In The Secretary of State for the Home Department v MM (Zimbabwe)  EWCA Civ 797 (22 June 2017), the Court of Appeal very recently sought to advocate a less restrictive approach to an Article 3 mental health condition claim from a Zimbabwean national, yet within its judgment, glaringly fails to refer to the ECHR case of Paposhvili, from which that approach can arguably be said to originate from.
In relation to the raised asylum issues, the Court of Appeal further undertook an analysis of the following current guidance case law in relation to Zimbabwe:
CM (EM country guidance; disclosure) Zimbabwe CG  UKUT 59 (IAC
EM and Others (Returnees) Zimbabwe CG  UKUT 98 (IAC)
HS (returning asylum seekers) Zimbabwe CG  UKAIT 94
AA (Risk for involuntary returnees) Zimbabwe CG  UKAIT 61.
SM and Others (MDC – Internal flight – risk categories) Zimbabwe CG  UKAIT 100
and approving CM (EM country guidance; disclosure) Zimbabwe CG  UKUT 59 (IAC), held that in allowing MM’s appeal on refugee grounds, the FTT Judge had erred in his approach to risk of ill-treatment on return.
Less restrictive approach advocated by the Court of Appeal in Article 3 claims:
At paragraph 16 their judgement the Court of Appeal stated:
“…..Also, I think it would be desirable for the Upper Tribunal to look again at whether MM has a good basis for resisting deportation under Article 3 of the ECHR on the grounds of the likely radical deterioration in his mental health if he is returned to Zimbabwe. Although we did not have the benefit of argument on this point, I have some doubt whether the principle to be applied under Article 3 in this case is necessarily as restrictive as the FTT thought it was. It seems to me to be arguable that to return someone to a country where they are likely to suffer a profound mental collapse, possibly amounting in effect to a destruction of their personality, might infringe the right under Article 3 to protection against torture and inhuman treatment and might qualify as one of those very exceptional cases in which lack of medical services in the home country might constitute a bar to deportation (see D v United Kingdom (1997) 24 EHRR 423 and N v United Kingdom (2008) 47 EHRR 885, GC). It may be that MM will face an uphill struggle to make out such a claim, but I consider that this issue should be open for fresh consideration by the Upper Tribunal when the case is remitted to it. Thus, although I consider that the FTT erred in treating this factor as decisive under Article 8 in circumstances in which there was no violation of Article 3, it is possible on a fresh assessment under Article 3 that MM could succeed under that article”
The Court of Appeal therefore concluded that the Upper Tribunal should examine afresh whether MM did have a good claim to resist deportation under Article 3 on the grounds of the likely effect upon him of being deprived of medical treatment for his severe schizophrenia.
Summary background to asylum claim:
MM arrived in the United Kingdom in August 2002 and was granted indefinite leave to remain as a refugee on the ground that he faced persecution in Zimbabwe by the ruling ZANU-PF regime as a result of his activities in support of the Movement for Democratic Change (“MDC”) opposition party. MM claimed that he organised campaigns and rallies, distributed leaflets, canvassed for new members and overall was very active as a MDC member, although in his asylum interview he said he did not have a high position. According to MM, he was detained without charge for 14 months by reason of his activities, and then released. During his detention, he was beaten. MM had not continued with his political activities since he had been in the United Kingdom.
MM became subject to deportation proceedings. By decision letter dated 17 April 2015, the Secretary of State set out her decision to refuse MM’s protection and human rights claim proposing deportation to Zimbabwe and also her decision to cease treating him as a refugee for the purposes of the Refugee Convention.
In allowing his asylum appeal, the FTT held that the Secretary of State had failed to establish that MM would not face a real risk of ill-treatment upon return to Zimbabwe, so she could not cease to treat him as a refugee for the purposes of the Refugee Convention and in addition his deportation there would violate his rights under Articles 2 and 3 of the ECHR. Relevantly, the FTT Judge also found as follows:
“There have been no detailed findings of fact about the extent of [MM’s] involvement in the MDC. I have seen his asylum interview in which he states that he was an active member. That evidence was clearly accepted by [the Secretary of State] in 2002 as his asylum claim was granted and there was no need for the matter to go to appeal and have findings of fact made. Although [MM] does not assert that he has been involved in political activity in the UK, I find that [the Secretary of State] has not produced evidence to substantiate her assertion that [MM] has no political or MDC profile. There is insufficient evidence for me to make findings about the level of his MDC profile and whether there would be parts of Zimbabwe where he would be safe.
Whilst in a normal asylum appeal the burden is on the appellant to prove that there is a real risk of persecution, here, as the risk has already been accepted, it is for [the Secretary of State] to show that it no longer exists. Taking all the evidence into account, I find that [the Secretary of State] has not shown that it would now be safe for [MM] to return to Zimbabwe. I agree with Miss Rutherford’s [counsel for MM] conclusion that [the Secretary of State] has not shown that there has been a fundamental and durable change in Zimbabwe and I find that [MM] is still entitled to refugee status on the basis of his political opinion.”
CM(Zimbabwe) approved by the Court of Appeal:
The Court of Appeal held as follows;
The FTT erred in its approach in relation to risk of ill-treatment on return to Zimbabwe.
A durable change in conditions in a country of nationality that results in a refugee having no genuine fear of persecution on his return will qualify as a relevant change in circumstances for the purposes of Article 1C(5): EN (Serbia) v Secretary of State for the Home Department  EWCA Civ 630;  QB 633, -.
The Court of Appeal however considered that Article 1C(5) was framed more widely than this, and requires examination of whether there has been a relevant change in “the circumstances in connexion with which a person has been recognised as a refugee”. The Court said that 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 for the purposes of Article 1C(5) 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 he 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. The Court of Appeal stated that there had been some changes in the general political situation in Zimbabwe since MM left the country, as set out in the latest country guidance case of CM (EM country guidance; disclosure) Zimbabwe CG  UKUT 59 (IAC).
The Court noted that there had also been some change in MM’s personal circumstances, in that he had not engaged in political activities for many years. Both changes appeared to be durable in nature. On one interpretation of his account, it appeared that even in 2002 MM’s involvement with the MDC was at a low level, so it might well be that a prolonged period of political inactivity on his part will have significantly reduced his political profile as a hostile person so far as the ZANU-PF authorities are concerned. There was therefore a serious question whether Article 1C(5) applied in his case. The FTT was noted not to have properly addressed this question in their decision.
The Court of Appeal stated that the country guidance case of CM confirms findings already made in the country guidance case of EM and Others (Returnees) Zimbabwe CG  UKUT 98 (IAC) to the effect that “it was in general not the case that significant problems would be faced by those without a significant MDC profile, or who would otherwise engage in political activities likely to attract the adverse attention of ZANU-PF” (CM at ).
The Court noted that before the FTT, the Secretary of State’s submission was that MM’s present political profile as a MDC supporter was at such a level as not to be “significant” so as to meet the standard for adverse political interest from ZANU-PF as set out in CM. The FTT judge said that there was insufficient evidence before him to make findings about the level of MM’s MDC profile and whether there would be parts of Zimbabwe where he would be safe. In the Court of Appeal’s judgment, this was an inappropriate abdication of responsibility by the FTT. The Secretary of State had made out a seriously arguable case that MM fell within the scope of Article 1C(5) on the evidence available and in the light of the country guidance in CM, with the result that (if correct) MM could not show that his removal to Zimbabwe would breach the United Kingdom’s obligations under the Refugee Convention. In the Court’s view, the FTT should have addressed that case and made relevant findings of fact on the basis of the evidence available in order to decide for itself whether there had been a sufficient change in “the circumstances in connexion with which MM has been recognised as a refugee” as to engage Article 1C(5), and hence decide for itself – as it was required to do – whether MM’s removal to Zimbabwe would breach the United Kingdom’s obligations under that Convention. The FTT judge’s ruling that the Secretary of State “has not shown that it would now be safe for MM to return to Zimbabwe” was the product of the judge’s decision that a presumption to that effect should be applied, without proper examination of the evidence by him.
The Court of Appeal noted that submissions on MM’s behalf sought to meet this objection by arguing that the country guidance in CM does not cover the risk which a returning failed asylum-seeker would face in Zimbabwe upon being screened at the airport in Harare. The Court of Appeal concluded that it was clear that the guidance in CM covers what happens in terms of screening at Harare airport. The Upper Tribunal in CM examined up-to-date evidence about this (see ) and specifically made findings about the risk arising from the screening procedures at Harare airport at paras. -.
The Court of Appeal considered that it was true that the Upper Tribunal in CM confirmed the country guidance given in HS (), but that was because it rightly understood the findings in HS as being to the same effect as the findings it felt able to make on the further evidence in CM, namely that there is no scrutiny at the airport for positive indications of loyalty to ZANU-PF () and that “low level MDC supporters” are not the sort of activists whom the Tribunal in HS thought likely to fall foul of the authorities at the airport (). The general guidance finding in CM at paragraph 211, was in line with this. The Court of Appeal stated that the important point for present purposes in relation to both paragraph 205 and paragraph 211 was the finding that the existence of a real risk of ill-treatment depends upon an individual’s profile as a MDC supporter being significant. It was the Secretary of State’s case before the FTT that MM’s profile as a MDC supporter was not significant as circumstances presently stood, which submission the FTT failed properly to evaluate.
As regards the guidance in HS about the risk of return at Harare airport, the Court of Appeal stated that it sufficed to say that the Upper Tribunal in CM was correct in its understanding of the findings made in HS. The Tribunal in HS did not say that any level of involvement with the MDC in the past gave rise to a risk of ill-treatment at the airport. The Tribunal in HS adopted and re-affirmed findings made in the earlier cases of SM and Others (MDC – Internal flight – risk categories) Zimbabwe CG  UKAIT 100 and AA (Risk for involuntary returnees) Zimbabwe CG  UKAIT 61. As was found in SM, those deported from the United Kingdom to Zimbabwe are subject to interrogation on return () and “those who are suspected of being politically active with the MDC would be at real risk” (, noting the present tense). It was noted that at para.  in SM the Tribunal rejected a submission that every former member of the MDC faces a real risk of ill-treatment on return, saying instead that “each case must depend upon its own circumstances” in order to see whether the background and profile of an individual is such as to make it likely that he would be of interest to the authorities. The Tribunal in HS did not depart from this approach, which is in line with the approach of and findings made by the Upper Tribunal in CM.
The Court of Appeal concluded that the result of its analysis was that the FTT erred in its approach in respect of the Refugee Convention and the case should be remitted to the Upper Tribunal for re-determination.
Despite the glaring failure to refer to Paposhvili in its judgement, it is welcome that the Court of Appeal has sought to encourage Tribunal Judges to approach Article 3 medical condition cases from a less stringent position.
The First Tier Tribunal’s decision which allowed MM’s appeal was promulgated on 15 July 2015. Paposhvilli was notified in December 2016 and as such the FTT ‘s approach at the time could only have sought to closely follow the approach in D v United Kingdom (1997) and N v United Kingdom (2008). It is reasonable to expect that the Upper Tribunal will now grapple with the issues arising out of Paposhvili in a reported judgement- the Court of Appeal has surely given the Tribunal the green light to do so.
The Court of Appeal summarized and reiterated, having regard to country guidance caselaw, that not every former member of the MDC faces a real risk of ill-treatment on return, as each case must depend upon its own circumstances in order to see whether the background and profile of an individual is such as to make it likely that he would be of interest to the Zimbabwean authorities. In effect, generally, low level MDC supporters are concluded not to be the sort of activists whom the Tribunal in HS thought likely to fall foul of the authorities at the airport.
The Home Office are likely to take advantage of the Court of Appeal’s current analysis of Zimbabwe country guidance caselaw- it will not be surprising to see increased refusal decisions emanating from the Home office focused on assertions that a claimant is a low level supporter/member- be it in relation to MDC activities or other protest based movement activities, regardless of whether or not they are carried out in the UK. It is always open of course for a genuine activist to be as active as they would wish and provide supportive evidence, my view however is that in relation to the new type protest movement that has emerged in relation to Zimbabwe in the past year, if this continues, separate new country guidance is required from the Upper Tribunal in an appropriate case.
Having regard to the Court of Appeal’s considerations above, whether in relation to cessation of refugee status or an application of the recently introduced “safe return reviews”, for affected persons, it is important that those holding refugee status note very carefully that the Court of Appeal has put this forward: “ it might well be that a prolonged period of political inactivity on his part will have significantly reduced his political profile as a hostile person so far as the ZANU-PF authorities are concerned”.