UK IMMIGRATION: Credibility now key assessment in UK asylum claims
Vitalis Madanhi
ON MARCH 26, 2013, the UK Court of Appeal handed down a ruling in which it had occasion to consider the recent past and present position regarding Zimbabwean asylum seekers. The case is referred to as SS and others.
In particular the court considered the impact of the decision in the case of RT Zimbabwe, RN Zimbabwe and the case of EM Zimbabwe which has been restated in the case of CM Zimbabwe which happens to be the present country guidance case to be followed in asylum matters regarding Zimbabweans.
It is a feature of all the seven appeals considered in the case of SS and others that the appellants were found not to be credible in the version of events they put forward to the tribunal. A further feature of these appeals is the extent to which such findings of want of credibility may impact on what the Secretary of State says is a question of fact common to each appeal: that is, whether it remains necessary for the appellants (if returned to Zimbabwe) to demonstrate loyalty to Zanu PF to ensure safety from persecution.
The Secretary of State says that the findings of lack of credibility do, or may well, impact on the ultimate determination of the asylum claims. Thus the issue of credibility was duly examined as key to the success and or otherwise of a claim for asylum.
The court in turn considered first the impact of the decision of RT (Zimbabwe). In order to properly explain where the parties are at issue and in order to determine the proper disposal of each of the appeals on their own particular circumstances, it was necessary first to consider the ambit and implications of the decision in RT (Zimbabwe).
In that case, each of the Zimbabwean claimants had been found (contrary to their protestations in some of the cases) not to hold any political beliefs; but it was also found by the tribunal that they could and would, if necessary, be able to demonstrate loyalty to President Robert Mugabe's Zanu PF party and therefore there was no real risk that they would be subject to ill-treatment if returned to Zimbabwe.
However, the core decision of the Supreme Court, applying the principles laid down in HJ (Iran) v SSHD [2010] UKSC 31; [2011] 1AC 596, was to the effect that there was no basis for treating differently a person who had no political beliefs, but who, in order to avoid persecution, would be obliged to pretend that he did, from a person who did have active political beliefs and who, in order to avoid persecution, would be obliged to conceal them.
A simple assessment of credibility becomes essential at all times when a claim is made. 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.
But care must be taken in respect of such an appellant who has chosen to put forward a wholly untruthful account in support of his claim. The standard of proof he must meet is not a demanding one. As was pointed out in GM & YT (Eritrea) v SSHD [2008] EWCA Civ 833, per Buxton LJ at paragraph 31:
'In every case it is still necessary to consider, despite the failure of the applicant to help himself by giving a true or any account of his own experiences, whether there is a reasonable likelihood of persecution on return.'"
That lack of credibility may be of key importance in any given case seems to be borne out by the actual disposals of the four cases by the Supreme Court. RT was found to be credible. It was accepted that she was apolitical and that she would be returned to a milieu where there was a real risk she would face hostile questioning which she could not truthfully answer. It was for that reason that the appeal of RT was allowed. By way of contrast, the appeals of SM and AM were remitted in circumstances where each had been found not to be credible.
In the cases of SS and others the common thread has been the fact that the appellants were not credible at all and their appeals had been considered in different courts before the matters were eventually considered by the court of appeal. The court of appeal remitted back to the Upper tribunal for reassessment. A quick summary of all the material issues in each case is outlined below highlighting matters requiring further evaluation. The material matters arising should be considered and effectively dealt with by anyone seeking to make an asylum claim afresh and or on appeal.
SS
In the case of SS, permission to appeal to the Court of Appeal was refused by the Upper Tribunal. Permission to appeal was granted by Sir Richard Buxton on 19 July 2011 on the basis that, having regard to RN (Zimbabwe), the ambit of the approach based on credibility raised a point for consideration and also on the basis of the subsequent developments in the RT (Zimbabwe) litigation as to whether a person should be expected to lie about his political beliefs.
The court then ruled that the appeal should not be dismissed outright. First, it may be necessary (among other things) to consider the true extent of SS's political convictions: his sur place MDC activities were described as being solely to bolster his claim (as well as being found not likely to attract attention). The evidence could be consistent with him being in truth a continuing Zanu-PF supporter (and so not required to lie if questioned): but no express finding, either way, on that point has yet been made. Further, more consideration may be needed as to the milieu of his return, since that might bear on the risk of his being interrogated at all.
JS
This client had limited surplice activity in support of her asylum case. But there was no finding that such (limited) sur place activities as she undertook had come or would come to the attention of the authorities, indeed the implication of Immigration Judge Chambers' decision was to the contrary. Nor was there any finding that she was not, or would be perceived not to be, associated with the regime. But the court observed that, where PN's own evidence in all material respects was disbelieved and where (in the light of RT (Zimbabwe)) it can be said that further findings were needed, including on the issue of milieu, one cannot say that the appeal would be bound to succeed. EM (Zimbabwe), as restated in CM (Zimbabwe), was the applicable country guidance and would create a huddle for JS.
BC
This case too was remitted to the Upper Tribunal. The Immigration Judge found that the sur place activities would not become known. But the Immigration Judge did not, apparently, regard that as conclusive and went on to say that in any event the authorities would be "likely" to find such activities as "insincere". The court observed that the Immigration Judge did not (because of the view she took) make a finding as to whether BC was indeed a Zanu-PF supporter in reality and so did not consider whether she would be required to lie or be unable to demonstrate loyalty if stopped.
SM
It is to be noted that SM had accepted that he had once been a Zanu-PF member and had formerly worked for the government in its security unit. It may be that findings are required as to whether or not he was in truth still a Zanu-PF supporter, or at least likely to be perceived as such: and to explore whether he would be at any real risk of being stopped and interrogated or (if so) whether he would be required to lie or be unable to demonstrate loyalty. Questions of any risk would need also to be assessed by appropriate findings as to the milieu to which he would be returned.
SC
There was no consideration made about whether this appellant would be required to lie to assure his safety. It may well be said – as Ward LJ did – that a first step would be to assess whether he would be at risk of being stopped and interrogated: and it could be said that the findings of fact thus far tend to gainsay such a risk.
It cannot possibly be said that the appeal, if remitted, would be bound to succeed: indeed the findings thus far made suggest serious problems for SC's case. In any event, the true extent of SC's political convictions remains to be explored, as does a full assessment of the milieu to which he would be returned. It may also be noted that he has a mother and siblings and family network in Zimbabwe, who it is said have suffered no persecution; and the Immigration Judge had found it would be safe for him to return to them. This case was also remitted to the Upper tribunal for a rehearing on these points.
CM (Zimbabwe)
This determination of the Upper Tribunal (Blake J, Upper Tribunal Judge Lane and Deputy Upper Tribunal Judge Campbell) was promulgated on 31st January 2013. This is presently the current country guidance case on Zimbabwe. Basically it restates the case of EM Zimbabwe. It is of course a most detailed determination, with voluminous appendices.
i) The country guidance in EM (Zimbabwe) on the position in Zimbabwe as at the end of January 2011 was not vitiated. It was held that the tribunal had there been entitled to find that there had been durable change since RN (Zimbabwe).
ii) The only change required to the EM (Zimbabwe) country guidance arose from the Supreme Court decision in RT (Zimbabwe): see para 214.
iii) It was found that there was cogent evidence of a downward trend in politically motivated human rights violations in Zimbabwe; and there was no evidence to suggest that the nationwide findings made in RN (Zimbabwe) with regard to the risk of having to show loyalty to Zanu-PF continued to apply (paras 194-195).
The determination in CM (Zimbabwe), in effect endorsing the country guidance given in EM (Zimbabwe), makes it difficult for the appeals remitted to the Upper tribunal to succeed. Clearly there are – in the light now of CM (Zimbabwe) – potentially formidable obstacles in the way of each appellant. Their cases remain to be assessed on their individual facts, in the light of RT (Zimbabwe) as well as of the country guidance contained in EM (Zimbabwe) as restated in CM (Zimbabwe). In all the circumstances any one claiming asylum should take note of the above analogies and what the courts actually look at and to be credible as this is also important.
Vitalis Madanhi is the Principal solicitor of Bake and CO Solicitors, a firm specializing in Immigration and asylum law in Birmingham, UK. He can be contacted at vmadanhi@bakesolicitors.co.uk, Phone 01216165025, mobile 07947866649 www.bakesolicitors.co.uk
Disclaimer: This article only provides general information and guidance. It is not in any way intended to replace or substitute the advice of any solicitor or advisor. Each case depends on its facts. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information. /NEWZIMBABWE
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