Zimbabwe’s humanitarian crisis and fresh claims: could the current dire living conditions give rise to a breach of Article 3 for returnees?

The humanitarian situation in Zimbabwe seems to be deteriorating.

Can it be argued that the current humanitarian conditions in Zimbabwe are such as to give rise to an argument that if a returnee is removed to Zimbabwe, he or she will be subject to treatment contrary to Article 3 of the ECHR?

There are now almost daily news reports drawing attention to a country that is beset with widespread hunger, severe water shortages/lack of water, poor sanitation, food shortages and power blackouts.

Does removal therefore to a situation of economic and social rights violations as well as dire living conditions lead to a breach of Article 3?

Article 3 of the European Convention provides that: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Poor living conditions are capable of raising a claim under Article 3 if they reach a minimum level of severity, House of Lords in R v SSHD ex parte Adam, Limbuela and Tesema [2005] UKHL 66, at paragraph 7 Lord Bingham said: “… Treatment is inhuman or degrading if, to a seriously detrimental extent, it denies the most basic needs of any human being. As in all article 3 cases, the treatment, to be proscribed, must achieve a minimum standard of severity, and I would accept that in a context such as this, not involving the deliberate infliction of pain or suffering, the threshold is a high one. …… But I have no doubt that the threshold may be crossed if a late applicant with no means and no alternative means of support, unable to support himself, is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life. ..”

It is important to note as a starting point that current country guidance caselaw referred to below concludes in effect that arguments on breaches of Article 3 affecting a returnee to Zimbabwe do not hold out much prospects of success- equally important however is the fact that that caselaw was published over 6years ago and took into account background evidence relating to circumstances that differ to a considerable extent than pertains now.

The Court of Appeal, in the case of SG (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 940 (13 July 2012), found that ‘decision makers and tribunal judges are required to take Country Guidance determination into account, and to follow them unless very strong grounds supported by cogent evidence, are adduced justifying their not doing so’ (paragraph 47).

Can it therefore now be argued that very strong grounds supported by cogent evidence, justify not following country guidance in CM and EM in relation to the Upper Tribunal’s conclusions as regards a breach of Article 3, with the consequence that the current dire conditions in Zimbabwe can be viewed as analogous to those that pertained at the time RN was considered?

In order to plough through with that argument, there needs at some point to be some appreciation of relevant complex casleaw on the issues, so as to be able to apply the relevant legal tests in meeting the high threshold that applies in these type of cases. In essence, whichever test is to be applied, it may be possible depending on the facts of the case, to sustain an argument that removal of a claimant to Zimbabwe currently is likely to result in a breach of Article 3.

Severe humanitarian conditions- what do Home Office Policy Instructions say?

The Home Office acknowledge that severe humanitarian conditions can in certain circumstances meet the Article 3 threshold. Home Office Instruction, Considering human rights claims, https://www.gov.uk/government/publications/considering-human-rights-claims-instruction, states at page 21:

Other severe humanitarian conditions meeting the Article 3 threshold

 There may be some cases (although any such cases are likely to be rare) where the general conditions in the country – for example, absence of water, food or basic shelter – are so poor that removal in itself could, in extreme cases, constitute ill treatment under Article 3. Decision makers will still need to consider how those conditions would impact upon the individual if removed. Any such cases, if granted, would qualify for Discretionary Leave rather than Humanitarian Protection (because they are not protection-related cases), but leave should not be granted without reference to a senior caseworker”.

Other Home Office Instructions, Humanitarian Protection, Version 5.0, 7 March 2017, provide at page 12:

General violence and other severe humanitarian conditions

The Article 3 threshold is a particularly high one. In NA v the UK, the European Court of Human Rights (ECtHR) found that a general situation of violence in the country of return will not normally mean that removing an individual would be a breach of Article 3. It would only be in the most extreme cases of general violence, where there was a real risk of serious harm simply by virtue of exposure to such violence.

There may be exceptional situations where conditions in the country, for example, absence of water, food or basic shelter, are unacceptable to the point that return in itself would constitute inhuman and degrading treatment for the individual concerned. Factors to be taken into account include age, gender, ill-health, the effect on children, other family circumstances, and available support structures. Caseworkers must consider that if the state is withholding these resources from the individual, whether it constitutes persecution for a Refugee Convention reason as well as a breach of Article 3 ECHR. If it amounts to persecution for a refugee convention reason, they are likely to be a refugee.

In Sufi and Elmi v the UK the ECtHR considered how Article 3 applies to the question of generalised violence and a severe humanitarian situation as a result of such violence. It found that following NA v the UK, the sole question for the court to consider is whether, in all the circumstances of the case before it, there were substantial grounds for believing that the person concerned, if returned, would face a real risk of treatment contrary to Article 3. If this is established then their removal will breach Article 3, regardless of whether the risk arises from general violence, a personal characteristic of the individual or combination of both. However, the court found that it is clear that not every situation of general violence will give rise to such a risk and on the contrary, made it clear that general violence would only be of sufficient intensity to create such a risk in the most extreme cases where there was a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return.

The ECtHR went on to address the situation where dire humanitarian conditions, widespread displacement and the breakdown of social, political and economic infrastructures were predominantly due to direct or indirect actions of the parties to the conflict, who were using (in the case of Somalia, for example, at the time of the judgment) indiscriminate methods of warfare in densely populated urban areas with no regard to the safety of the civilian population. Following the approach adopted in M.S.S v Belgium and Greece, the court found that decision makers must consider a claimants’ ability to cater for their most basic needs, such as food, hygiene and shelter, their vulnerability to ill-treatment and the prospect of their situation improving within a reasonable time-frame”.

Current country guidance caselaw on Article 3

The Upper Tribunal in CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59 (IAC), notified on 31 January 2013 concluded that the country guidance given by the Tribunal in EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC) on the position in Zimbabwe as at the end of January 2011 was not vitiated in any respect by the use made of anonymous evidence from certain sources in the Secretary of State’s Fact Finding Mission report of 2010. The Tribunal in EM was entitled to find that there had been a durable change since RN (Returnees) Zimbabwe CG [2008] UKAIT 00083. The Country Guidance in EM therefore did not require to be amended, as regards the position at that time. It was stated in CM that the only change to the EM Country Guidance that was necessary to be made was as regards the position as at the end of January 2011 arising from the judgments in RT (Zimbabwe) [2012] UKSC 38.

Accordingly, the Upper Tribunal in CM, re-stated the EM Country Guidance in its Headnote with the changes underlined in paragraph 5 of its Headnote.

Both headnotes to CM and EM also state relevantly: “The economy of Zimbabwe has markedly improved since the period considered in RN. The replacement of the Zimbabwean currency by the US dollar and the South African rand has ended the recent hyperinflation. The availability of food and other goods in shops has likewise improved, as has the availability of utilities in Harare. Although these improvements are not being felt by everyone, with 15% of the population still requiring food aid, there has not been any deterioration in the humanitarian situation since late 2008. Zimbabwe has a large informal economy, ranging from street traders to home-based enterprises, which (depending on the circumstances) returnees may be expected to enter”.

Having regard to current conditions, the economy of Zimbabwe has significantly deteriorated, the availability of food has not improved, inflation is rising and local currency was re-introduced in June 2019. The humanitarian situation, by reference to reports, has been progressively deteriorating.

What did the Upper Tribunal previously state in RN?

RN (Returnees) Zimbabwe CG [2008] UKAIT 00083 (19 November 2008), was a country guidance case of the Upper Tribunal which for some several years led to the grant of refugee status for hundreds if not thousands of Zimbabwean claimants until it was overshadowed by EM and CM, however for now the relevance of this decision lies on the basis upon which it was concluded that return to Zimbabwe at that time, having regard to the evidence before the Tribunal, could depending on the facts of the case, lead to a breach of Article 3.

RN states as follows in material respects:

“5. General country conditions and living conditions for many Zimbabwean nationals have continued to deteriorate since the summer of 2007. Some may be subjected to a complete deprivation of the basic necessities of life, for example access to food aid, shelter and safe water, the cumulative effect of which is capable of enabling a claim to succeed under article 3 of the ECHR. But that will not always be the case and each claim must be determined upon its own facts.


248.We consider next whether the general country conditions in Zimbabwe, which are accepted to have deteriorated further since the Tribunal considered the evidence in the summer of 2007, are now so bad that there would be an infringement of the appellant’s rights under article 3 of the ECHR if she were required to return.

249.We do accept that discriminatory exclusion from access to food aid is capable itself of constituting persecution for a reason recognised by the Convention.

250.The collapse of the economy and agricultural production has led to severe food shortages. The supermarket shelves are empty so that even those who do have money to spend find it difficult to buy food. For the many others without work or access to any means of financial support access to food aid is essential. The evidence does now establish also that the government of Zimbabwe has used its control of the distribution of food aid as a political tool to the disadvantage of those thought to be potential supporters of the MDC. This discriminatory deprivation of food to perceived political opponents, taken together with the disruption of the efforts of NGOs to distribute food by means of the ban introduced in June 2008, amounts to persecution of those deprived access to this essential support.

251There is no doubt at all that the country conditions in Zimbabwe today are, for many of its citizens, harsh, and extremely difficult. There are many reports in the evidence before us that demonstrate the extent of the difficulties now facing ordinary Zimbabweans in their everyday living conditions. In the letter from the Foreign and Commonwealth Office produced by Mr Walker to which we referred above can be found this assessment:

The humanitarian situation in Zimbabwe is a major cause for concern for the international community. Zimbabwe is suffering from a major economic crisis. Unofficial estimates suggest inflation could now be as high as 100 million%. The economy, and particularly agricultural production, has shrunk by over 50% since 1996. Gold production is at its lowest levels for 90 years. Electricity is severely restricted, blackouts are common and water shortages last four days at a time in some areas. Basic food and fuel are difficult to obtain, with people turning to the black market where prices are too high for the majority. For example, a teacher’s monthly salary is less than the cost of a 10 kg bag of maize meal – which would last a small family about a week. The worst hit are the elderly caring for grand children orphaned by the country’s AIDS epidemic.

There has been a significant deterioration of the food supply situation in Zimbabwe over recent years. Factors such as drought and floods, low crop performance and limited irrigation have been exacerbated by the sharp economic decline. The annual crop and food assessment indicates that this year’s harvest was one of the worst in living memory and Zimbabwe is facing a deficit of over 1 million metric tons in cereals. In addition, Zimbabwe is suffering as a result of HIV and AIDS. The pandemic claims an estimated 2300 lives a week.”

252.It is not hard to add to the list of catastrophes. The heath and education services have collapsed. There is very little economic activity and for many no real prospect of employment. Even where work is available, the sheer scale of inflation means that the cost of travel to and from work often renders the effort pointless.

253.Mr Henderson refers in his skeleton argument and closing submissions to the approach taken by the Tribunal to this issue in HS and argues that the fresh evidence demonstrates that the regime does now bear responsibility for the desperate living conditions endured by many “ordinary” Zimbabweans, even if the Tribunal found that not to be the case in 2007. This is relevant to the article 3 threshold in this respect.


255.We take a similar view to the extent that each case will fall to be decided on its own facts. In some cases we can see that it will not be difficult for an appellant to succeed on this basis. The fresh evidence now before the Tribunal demonstrates that the state is responsible for the displacement of large numbers of people so as to render them homeless and, unless the misgivings expressed in the evidence before us about the very recent lifting of the ban on the distribution of food aid prove to be unfounded, the evidence demonstrates also that there has been a discriminatory deprivation of access to food aid which, plainly, is a deliberate policy decision of the state acting through its chosen agents. But the more recent evidence indicates that those agencies involved with the distribution of food aid, separate from that available to only some from the government, have once again been able to recommence operations, although subject to registration requirements.

256.On the other hand there will be many appellants who will be unable to make out such a case. Where a family has a home and access to some food provision, either from the state or an NGO or other agency, those harsh living conditions are unlikely to establish an infringement of article 3. Many Zimbabweans have relatives living abroad to whom they can look for support. Professor Ranger told us that money transfers were now difficult to arrange. In view of the collapsed economy and the damage to the banking system on account of hyperinflation, we do not find that difficult to accept. But he confirmed also in his oral evidence that there was no reason to believe that the process by which friends or relatives living abroad were able to arrange for groceries and other provisions to be ordered and paid for in neighbouring countries and delivered to homes in Zimbabwe had been disrupted.

257.Some Zimbabweans, especially those living close to the border, will be able to travel freely across into some neighbouring countries to trade, possibly seek employment, or to buy food and provisions. Some will be able to sustain themselves adequately on the basis of food aid and other relief from agencies able and willing to provide it. Thus, the position remains that each claim must be assessed on its own facts”

Although inflation is not as high as it was when RN was published, the current country conditions in Zimbabwe, by reference to readily obtainable evidence/news reports seem to indicate that the humanitarian crises resulting in severe food, water, electricity shortages has led to substantial deterioration in living conditions. The Zimbabwe regime is in large part responsible for the desperate living conditions endured by many ordinary Zimbabweans.

The “ Elmi & Sufi predominant causes” test versus the “ N exceptional circumstances” test

Relevant ECHR and domestic caselaw will need to be engaged with if to advance a claim of this nature based on a breach of Article 3. The position is neatly summarised by the Court of Appeal in their judgement in The Secretary of State for the Home Department v MA (Somalia) [2018] EWCA Civ 994 (02 May 2018):

1.The issues which we have to decide on this appeal include: …… whether Article 3 would be violated if a person to be returned is at risk of being subjected to living standards which fall below humanitarian standards in his country of origin…..”

 2.For the reasons given below, and in the light of the careful submissions that we have had on the important decision of the Court of Justice of the European Union (“CJEU”)…………, I have concluded that:


(4) Article 3 is not normally violated by sending a refugee back to his country of origin where there is a risk that his living conditions will fall below humanitarian standards.

34.This Court held in Said that Article 3 was intended to protect persons from violations of their civil and political rights, not their social and economic rights. In summary, the return of a person who was not at risk of harm because of armed conflict or violence would not in the case of economic deprivation violate Article 3 unless the circumstances were such as those in N v UK [2005] 2 AC 296, where a person was in the terminal stages of illness and lack access to facilities for treatment for his illness in his country of origin. In Said, this Court analysed the case law in the following lengthy passage:


[13] The GS case concerned a number of appellants whose removal was resisted on medical grounds. Permission to appeal had been given in six cases of illegal entrants, rather than “health tourists”. The House of Lords had held in N v Secretary of State for the Home Department [2005] 2 AC 296 that art 3 of the Convention did not oblige a contracting state to provide aliens indefinitely with medical treatment which was unavailable in their home countries, even if the absence of such treatment on return would significantly shorten their lives. It concluded that art 3 could be extended to prevent removal only in very exceptional circumstances. That was where the present state of health of the person who was subject to expulsion was such that, on compelling humanitarian grounds, he ought not to be expelled unless it could be shown that the medical and social facilities were available to him in the receiving state to prevent acute suffering while he was dying. Despite N’s condition (AIDS for which she would be unlikely to obtain suitable treatment or family support in Uganda) she was not in a condition where art 3 would prevent her removal.

[14] The House of Lords considered the decision of the Strasbourg Court in D v United Kingdom (1997) 24 EHRR 423 where the proposed removal of a man to St Kitts was held to violate art 3. In N v United Kingdom 47 EHRR 885, which followed the House of Lords’ decision, the Strasbourg Court itself summarised why exceptionally that was so. The very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him even a basic level of food, shelter or social support: para [42]. It narrowly circumscribed the circumstances in which the principle in the D case would apply to an expulsion case of someone who was suffering from a life-threatening illness. Its overall conclusions are found in paras 42 to 45 of the judgment. In short:

i) Those subject to expulsion are not entitled to remain to continue to benefit from medical, social or other forms of assistance provided by the expelling state. The fact that he would find himself in reduced circumstances, or with reduced life expectancy, does not of itself give rise to breach of art 3;

ii) The decision to remove someone suffering from a serious physical or mental illness to inferior facilities in the receiving country would give rise to a violation of art 3 only in a very exceptional case, where the humanitarian grounds against removal are very compelling;

iii) The circumstances of D’s case provided such exceptional and compelling circumstances.

iv) There may other exceptional cases but the high threshold should be maintained because “the alleged future harm would emanate not from the intentional acts or omissions of public bodies or non-state bodies, but instead from the a naturally occurring illness and the lack of sufficient resources to deal with it;

v) The Convention is essentially concerned with civil and political rights. There is no obligation to alleviate disparities in the availability of treatment across the world through the provision of free and unlimited medical treatment;

vi) These principles apply to the expulsion of any person with a serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised treatment not available in the receiving state.

[15] The significance of point (iv) in the summary is that the paradigm case, as Laws LJ described it at para 39 of the GS case, in which art 3 prevents removal involves the necessary risk of being subject to an intentional act which constitutes torture, or inhuman or degrading treatment. Medical cases, and I would add cases where the complaint is that someone returned would be destitute on arrival, do not fall within that paradigm. Laws LJ reviewed the decisions of the Strasbourg Court in the case of MSS, Sufi and Elmi, SHH and Tarakhel which, in addition to the medical exception narrowly defined in the D and N cases, illuminate the limited circumstances in which it is appropriate to depart from that paradigm in art 3 cases.

[16] In the MSS case the Strasbourg Court decided that Belgium would violate the art 3 rights of MSS, an Afghan asylum seeker, were he to be returned to Greece under the Dublin Convention. That was because of the dire conditions in which he would live in Greece whilst his claim was considered. Responsibility for those conditions rested with the Greek state. In Sufi and Elmi the applicants were Somali nationals who had committed criminal offences in this country. The Secretary of State proposed to deport them. At para 282 of its judgment the court said:

If the dire humanitarian conditions in Somalia were solely or even predominantly attributable to poverty or the state’s lack of resources to deal with a naturally occurring phenomenon, such as drought, the test in N v United Kingdom may well have been considered to be the appropriate one. However, it is clear that while drought has contributed to the humanitarian crisis, that crisis is predominantly due to the direct or indirect actions of the parties to the conflict. The reports indicate that all parties to the conflict have employed indiscriminate methods of warfare in densely populated urban areas with no regard to the safety of the civilian population. This fact alone has resulted in widespread displacement and the breakdown of social, political and economic infrastructures. Moreover, the situation has been greatly exacerbated by al-Shabaab’s refusal to permit international aid agencies to operate in the areas under its control, despite the fact that between one-third and one-half of all Somalis are living in a situation of serious deprivation.”

Al-Shabaab is an Islamist terrorist organisation. The state of affairs described in this extract from the judgment is precisely what has since improved; and it is the improvements which are reflected in the Somalia CG. But on the basis of the evidence as to the conflict at the time of the Sufi and Elmi the Strasbourg Court decided that the circumstances it had described meant that the approach in MSS, rather than N, should be followed.

[17] In para 57 of the GS case, Laws LJ described this as a “fork in the road, on the court’s own approach” between the two different types of case. He then referred to SHH v United Kingdom, concerning a severely disabled Afghan applicant, who sought to rely upon the MSS approach, but failed. His problems on return would result from inadequate social provision and want of resources. The approach in the N case was the correct one. Finally, he considered Tarakhel which was another case about returning asylum seekers under the Dublin Convention, this time to Italy, where there were said to be systemic deficiencies in reception conditions which were the responsibility of the Italian state. The MSS approach was applied.

[18] These cases demonstrate that to succeed in resisting removal on art 3 grounds on the basis of suggested poverty or deprivation on return which are not the responsibility of the receiving country or others in the sense described in para 282 of Sufi and Elmi, whether or not the feared deprivation is contributed to by a medical condition, the person liable to deportation must show circumstances which bring him within the approach of the Strasbourg Court in the D and N cases.

41.Moreover, on Mr Waite’s submission, the FTT failed to deal adequately with the question of remittances from abroad. First, the FTT had not considered the possibility that the respondent’s family in the UK would send him some money even if it was not enough to meet all his living expenses. Remittances from the UK were clearly a relevant factor: the Upper Tribunal in MOJ had heard evidence that in 2009 some £16m had been remitted from the UK to Somalia and there was no reason to think that that figure had diminished in subsequent years. Second, the FTT had not considered the possibility of the respondent taking advantage of the economic boom to which MOJ had referred (paragraph 407) and so gaining employment, which would enable him to support himself. In those circumstances, according to MOJ, he would not be a person who needed international protection. Third, the FTT had failed to consider that his financial position would be enhanced by the subvention of £1,500 that he would receive from the UK authorities (see paragraph 407(h), MOJ).

63.The analysis in Said, by which this Court is bound, is that there is no violation of Article 3 by reason only of a person being returned to a country which for economic reasons cannot provide him with basic living standards. Mr Sills however contends that that situation is brought about by conflict, which is recognised by the European Court of Human Rights as an exception to this analysis. It is true that there has historically been severe conflict in Somalia, but, on the basis of MOJ, that would not necessarily be the cause of deprivation if the respondent were returned to Somalia now. The evidence is that there is no present reason why a person, with support from his family and/or prospects of employment, should face unacceptable living standards.

69.The issue is whether the existing findings, so far as they go, should be preserved. I would accept the argument that it made decisions about the effect of return on the respondent which were not justified by the evidence. It concluded that he would have to live in conditions which fell below humanitarian conditions without considering whether he would be able to take advantage of Somalia’s “economic boom” and find remunerative employment. Nor did it consider whether some remittances could be made to meet some part of his living expenses in Mogadishu, as opposed to the full amount. I would, therefore, remit this matter to the FTT on the basis that it will need to make fresh findings about the respondent’s earning power, whether from remittances or earnings, if he returned to Mogadishu. In contrast, it will not need to revisit its conclusions about the significance of the respondent’s criminal offending, which have not been the subject of appeal by the Secretary of State”.

“N” test versus the “Sufi & Elmi” Test and Zimbabwe

• “N” test– If the dire humanitarian conditions in Zimbabwe are solely or even predominantly attributable to poverty or the state’s lack of resources to deal with a naturally occurring phenomenon, such as drought, the test in N v United Kingdom will be the appropriate one. The threshold is very high. In such circumstances, a decision to remove someone to inferior facilities in the receiving country would give rise to a violation of article 3 only in a very exceptional case, where the humanitarian grounds against removal are very compelling. To succeed in resisting removal on Article 3 grounds on the basis of suggested poverty or deprivation on return which are not the responsibility of the receiving country or others in the sense described in paragraph 282 of Sufi and Elmi, whether or not the feared deprivation is contributed to by a medical condition, the person liable to removal/deportation must show circumstances which bring him within the approach of the Strasbourg Court in the D and N cases.

• “Sufi & Elmi” test– If the dire humanitarian conditions/crisis in Zimbabwe can be argued to be predominantly due to the direct and indirect actions of the Zimbabwean ZANU(PF) Government, due to human actions, ie the intentional acts or omissions of public bodies or non-state bodies resulting in widespread breakdown of social and economic infrastructures, a Court may not consider the approach adopted in N v the United Kingdom to be appropriate. Instead the approach adopted in MSS v Belgium and Greece, which requires it to have regard to an applicant’s ability to cater for his most basic needs, such as food, hygiene and shelter, his vulnerability to ill-treatment and the prospect of his situation improving within a reasonable time-frame should apply. The Sufi and Elmi test therefore, placing reliance on MSS v Belgium and Greece applies a severity standard that is more liberal/less stringent since an “exceptional circumstances” requirement does not apply.

AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 00445 (IAC), is a case where the Upper Tribunal gave country guidance also in the light of the decision of the European Court of Human Right in Sufi & Elmi v the United Kingdom [2011] ECHR 1045. Although the country guidance touched on matters concerning northern Somalia (ie, the semi-autonomous entity of Puntland and the self-proclaimed but internationally unrecognised state of Somaliland), it was primarily concerned with the situation pertaining in central and southern Somalia, including Mogadishu. The major issues concerning risk on return to central and southern Somalia were the armed conflict taking place between, on the one hand, the Transitional Federal Government (TFG) and the African Union Mission in Somalia (AMISOM) and, on the other, the militant Islamists known as Al-Shabab; the threat of harm posed by AlShabab and (to a much lesser extent) the TFG to those living in their respective areas of control; and the humanitarian crisis, amounting in large areas to famine, occasioned by the most sustained drought in the region for many decades.

The Upper Tribunal considered and concluded follows in AMM:

129.Viewed in this light, the finding at [282] of Sufi and Elmi makes jurisprudential sense. If the predominant cause of the poor living conditions faced by a person is due to human actions in the State in question, rather than to naturally occurring phenomena, coupled with a lack of resources to deal with those phenomena, then the high threshold set by N need not be reached. As we understood Mr Eicke, however, the respondent considers this jurisprudence to be novel, rather than “clear and consistent”. It would, he said, in effect be possible in many cases to ascribe a State’s inability to tackle phenomena such as drought or HIV illness as due to the inefficiency, incompetence or corruption of the government of that State. To introduce such considerations would, therefore, be to undermine the settled jurisprudence in N v United Kingdom. It would, in any event, undermine the judgments of the House of Lords in N v Secretary of State for the Home Department [2005] 2 AC 296, which were binding on this Tribunal, irrespective of what the ECtHR might subsequently have held.

130.Whilst we note Mr Eicke’s criticisms of the reasoning process and recognise that such an important issue might have benefited from fuller consideration than that given at [278] to [283] of Sufi and Elmi, we conclude that there is nothing in that judgment on this point that is problematic from a jurisprudential point of view. The requirement in [282] of predominant cause is such as at least substantially to reduce, if not eliminate, the dangers to which Mr Eicke referred. It would, for example, be difficult to hold that the prevalence of a disease such as HIV/AIDS across sub-Saharan Africa is predominantly due to the corruption or other misfeasance of the governments of the countries in that part of Africa. On the other hand, whilst no one disputes that cholera is a naturally occurring disease, there can be no doubt that a government which imprisons people in conditions that are so insanitary as to allow cholera to flourish, would be acting in violation of Article 3. The test of “predominant cause”, upon analysis, seems to us to be part of the settled jurisprudence of the ECtHR and underlies the approach in such cases as N vUK and Kalashnikov.

477. On the evidence before us, we conclude that it is not the actions of the parties to the conflict which have caused the state of famine in southern and central Somalia and the present international humanitarian crisis but, rather, the worst drought there has been for 60 years. Although the effects of the drought have been noticeable for some time, and discussed in previous country guidance cases, the predominant factor behind the decision of families to leave their homes and trek long distances, in often appalling conditions, either to Mogadishu or to neighbouring countries, has been because their livestock have perished, and their subsistence farming is no longer sufficient to support them. It is impossible to accept the suggestion that the parties to the conflict have caused a breakdown in infrastructure, which has led these families to leave.

479.In so finding we have had regard to the very latest evidence, including the observations of Professor Menkhaus, that Somaliland is also affected by the drought but has avoided famine because it has social peace and governance. But the requirement of “predominant cause” cannot be so easily satisfied; and the evidence points to that cause being a natural one, albeit helped on by human beings. Thus, for example, the UN Secretary General’s report referred to deforestation exacerbating peoples’ vulnerability to drought and flood.

480. This does not, however, mean that, because they are not a predominant cause, the direct and indirect actions of the parties to the conflict fall to be left out of account in deciding whether the humanitarian conditions in southern and central Somalia are such as to bring Article 3 into play. On the contrary, as we have already indicated, it seems to us that those actions have a very real role in the assessment of whether, in terms of the law as set out in N v United Kingdom, the present situation is one of those “very exceptional cases” in which humanitarian conditions trigger Article 3.

Looking at the evidence in this holistic way, we find that the present situation in southern and central Somalia is, indeed, one of those “very exceptional case”.

481.In so finding we have reminded ourselves of Mr Eicke’s submissions, as recorded in Part H, which were effectively reiterated in the respondent’s October written submissions, to the effect that one must beware of diluting the N test by bringing into account such things as the incompetence or corruption of a government of a State, as a factor in making its inhabitants more prone to the effects of climate and disease, than are those in the developed world. There are, regrettably, very many countries whose system of government could be said to aggravate the adverse effects of natural phenomena. But it is the very prevalence of such cases that, we consider, answers Mr Eicke’s objection: they are not capable of underpinning a finding that a “very exceptional” situation exists.

482.The contrast between such cases and that of southern and central Somalia is stark, as the evidence shows. A test founded on exceptionality must still be capable of being met; otherwise it is bogus. We consider that the widespread famine, unique to our planet at the present time, coupled with the exacerbating factors we have described, discloses a situation of sufficient exceptionality to cross the threshold set in N. It is this mix of factors that makes the situation exceptional, not the predominance of the parties’ actions that causes the threshold to be lowered.

487.However, we go further. Given the severe nature of the humanitarian crisis, worse even than when the ECtHR considered the position, a person who would in normal conditions have had the ability to go to his or her home village, which is unaffected by the fighting but which is within an area in which there has been a declaration of famine, should at present and as a general matter be assumed to face in that village the kind of desperate situation as is disclosed in the background evidence, with the result that, lacking means of sustenance, he or she would have to try to take refuge somewhere else, such as many thousands of others are doing. Leaving aside for this purpose the issue of Al-Shabab, we do not consider that even the possible availability of the United Kingdom Government money for return (as to which there is an evidential dispute) is likely materially to affect the position in this regard. In areas where there simply is no food, having money is unlikely to put a person in a better position; everyone in such areas is reasonably likely to be reliant on international aid. (We note Professor Menkhaus’ comment that “there is food on the market in much of Somalia”, but we are here considering a rural person, where the only food was from the land and that land is now barren.) Thus, although we have, like the Strasbourg Court, used the likelihood of ending up in an IDP camp as a general touchstone for Article 3 harm, the basic position is, rather, that the generality of those hypothetically removed to southern and central Somalia at the present time will face Article 3 violations by reason of the humanitarian conditions prevailing in the region”.

It may be arguable therefore that the predominant cause of the dire living conditions prevailing in Zimbabwe is not only as a result of the drought, which is a naturally occurring phenomenon but also due to human actions, ie the intentional acts or omissions of public bodies or non-state bodies. The Zimbabwean ZANU(PF) government has been unable to tackle the humanitarian circumstances due to inefficiency, incompetence or corruption. There appears to be official indifference in a situation of serious deprivation or want incompatible with human dignity. A Zimbabwean returnee with no family support or other associations, unable to obtain food aid and with no prospects of employment, would be returning to a state of extreme poverty, unable to cater for their most basic needs: food, hygiene and a place to live.

Caselaw and Gaza – evidence showed that the “predominant cause” test in a humanitarian crisis was arguable

In MI (Palestine) v Secretary of State for the Home Department [2018] EWCA Civ 1782 (31 July 2018), the Court of Appeal considered the case of a national of the Occupied Palestinian Territories who arrived in the United Kingdom after leaving Gaza. The Court of Appeal observed that the Tribunal Judge who dismissed the claimant’s appeal had noted that the Upper Tribunal in the Country Guidance case of HS (Palestinian-return to Gaza) Palestinian Territories CG [2011] UKUT 124 (IAC), in 2011 considered the situation against the background of the infrastructure of Gaza being significantly depleted with problems of access to electricity and clean water and limits to products brought into the territory, but still considered the circumstances had not reached a level where Article 3 was engaged. In dismissing MI’s appeal, the Judge commented that arguably little had changed since 2011 save for further conflict and destruction following a period of rebuilding and development. The Judge also noted that aid to rebuild the country was being brought in, albeit more slowly than anyone would like. The Tribunal Judge also observed that the claimant and his wife did have family in the Gaza Strip. Her family were UNRWA refugees and had access to healthcare facilities. The Judge stated that the country conditions were not good but did not in themselves engage Article 3. He said that those representing the claimant had accepted that the situation currently existing in the Gaza Strip did not reach the necessary threshold.

Before the Court of Appeal, the following was argued on behalf of the claimant:

• The Upper Tribunal Judge had misdirected himself in law in applying the test in N v SSHD since this was not a case where it was argued that the wife’s medical condition per se rendered their removal a breach of Article 3. Rather the claimant’s case was that whether the conditions in Gaza gave rise to a breach depends upon the characteristics of the individuals and a highly relevant characteristic was the state of the wife’s health; the predominant cause of the humanitarian crisis in Gaza was the conflict between Israel and Hamas so that the N test is not applicable: see Sufi & Elmi v United Kingdom (2012) 54 EHRR 9. Given that the dire humanitarian conditions in Gaza were a result of the direct and indirect actions of the parties to the conflict in Gaza, the Judge should have applied the test enunciated at paragraphs 282 and 283 of Sufi & Elmi. The Judge had also erroneously assumed that this was just a medical case whereas the appellant’s case was and had been that they faced inhuman and degrading treatment in Gaza as a result of the dire humanitarian conditions there and their personal circumstances, including her mental health, the fact that she was pregnant (the child was now nearly 3) and that the appellant’s family home in Gaza had been destroyed and the family lived in difficult conditions without electricity or clean water.

• In considering whether the removal of the claimant and his wife would breach Article 3, the Judge failed to consider cumulatively all the relevant factors, instead finding the country conditions in themselves did not engage Article 3 and the wife’s medical condition did not in itself engage Article 3.

• In concluding that in reality nothing had changed in Gaza since the Country Guidance case in 2011, the Judge failed to have proper regard to the country evidence before him, which demonstrated a significant deterioration in Gaza as a result of the conflict in 2014. Reliance was placed upon the evidence of the country conditions which had been before the Upper Tribunal for two purposes. First, that the consequences of the Israeli military operation known as Protective Edge in 2014 had been far more devastating in terms of the destruction of and damage to homes and infrastructure than previous military operations and had caused difficulties for UNRWA. Conditions were particularly bad for women and children. Second, the evidence demonstrated that the predominant cause of the dire humanitarian conditions in Gaza was the ongoing conflict between Israel and Hamas. The Judge had simply not analysed this country evidence properly. If he had done, he could not have concluded that little had changed in Gaza since the Country Guidance case in 2011. Furthermore, if he had analysed the country evidence properly, he could not have dealt with the case on the basis that the N test was applicable.

On behalf of the Secretary of State the following was argued:

• The decision of the Court of Appeal in Said v Secretary of State for the Home Department [2016] Imm AR 1084, demonstrated that it was only in very narrow circumstances that the Court would allow an Article 3 claim which departed from the paradigm. If there was to be such departure, it had to be on the basis of principle which here was that the approach adopted in Sufi & Elmi only applied where there was an element of intentionality on the part of the parties to the conflict. The al-Shabaab, an extremist organisation was corralling the population in certain areas and refusing them access to international aid. The situation in Palestine was not comparable not least because of the permanent presence of UNRWA to protect the refugee population. If the Sufi & Elmi approach were applied here, it would apply to other receiving states where there were dire humanitarian conditions.

• Reliance was placed upon the decision of the Strasbourg Court in SHH v United Kingdom (2013) 57 EHRR 18. That case concerned an Afghan national who was disabled in a rocket launch attack and came to the United Kingdom some four years later. The Court held that the N test applied to his Article 3 claim and distinguished Sufi & Elmi holding at [91] that although the situation in Afghanistan was very serious, it could not be attributed to the ongoing conflict. It was submitted on behalf of the Secretary of State that the same conclusion would have been reached here even if the Sufi & Elmi point had been raised.

The Court of Appeal noted that the case of MSS v Belgium and Greece and Sufi & Elmi v United Kingdom (2012) 54 EHRR 9 was of particular relevance in the present context. It was noted that in that case, the Government contended that the appropriate test for assessing whether the dire humanitarian conditions reached the Article 3 threshold was that set out in N v United Kingdom so that humanitarian conditions would only reach the threshold in very exceptional cases where the grounds against removal were compelling. The Strasbourg Court rejected that contention in the particular circumstances of that case because the humanitarian crisis in Somalia was predominantly due to the direct and indirect actions of the parties to the conflict there, so that the “very exceptional circumstances” test in N was not applicable.

The Court of Appeal also reiterated that in Sufi & Elmi, the court avowedly followed MSS (paragraph 283). In Sufi & Elmi, the critical factor was that the “crisis is predominantly due to the direct and indirect actions of the parties to the conflict”: paragraph 282. This was closer to the paradigm than the ill-treatment in question in MSS, for it must have involved deliberate acts. Thus in MSS and Sufi & Elmi the court looked for particular features which might bring the case within Article 3, and found them – in Greece’s legal duties and the applicant’s status as an asylum-seeker, and in the nature of the crisis in Somalia.

The Court of Appeal concluded as follows in MI (Palestine):

• The Deputy Upper Tribunal Judge failed to have regard to the approach adopted in Sufi & Elmi and therefore failed to consider properly what test should be applied to the facts of the present case. He only considered and applied the N test and therefore misdirected himself.

• It was noted that it had been submitted on behalf of the Secretary of State that, even if the Court reached that conclusion, the Court should dismiss the appeal because, as SHH and Said demonstrated, the less stringent Sufi & Elmi test would not apply in the present case as it could not be said that the dire humanitarian conditions in Gaza were such as were attributable to the direct and indirect actions of the parties to the conflict in Gaza or that the element of intentionality was present.

• The Court of Appeal however concluded that having considered the country evidence referred to on behalf of the claimant, the Court considered that it was sufficiently arguable that the conditions in Gaza are and were attributable to the direct and indirect actions of the parties to the conflict within the meaning of [282] of Sufi & Elmi and that there was an element of intentionality if that was a necessary ingredient before the approach in that case will be adopted.

• It was also considered that the Deputy Upper Tribunal Judge failed to have proper regard to the country evidence, in particular the evidence as to the seriously worsened position after the Israeli military operation in 2014.

• The Court of Appeal allowed the appeal and remitted the case for reconsideration of the evidence and the law by a differently constituted Upper Tribunal. It was stated that whether the case was one to which the Sufi & Elmi approach should apply would be a matter for that Upper Tribunal to decide.

• The Court of Appeal also stated that their attention was drawn to the fact that the Country Guidance in HS not only pre-dated the decision in Sufi & Elmi but also dealt with the position as it was up to 2010, some years before the 2014 military operation with its serious impact on the population and the infrastructure. It was noted that Counsel had suggested that perhaps a new Country Guidance case on Gaza should be considered. The Court of Appeal concluded that ultimately it was a matter for the Upper Tribunal, not the Court, although the Court could see the sense of the suggestion given that, on any view the Country Guidance in HS was somewhat out of date.

What a claimant might need to address to advance an Article 3 claim

Country guidance caselaw relating to Somalian and Iraqi cases in MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC) and AAH (Iraqi Kurds – internal relocation) Iraq CG UKUT 00212 (IAC), might, as summarised within the Headnotes give an indicator of the sort of matters that a claimant might need to address:

Explain why on returning to Harare, Bulawayo or their home area, after a period of absence, the returnee will be unable to look to his nuclear family, if he has one living in the city, for assistance in re-establishing himself and securing a livelihood. If the returnee has family members living in Zimbabwe that family may be able to accommodate him. In such circumstances the returnee would, in general, have sufficient assistance from the family so as to lead a “relatively normal life”, which would not be unduly harsh. It should nevertheless be important for decision-makers to determine the extent of any assistance likely to be provided by the family on a case by case basis.

If it is accepted that a person facing a return to Harare or Bulawayo or their home area after a period of absence has no nuclear family or close relatives in the city to assist him in re-establishing himself on return, there will need to be a careful assessment of all of the circumstances. These considerations will include, but are not limited to:

• circumstances in Harare or Bulawayo or their home area before departure;

• length of absence from Harare or Bulawayo or their home area;

• family or other associations to call upon in Harare or Bulawayo or their home area ;

• access to financial resources;

• prospects of securing a livelihood, whether that be employment or self employment;

• availability of remittances from abroad;

• means of support during the time spent in the United Kingdom;

• why his ability to fund the journey to the West no longer enables a claimant to secure financial support on return

If the returnee cannot live with a family member, show, following evidenced research the cost of rent in Harare or Bulawayo or their home area. The cost of renting may be beyond the returnee’s reach.

It may be that only those with no associations or family support who will not be in receipt of remittances from abroad and who have no real prospect of securing access to a livelihood on return who will face the prospect of living in circumstances falling below that which is acceptable in humanitarian protection terms.

In considering whether the returnee would be able to access basic necessities, account must be taken of the fact that failed asylum seekers are entitled to apply for a grant under the Voluntary Returns Scheme, which could give then access to £1500. Consideration should also be given to whether the returnee can obtain financial support from other sources such as (a) employment, (b) remittances from relatives abroad, (c) the availability of ad hoc charity or assistance from NGO’s.

Skills, education and experience: unskilled returnees who have been away from Zimbabwe for a substantial period of time may be at the greatest disadvantage, however a returnee may be expected to have regard to the informal sector, ie vending, street trading or home-based enterprises, which (depending on the circumstances) returnees may be expected to enter.

Finally, it is important to note that even where a returnee is expected to relocate to Harare or Bulawayo, CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 00059(IAC) itself states in its headnote:

“(8) Internal relocation from a rural area to Harare or (subject to what we have just said) Bulawayo is, in general, more realistic; but the socio-economic circumstances in which persons are reasonably likely to find themselves will need to be considered, in order to determine whether it would be unreasonable or unduly harsh to expect them to relocate”.

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