subsection (5A) does not apply while an appeal against conviction or sentence-”

(a) is pending, or

(b) could be brought (disregarding the possibility of appeal out of time with leave).

(8) Section 34(1) of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (no need to consider gravity of fear or threat of persecution) applies for the purpose of considering whether a presumption under subsection (5A) has been rebutted as it applies for the purpose of considering whether Article 33(2) of the Refugee Convention applies.

(9) Subsection (10) applies where-”

(a) a person appeals under section 82 .. of this Act or under section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68) wholly or partly on the ground mentioned in section 84(1)(a) or (3)(a) of this Act (breach of the United Kingdom's obligations under the Refugee Convention), and

(b) the Secretary of State issues a certificate that a presumption under subsection (5A) applies to the person (subject to rebuttal).

(10) The . . Tribunal or Commission hearing the appeal-”

(a) must begin substantive deliberation on the appeal by considering the certificate, and

(b) if in agreement that a presumption under subsection (5A) applies ] (having given the appellant an opportunity for rebuttal) must dismiss the appeal in so far as it relies on the ground specified in subsection (9)(a).

(10A) Subsection (10) also applies in relation to the Upper Tribunal when it acts under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

(11) For the purposes of this section-”

(a) "the Refugee Convention" means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol, and

(b) a reference to a person who is sentenced to a period of imprisonment of at least 12 months -”

(i) does not include a reference to a person who receives a suspended sentence (unless a court subsequently orders that the sentence or any part of it is to take effect),

(ia) does not include a reference to a person who is sentenced to a period of imprisonment of at least 12 months only by virtue of being sentenced to consecutive sentences which amount in aggregate to more than 12 months,

(ii) includes a reference to a person who is sentenced to detention, or ordered or directed to be detained, in an institution other than a prison (including, in particular, a hospital or an institution for young offenders), and

(iii) includes a reference to a person who is sentenced to imprisonment or detention, or ordered or directed to be detained, for an indeterminate period (provided that it may last for12 months).

16. It is not disputed before me that the appellant has been convicted by a final judgement of a particularly serious crime. The reduction in the minimum period of imprisonment from at least two years to 12 months was introduced substituted on 28 June 2022 by Nationality and Borders Act 2022.

17. The issue at large in relation to this aspect of the appeal is to be found in section 72(5A), that a person convicted by a final judgement of a particularly serious crime is to be presumed to constitute a danger to the community of United Kingdom. As found in section 72(6), that presumption can be rebutted which, if undertaken successfully, would mean the individual is not excluded from the protection of the Refugee Convention under this section.

18. Mr Pipe referred to his skeleton argument in which he makes reference to the OASys report assessing the appellant as presenting a low risk of offending and a medium risk to the public and known adults. That assessment has a conditional element, in that his risk to the public is only medium unless there is a change in circumstances. The report also states the appellant is very motivated to address his offending behaviour.

19. I have also considered the report of Dr Hazel Cameron dated 30 January 2024, Sophia Jolliffe dated 1 September 2022 which states the appellant is at a high risk of relapse of a serious episode of psychosis if deported, Terrance Gregory, a Senior Practitioner with the Bristol Early Intervention Psychosis Team, which assesses there to be a very high risk of relapse if the appellant is deported, and from Huw Evans, a Community Psychiatric Nurse who has written letters dated 28 August 2022 and 4 May 2023.

20. It is also not disputed before me that the Secretary of State conceded in the refusal letter that the appellant's mother had claimed and was granted asylum on the basis she was a member of the MDC in Zimbabwe and accused of being a spy for the United Kingdom. It was also conceded the appellant has been lawfully resident in the United Kingdom for most of his life that he has worked, paid taxes, made a contribution to the economy, and that his parents and extended family are in the United Kingdom.

21. An incident that post-dates the decision of the Presidential panel is referred to in the letter from Huw Evans of 4 May 2023 where he wrote, with reference to the appellant:

He was subsequently taken to Exeter place of safety and detained under section 2 of the mental health act on the 9 ^th Feb 2023. He was transferred to a psychiatric intensive care unit in callington road hospital in Bristol on the 10 ^th Feb. His section 2 expired on 10 ^thMarch and he remained in hospital as an informal patient until the 23 ^rd March 2023.

Following discharge he still has hypomanic symptoms present with pressured speech and flight of ideas. In particular talking excessively about the events prior to admission, trying to make sense of this. This was in the context of him stopping diazepam soon after discharge, he was reviewed by a non-medical prescriber in our team, who planned an extended reduction regime for diazepam.

We consider the 3 month period following an admission as being high risk for relapse and in TC's case he is still recovering from his recent episode. His previous admissions have been much more protracted and have lasted for up to 6 months. While he was discharged after only 6 weeks on this occasion, he is still in the process of recovering from this episode. It is my opinion that this court process would have significant impact on his mental health during this high risk period.

22. The appellant was convicted of dangerous driving and given a suspended sentence in September 2023. It was submitted by Mr Pipe that this was the appellant's last offence and that the index offence was committed over eight years ago, on 24 November 2016.

23. At [30] of the skeleton argument Mr Pipe refers to his key point in relation to the section 72 assessment, which is that there is a correlation between the appellant's continued offending and his being acutely unwell, and that outside his illness the risk is low. It was submitted the appellant is proactive in informing the mental health team when he is in relapse, which will indicate that in such a situation appropriate action can be taken meaning is not a danger to the community.

24. There was some discussion about the question of whether, if a person commits offences as a result of a deterioration in their mental health, it can be said that they have not rebutted the presumption of dangerousness. Mr Pipe's submission was that in accordance with the tenure of the Refugee Convention the actions leading to an assessment of dangerousness had to be based upon the voluntary conduct of an individual for them to be found to be culpable.

25. Taking Mr Pipe's argument based upon a proper interpretation of the Refugee Convention, a person can establish that they are entitled to protection as a result of deliberately or consciously undertaking acts that create a risk for them, or if an adverse profile is imputed by those who may cause them harm, even if they have undertaken no such act. This is the basis of identifying those as having an actual or imputed adverse political opinion or view in their home state.

26. It is also the case that a person can be entitled to the protection of the Refugee Convention if they are acting in a manner which gives rise to potential persecution or ill-treatment as a result of mental illness - see DH (Particular Social Group: Mental Health) Afghanistan [2020] UKUT 223.

27. Ms Rushforth in her submissions referred to the fact there was no qualification in section 72 in relation to whether it was necessary to show that a person had the requisite capacity or intention to commit the acts that gave rise to the risk of serious harm and inability to rebut the presumption.

28. The fact an individual does not have capacity as a result of their mental health may also be relevant to the criminal proceedings. Section 72 refers to a person being convicted of a final judgement of a particularly serious crime and being sentenced to a period of imprisonment of at least the requisite minimum period.

29. This is also the case in which although the appellant has had mental health issues possibly far a lot longer than the date he was diagnosed, he has been held to be culpable and have the necessary capacity in terms of the criminal law to stand trial and be convicted of the various offences. At no time has a hospital order or guardianship order been made indicating that it has not been the case that he has satisfied the requirements for such to be made.

30. Therefore, even though the appellant may have offended when he was ill in the past it was not made out that the effect of the illness was such that he was able to avoid sanction under the criminal law, or to establish that he did not act as he did as a result of matters totally outside his control, or that the situation will be any different in the future, sufficient to warrant a finding he has rebutted the presumption of dangerousness for this point alone.

31. Mr Pipe also referred to the fact the appellant is proactive in approaching the medical authorities when he feels his mental health is declining, which is to his credit, but whether he would do that on each and every occasional or whether doing so will be dependent upon the extent of any decline in his mental health, means this cannot be taken as the determinative factor in assessing whether the section 72 presumption had been a rebutted.

32. There is also the point made by Ms Rushforth in her submissions that the appellant pleaded not guilty to the serious offence for which he was convicted and sentenced to a period of imprisonment of over two years, the minimum period of imprisonment required at the time the appellant was sentenced pursuant to section 72, and that it was relevant that the appellant still maintains that he is not guilty of the offences, in addition to the fact that on 6 June 2023 he was convicted of dangerous driving and being in possession of a controlled drug. It was submitted the OASys underplays the appellant's use of drugs/alcohol.

33. The problem for the appellant in this appeal is that depending on a certain set of circumstances he may not present a danger to the community, i.e. if he not mentally unwell, but I do not find on the balance of probabilities that he is has established that sufficient reliance can be put upon those circumstances to warrant a finding that he has rebutted the presumption of dangerousness at this point in time.

34. On that basis the appellant is excluded from the protection of the Refugee Convention by virtue of the operation of section 72.

35. That is, however, not the end of it. Mr Pipe and is submissions, written and oral, properly referred to the decision of the Upper Tribunal in PS (cessation principles) Zimbabwe [2021] UKUT 283 (IAC), paragraph 339 A (v) of the Immigration Rules which states:

(v) they can no longer, because of the circumstances in connection with which they have been recognised as a refugee have ceased to exist, continue to refuse to avail themselves of the protection of the country of nationality;

36. PS is a decision of a different Presidential panel composed of the Honourable Mr Justice Lane, President of the Upper Tribunal, and Upper Tribunal Judge Plimmer (as she was then). The head note of that decision, which reflects findings made within the body of the determination reads:

1. The correct approach to cessation in Article 1(C) of the Refugee Convention, Article 11 of the Qualification Directive 2004/83 and paragraph 339A of the Immigration Rules can be summarised as follows:

(i) There is a requirement of symmetry between the grant and cessation of refugee status because the cessation decision is the mirror image of a decision determining refugee status i.e. the grounds for cessation do not go beyond verifying whether the grounds for recognition of refugee status continue to exist - see Abdulla v Bundesrepublik Deutschland (Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08) [2011] QB 46 at [89] and SSHD v MA (Somalia) [2019] EWCA Civ 994, [2018] Imm AR 1273 at [2] and [46].

(ii) "The circumstances in connection with which [a person] has been recognised as a refugee" are likely to be a combination of the general political conditions in that person's home country and some aspect of that person's personal characteristics. Accordingly, a relevant change in circumstances might in a particular case also arise from a combination of changes in the general political conditions in the home country and in the individual's personal characteristics, or even from a change just in the individual's personal characteristics, if that change means that she now falls outside a group likely to be persecuted by the authorities of the home state. The relevant change must in each case be durable in nature and the burden is upon the respondent to prove it - see Abdulla at [76] and SSHD v MM (Zimbabwe) [2017] EWCA Civ 797, [2017] 4 WLR 132 at [24] and [36].

(iii) The reference in the Qualification Directive (as replicated in paragraph 339A) to a "change in circumstances of such a significant and non-temporary nature" will have occurred when the factors which formed the basis of the refugee's fear of persecution have been "permanently eradicated" - see Abdulla at [73] wherein it was pointed out that not only must the relevant circumstances have ceased to exist but that the individual has no other reason to fear being persecuted.

(iv) The relevant test is not change in circumstances, but whether circumstances in which status was granted have "ceased to exist" and this involves a wider examination - see SSHD v KN (DRC) [2019] EWCA Civ 1655 at [33].

(v) The views of the UNHCR are of considerable importance - HK (Iraq) v SSHD [2017] EWCA Civ 1871 at [41], but can be departed from.

2. It is therefore for the SSHD to demonstrate that the circumstances which justified the grant of refugee status have ceased to exist and that there are no other circumstances which would now give rise to a well-founded fear of persecution for reasons covered by the Refugee Convention. The focus of the assessment must be on: (i) the personal circumstances and relevant country background evidence including the country guidance ('CG') case-law appertaining at the time that refugee status was granted and; (ii) the current personal circumstances together with the current country background evidence including the applicable CG.

37. The appellant places considerable reliance upon report of Dr Hazel Cameron. To understand the report in its context it is necessary to bear in mind the basis of the appellant's mother's claim for asylum which is accepted by the Secretary of State, that the appellant was forcibly recruited into the Zanu-PF youth and was traumatised in Zimbabwe as a result leading to his mental health problems, that the UNHCR in their representations stated that prevailing country situation in Zimbabwe did not demonstrate there has been a change in circumstances of a significant and non-temporary nature, risk in Zimbabwe to those who return after a significant absence as per the UNHCR, and the appellant having been born and raised in a high density area of Harare.

38. The report of Dr Cameron, dated 30 January 2024, was not challenged before me on the basis of lack of expertise as a country expert. It is a very detailed report in relation to which Dr Cameron sets out a brief summary of her findings in the following terms:

A. It is my opinion that the states' treatment of the opposition and potential or perceived opposition in contemporary Zimbabwe ensures that there is a real risk that the circumstances in connection with which the mother of the Appellant was recognised as a refugee have not ceased to exist.

B. It is my opinion that if the Appellant is deported to Zimbabwe as a person who fled Zimbabwe and benefited from indefinite leave to remain in the UK on the basis of his mother's refugee status , he will be given an imputed political opinion by the state, and be at high risk of attracting the adverse attention of the state security forces who routinely subject members of the opposition as well as potential or perceived members of the opposition to organised violence and torture.

C. The Appellant will return to Zimbabwe from the UK as a deportee and a failed asylum seeker, whose mother is a refugee from the government of Zimbabwe residing in the UK. It is my opinion that the "Patriotic Bill" enacted into law on 14 July 2023 therefore leaves him at real risk on return of being targeted by state security forces (SSF) on his arrival for "wilfully communicating messages intended to harm the image and reputation of the country on international platforms... intended to harm the country's positive image and/or to undermine its integrity and reputation." Should he be criminalized for "wilfully injuring the sovereignty and national interest of Zimbabwe" whilst abroad, he is at real risk of receiving a lengthy prison sentence or the death sentence.

D. It is my opinion that the Appellant's application for asylum in the UK on political grounds leaves him at real risk of being identified by the government of Zimbabwe on his return as an opponent of the government in terms of the Patriotic Bill of 2021, and a person who has willingly harmed the country's positive image on an international platform, intended to harm the country's positive image and/or to undermine Zimbabwe's integrity and reputation abroad. Those identified as such are at real risk of being subjected to arbitrary detention/arrest, torture, and beatings and the risk of a court sentence of a lengthy period of time in prison or sentenced to death.

E. It is my opinion that the mother of the Appellant would also be at risk of attracting the adverse attention of SSF if she were to return to Zimbabwe as an individual who benefits from political asylum in the UK in light of the enactment of the Criminal Law (Codification and Reform) Amendment Bill 2022.

F. It is my opinion that the profile of the Appellant indicates that he is at high risk of arbitrary arrest/detention at the airport on his return due to the newly enacted Criminal Law (Codification and Reform) Amendment Bill 2022.

G. It is my opinion that should the Appellant be criminalised on his arrival in Zimbabwe in terms of the Criminal Law (Codification and Reform) Amendment Bill 2022, there is a real risk that he will face detention in harsh and lifethreatening prison conditions, potentially for the rest of his life.

H. Despite the Ministry of Public Service, Labour and Social Welfare being mandated to provide for the wealth and protection of vulnerable groups in the country, the deleterious economic crisis in Zimbabwe ensures that there are no form of government social protection programmes in force and that there is no form of social welfare that the Appellant can access on his return. The small funds provided by the UK government upon deportation are insufficient to provide any buffer from the very real risks of living in extreme poverty on his return to Zimbabwe.

I. I have noted that the Appellant does not have a network of family or friends to support him on his return to Zimbabwe. As such, current country conditions dictate that there is a high risk that he will be unable to meet the exorbitant costs of living in current day Zimbabwe. These circumstances are further exacerbated by the fact that he is a seriously ill person, and as such it is more than likely that he will find himself destitute on return.

J. With due consideration to the profile of the Appellant, it is my opinion that it is not remotely possible that he will be able to access any form of employment or income on his return, and he will find herself in the grip of extreme poverty after deportation to Zimbabwe where he will more than likely find himself destitute and without access to food.

K. It is my opinion that if the Appellant was able to find shelter in such an informal settlement he would be at real risk of being subjected to coercive control, disease and organised criminal networks who prey on the vulnerable. He will also be at risk of stigmatisation when his mental health illnesses become visible to those in his environment.

L. It is my opinion that there is a very high likelihood that as a result of having no income, and the stigma of mental illness, the Appellant will be unable to find shelter in an informal settlement and will find himself destitute and homeless, forced to sleep on 'bedding' under trees that are formed by gathering rubbish from the side of the city's roads, and he will be without access to any form of protection. These risks are country-wide and cannot be mitigated by internal relocation.

M. Should the Appellant find himself homeless and destitute, or alternatively, living in one of the country's many illegal slums, it is more than likely that he will find himself to be one of the several million currently in significant need of humanitarian assistance due to outbreaks of cholera and other diarrhoeal diseases, food insecurity and multiple hydro-meteorological hazards, including drought and flooding.

N. With due regard to the profile of the Appellant, a vulnerable and seriously ill person, it is my opinion that his vulnerable mental state and destitution will place him at risk of being internally trafficked on his return to Zimbabwe. It is possible that he will be at high risk of being trafficked into an exploitative labour situation in either agriculture or mining. Internal relocation will not mitigate the risk of the Appellant becoming a victim of human trafficking.

O. With due regard to country conditions, it is my opinion that there is no viable means for the Appellant to establish a link with public mental health services, or any other form of medical treatment in Zimbabwe on his return due his 20-year absence from the country, the current economic and social emergency ongoing in the country, and the nature of his serious illnesses. It is highly unlikely that he will be able to access any form of psychiatric treatment on his return to Zimbabwe.

P. In agreeance with the FTT decision of 2 December 2022, there is an absence of the vital community mental health services relied upon by the Appellant in the UK to prevent psychotic relapse, given the significance and seriousness of his mental health problems. In addition, there is no community mental health treatment available to this deportee, which on the evidence of the professionals is "vital to maintain his fragile mental health".

Q. The Appellant is a seriously ill person, and it is my opinion there is a real risk that his Psychosis, specifically paranoid beliefs, ideas of reference and anomalous experiences as well as hyper-arousal and hypervigilance, will become apparent within his community, where he will more than likely become the target of fear, stigma, discrimination, and exclusion. It may also render him liable to imprisonment in harsh and life-threatening conditions, potentially for life.

R. It is my opinion that all risks to the Appellant are country wide and cannot be mitigated through internal relocation.

39. The burden of proving the appellant is no longer entitled to be recognised as a refugee falls upon the Secretary of State as it is she who is making such an assertion.

40. It is also important to understand that Dr Cameron is not saying that all failed asylum seekers will be at risk on return to Zimbabwe, but on the specific facts of this appeal the appellant will face such a risk.

41. Mr Pipe's core submission was that the Secretary of State could not discharge the burden upon her to show the appellant was no longer entitled to refugee protection.

42. In response to this point, Ms Rushforth submitted that the appellant had not demonstrated that he is a refugee. His leave to enter the United Kingdom as a family member of his mother had ended, there is no evidence of continued political activity, the country guidance caselaw showed he could return to Harare, although she accepted the burden was upon the Secretary of State.

43. A specific submission was made that the expert report was silent in relation to risk on return, no account had been taken of when the appellant was taken to the training camp or his mother's awareness of it and there were no details of the same, and there was no claim of risk of ill treatment until 2020. Dr Cameron's report was challenged on the basis it was claimed it was written in general in terms, and that although there was violence against high-profile people they were not like the appellant. It was submitted the report provided no explanation for why the appellant would be of interest, failed to consider all points relevant to risk on return, and made no reference to the objective evidence. It was submitted the Home Office evidence showed there had been a change in the country situation and that refugee status can be revoked as the appellant had not shown he was entitled to the same.

44. In reply Mr Pipe referred to [2] of PS, in which it was found:

45. Mr Pipe also submitted there was no merit in the assertion Dr Cameron had failed to address relevant issues. Mr Pipe specifically referred to [91] of the report in which specific consideration is given to Zimbabwe country conditions, [110] in which Dr Cameron writes "the following section will provide an analysis of whether there other circumstances which would now give rise to a well-founded fear of persecution should the Appellant be deported to Zimbabwe, based on his role as a former child soldier of the notorious Zanu-PF youth militia group and his submission of his own claim for asylum". I also note [143] where Dr Cameron writes " it is my opinion that the profile of the Appellant indicates that he is at high risk of arbitrary arrest/detention at the airport on his return due to the newly enacted Criminal Law (Codification Reform) Amendment Bill 2022".

46. Dr Cameron also gives consideration to the CPIN in relation to Zimbabwe.

47. I find no merit in the assertion that less weight should be put on Dr Cameron's report as a result of any alleged omissions. She clearly considered the country information from all sources relating to both protection and mental health needs before coming to the conclusions which I set out above.

48. Having sat back and considered the matter I find there is merit in the submission of Mr Pipe that the evidence as a whole, taken cumulatively, shows the appellant is still entitled to protection as the Secretary of State has not discharged the burden of proof upon her to show otherwise, as per PS.

49. In relation to Article 8 ECHR, as the appellant's appeal has been allowed pursuant to Article 3 ECHR, he cannot be removed from the United Kingdom, and therefore there will be no interference in any protected right to family and/or private life. I find, however, for the sake of completeness that in light of the grounds on which the appeal has been allowed the Secretary of State has not established that it would be proportionate to interfere in the appellant's protected rights.

50. As a matter of comment, no more, there was some discussion during the hearing of what period of leave the appellant will be entitled to as a result of his appeal pursuant to Article 3 ECHR having been allowed by the First-tier Tribunal and that finding preserved. Ms Rushforth indicated she believed that he will be granted 30 months, which accorded with Mr Pipe's understanding.

Notice of Decision

51. The Section 72 presumption has not been rebutted.

52. The appeal is allowed on the basis the Secretary of State has failed to demonstrate that the circumstances which justified the grant of refugee status for this particular appellant have ceased to exist, or that there are other circumstances which would now give rise to a well-founded fear of persecution for reasons covered by the Refugee Convention, as detailed in the report of Dr Cameron.

C J Hanson

Judge of the Upper Tribunal

Immigration and Asylum Chamber

6 March 2025

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	United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments
You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> UI2022006242 [2025] UKAITUR UI2022006242 (14 March 2025) URL: http://www.bailii.org/uk/cases/UKAITUR/2025/UI2022006242.html Cite as: [2025] UKAITUR UI2022006242

United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments