Is MS (Zimbabwe) v Secretary of State for the Home Department  EWCA Civ 941 (22 June 2021) entirely unwelcome “bad news” for Zimbabwean asylum claimants in the UK, or
- does it merely maintain the status quo in refusing to depart from CM (EM country guidance: disclosure) Zimbabwe CG  UKUT 59 (IAC)?
- in refusing to depart from CM (EM country guidance: disclosure) Zimbabwe CG  UKUT 59 (IAC), is the decision in MS(Zimbabwe) merely reflective of the particular evidence that was before the Upper Tribunal and Court of Appeal?
- is there room for other categories of Zimbabwean claimants( i,e those not in MS’s position) to continue to seek protection in the UK, without being restricted to showing a “significant MDC profile”?
MS arrived in the United Kingdom in 2004, when he was 14. He had indefinite leave to enter to join his mother. She had been recognised as a refugee after a successful appeal against the Secretary of State’s decision to refuse her claim for asylum. MS’s mother had been recognised as a refugee because of her actual or imputed political opinion as a supporter of the Movement for Democratic Change (‘the MDC’). When she applied for asylum, even low-level supporters of the MDC were at risk. MS’s refugee status was linked to his mother’s. MS’s father had stayed in Zimbabwe. He died in 2012. MS went back to Zimbabwe for the burial. MS also returned for about ten days in 2015, with his two sisters, to visit their father’s grave.
On 11 June 2012, MS was convicted, on his plea of guilty, of a count of robbery, for which he received a sentence of eight years’ imprisonment.
The Secretary of State decided to revoke his refugee status and to deport him to Zimbabwe. The First Tier Tribunal(FTT) allowed MS’s appeal from the decision of the Secretary of State to revoke his refugee status and to deport him to Zimbabwe. However the Upper Tribunal allowed the appeal of the Secretary of State from the decision of the FTT, deciding that the Refugee Convention had ceased to apply to MS.
MS’s reliance on a country expert report
It was argued on MS’s behalf that the Upper Tribunal failed to give ‘proper consideration to crucial aspects of expert evidence’ about the risk faced by people who cannot show their loyalty to ZANU PF.
The appeal was noted by the Court of Appeal to raise a short point about the Upper Tribunal’s approach to the evidence in the Report.
The following arose in relation to the Report:
- It was contended that the Upper Tribunal had failed, without explanation, to adopt the conclusions in paragraph G of the Report’s ‘Brief Summary of Findings, which stated:‘With due consideration to the profile of [MS], the evidence available to me, and my own in-country knowledge, it is my opinion that it is plausible that [MS] will be identified as a person of adverse interest to SSF and a person with an imputed political opinion. It is my opinion that those who are identified at the airport as being of sufficient interest to merit further interrogation are at real risk of harm. As a person who has benefitted from refugee status in the UK and is the son of a political refugee, it is plausible that [MS] is at risk of persecution by the CIO on his arrival at Harare International Airport, including arbitrary arrest, detention, torture and ill-treatment as a result of his imputed political opinion and his inability to demonstrate loyalty to ZANU PF’.
- The purpose of the Report was to support MS’s claim that he had a fear of persecution on Convention grounds if he were deported to Zimbabwe.
- It was noted that the Report had two premises: MS will have a political opinion imputed to him, and he will not be able to show that he is loyal to ZANU PF.
- Those representing MS submitted on his behalf that a premise of the Report was that he had no personal political profile, but that it showed that the state now targets all those who are not supporters of ZANU PF.
Issues of concern noted by the Court of Appeal in relation to the Report
The Court of Appeal raised the following issues concerning the expert Report:
- The first two sentences of paragraph 56 of the Report stated that the police were out ‘in full force’ in Bulawayo and Harare on 30 July 2020. They blocked streets and they did ‘random searches’ of commuters. The Court noted that those representing the Secretary of State pointed out that no context for this incident was provided and no checkable source.
- Paragraph 57 of the Report stated that on 2 August 2020, an armed convoy of the police and the army drove through the Central Business District in Bulawayo, and prevented the people who lived there from buying food or using cash points. The source for this, referred to in a footnote, was ‘Telephone interviews 2 August 2020 with research respondents who are also residents of suburbs of Bulawayo’.
- The source for the second part of paragraph 57 of the Report was a telephone interview with a ‘former Scottish police constable who was director of a charity in Zimbabwe’, on 17 October 2018. The person was not identified. The Court stated that source was relied on for this sweeping assertion: ‘The current country conditions in Zimbabwe leave human rights campaigners, government critics, political opposition, those suspected of being members of the political opposition, or those unable to demonstrate affiliation with ZANU PF, at higher risk of state violence including torture, rape and death than was the case in 2007/2008, or, indeed, since 1999’.
- In paragraph M, the ‘Brief Summary’ asserted that ‘having to demonstrate loyalty to ZANU PF to obtain food aid is country wide and not restricted to rural communities.’ MS was said to be ‘at risk of serious harm and persecution if he is unable to demonstrate loyalty to ZANU PF in exchange for food aid. This is contrary to paragraph 29 of the Home Office Notice of Decision of 13 December 2013.’ The Court of Appeal noted that this sweeping assertion was based on one example: an incident which as described in the Report when, on 10 July 2019, a ZANU PF activist demanded, before giving food aid to villagers (in one particular village) that they showed that they were loyal to ZANU PF. The Court also observed that it had not been able to find a relevant Home Office decision dated 13 December 2013 in the papers for MS’s case, which led the Court to wonder whether this paragraph had been copied from a report in a different case.
- Paragraph 47 of the Report referred to an attack by security forces on an MDC MP in Bulawayo in August 2019. That attack was said to be ‘contrary to the claims of paragraph 30 of the Home Office Notice of Decision dated 13 Dec 2018, which states that “the country guidance caselaw demonstrates that even high-profile MDC members face no risk of persecution in Bulawayo. It is considered therefore that you could settle in Bulawayo and your claimed interaction with Mr Ncube six years ago would not place you at risk of persecution”‘. The Court of Appeal enquired of the Secretary of State whether there was any decision by the Secretary of State in MS’s case dated 13 December 2018, and whether MS had ever claimed to have had an interaction with Mr Ncube. It was noted that the answer to both questions was ‘No’. Those representing the Secretary of State offered the explanation that this paragraph had been cut and pasted from a report in a different case.
- Paragraph 74 of the Report cited two sources (the dates of which were not obvious in the footnotes) for a claim that:‘The CIO meet flights arriving in Harare when British Immigration officers’ [sic] or their representatives shand [sic] over failed asylum seekers to their Zimbabwean counterparts. Over the past 15 years there have been reports of failed asylum seekers being victimised, including being beaten upon their arrival at Harare Airport. It is my opinion that the country situation has not changed since the reports dating back to 2002 and the CIO have continued to detain asylum deportees at Harare Airport and interrogate them’.
- The Court observed that the reasoning in paragraph 74 seemed to be the basis of the expert’s view, expressed in Report, that ‘the current country conditions indicate that it is plausible that on his return to Zimbabwe [MS] may be identified as a person with an imputed political opinion in line with that of his mother.’
Relevance of country guidance case of CM(Zimbabwe) and the Upper Tribunal’s response to the submission that it be departed from
The Court of Appeal noted that the Upper Tribunal took the decision in CM (EM country guidance: disclosure) Zimbabwe CG  UKUT 59 (IAC) (‘CM‘) as its starting point.
In CM(Zimbabwe) the Upper Tribunal confirmed earlier country guidance that there had been ‘durable’ changes since the previous country guidance, RN (Returnees) Zimbabwe CG  UKAIT 00083. The Upper Tribunal in MS ‘s appeal was noted to have cited the guidance in CM extensively.
The following was considered by the Court:
- In sum, the Upper Tribunal decided in CM(Zimbabwe)that there was significantly less political violence than in 2008. The mere fact that a person was returning from the United Kingdom as a failed asylum seeker, would not, if he had no significant MDC profile, expose him to a risk of having to prove his loyalty to ZANU PF. It would be otherwise if a person with no connections with ZANU PF returned to a rural area (other than Matabeleland) after a long absence in the United Kingdom. The situation was not uniform in rural areas. A person returning to Matabeleland was, in general, unlikely to face difficulty even if he supported the MDC. A person returning to a low or medium density area in Harare was unlikely to face significant difficulties. If he returned to a high density area, in general, a person without ZANU PF connections would not face difficulties, such as a loyalty test, unless he had a significant MDC profile. A person returning to Bulawayo would face no difficulty, even if he had a significant MDC profile.
- The Upper Tribunal in MS’s appeal described, by reference to paragraphs 11 and 12 of the Upper Tribunal’s Guidance Note 2011 No 2, the circumstances in which it could depart from country guidance.
- The Upper Tribunal recorded MS’s submission that the background evidence and the expert Report were ‘very strong grounds supported by cogent evidence’ for departing from CM(Zimbabwe).
- The Upper Tribunal in MS’s appeal accepted that the Expert had expertise in ‘Zimbabwean social and political matters’. The Upper Tribunal was noted to have given ‘due weight’ to her opinions. Her view was that the current situation was comparable to that considered in RN (Returnees). Those at risk were not simply those who are seen to support the MDC, but also those who cannot show positive support for ZANU PF, or alignment with the regime.
- In considering MS’s appeal, the Upper Tribunal however rejected the claim that the current political climate was comparable with the situation [in RN (Returnees)], and that anyone who cannot demonstrate positive support for ZANU PF or alignment with the regime is at risk in Zimbabwe.
- Although the Upper Tribunal accepted that there was evidence of a ‘spike in violence’ around the time of the 2018 elections, and of a crackdown on opposition leaders, there was, however, no evidence that the decline in violence reported in CM(Zimbabwe) had reversed in the previous six years. Spikes in violence at election times were nothing new in Zimbabwe, and did ‘not necessarily affect the overall downward trend’. They were not inconsistent with a finding of ‘significant and durable change in Zimbabwe’.
- The Upper Tribunal described some of the submitted material and concluded that ‘The evidence is not necessarily indicative of ZANU PF politically motivated human rights violations against simple supporters of the opposition or MDC’.
- The Upper Tribunal stated that 16 years after he had left Zimbabwe, no-one would have any particular memory of or interest in MS by reason of his relationship with his mother. He had returned to Zimbabwe in 2012, and he and his sisters, in 2015. There was no evidence that they had been targeted in any way because of an imputed political reason, or because of their relationship with their mother.
Court of Appeal’s reasoning and conclusions
In dismissing MS’s appeal, the Court of Appeal concluded that:
- A Tribunal of fact is not bound to accept expert evidence if it disagrees with that evidence. That is so even if the expert witness is not cross-examined. The tribunal of fact is entitled, and obliged, to examine the analysis and reasoning in the expert’s report. It is obliged to reach its own conclusions on any questions of fact, or mixed questions of fact and law, which it must decide in order to determine a case. It may accept guidance from an expert on those questions, but is not obliged to accept it.
- The Upper Tribunal was not obliged to accept the conclusions in paragraph G of the Brief Summary, just because they were the conclusions of an experienced expert. The Upper Tribunal was entitled, and obliged, to ask itself whether those conclusions were rational conclusions, and whether, and if so, to what extent, they were supported by the material cited in the Report. The more inscrutable an expert’s conclusion is, the less likely it is that a tribunal of fact will be obliged to accept it.
- The Upper Tribunal was entitled to decide that old reports which pre-dated CM(Zimbabwe)did not amount to cogent evidence enabling it to depart from CM. The Upper Tribunal was plainly entitled to reject paragraph G, to the extent that it suggested that MS would be identified at Harare Airport as a person with an MDC profile.
- The Upper Tribunal was entitled, and obliged, to ask itself what material in the Report supported a general proposition that a person generally who cannot show that he is loyal to ZANU PF, or a person who, in particular, needs food aid, and who cannot show that he is loyal to ZANU PF, is at risk of ill treatment in Zimbabwe. On analysis, paragraph 91 of the Report was the only material which supported that proposition. The Upper Tribunal was entitled to conclude that that material did not support the general proposition that a person who cannot show his loyalty to ZANU PF is at risk of ill treatment in Zimbabwe
- There was no suggestion in the Report that MS would be entitled to the protection of the Convention if the only risk he would be exposed to in Zimbabwe would be a risk of random state violence which was not connected with, or caused by, his political profile (either, an MDC profile, or an inability to show, when required, his loyalty to ZANU PF). Ill treatment which is meted out randomly is not connected with, or caused by, a particular political profile, or by the absence of political profile. It is simply not related to the political profile of its victims in any way.
- The Upper Tribunal recognised that there were examples of random attacks, and was entitled and right to say that a common thread to many of the incidents referred to by the expert is that the attacks were upon supporters of the political opposition, leaders, and those perceived as critics of the government.
- Paragraphs 56 and 57 of the Report were the foundation for MS’s argument that the Upper Tribunal was obliged to depart from CM(Zimbabwe). This material did not meet the relevant test. It was not cogent, because it was wholly irrelevant to the question whether or not MS continued to need the protection of the Convention.
The Court of Appeal dismissed MS’s appeal.
Still seeking to argue a departure from CM(Zimbabwe)?
Where the decision in MS(Zimbabwe) is considered substantially reflective of the particular evidence that was before the Upper Tribunal and Court of Appeal, MS(Zimbabwe) does not signal the end of the argument that CM(Zimbabwe) should be departed from (and also that new country guidance caselaw should be promulgated).
What then should properly researched and sourced background evidence address?
Having regard to the Court of Appeal’s judgment in MS(Zimbabwe), the answer is clear with reference to the basis upon which the Upper Tribunal dismissed MS’s appeal and from the submissions put forward on behalf of the Secretary of State.
There is a need therefore:
- to show evidence of attacks on people who are not just political activists, journalists, or active supporters of the opposition.
- To show much much more than just two incidents (see paragraphs 56 and 57 of the Report above) on seeking to establish cogent evidence to justify a departure from the country guidance
- in relation to evidencing random violence against civilians by the government, where possible by way of an expert report, to analyse trends in violence since CM(Zimbabwe). Show evidence (if possible) that violence has increased since CM(Zimbabwe) to the levels which existed in 2008. Show the incidents are supported by checkable sources.
What MS(Zimbabwe) leaves open to argue
Had MS been able to show a potential risk arising from the profile his mother had had, some 20 years previously and/or MS’s inability to show that he was loyal to ZANU PF, his protection claim might have had some chance of success.
The Court of Appeal observed that those representing MS accepted that there were three relevant groups of people at risk in Zimbabwe:
(a) those who had an MDC profile (a group which did not include MS),
(b) those who could be attacked randomly (and whose political profile was irrelevant) and
(c) those who could not show that they were loyal to ZANU PF (and there was only one example of ill treatment on that basis in MS’s appeal).
For those not in MS’s position and for example able to fall into categories (a) or (c) and with the Upper Tribunal in MS having accepted that Zimbabwe “remains a society where brutality and human rights abuses continue to take place”, rather than seek to argue that levels of violence have increased since RN(Zimbabwe) was published in 2008 etc, an option argument might be, as per a recent successful claim, that following the publication of CM(Zimbabwe) itself:
- the Secretary of State’s background evidence makes it clear that anti-regime activity continues to be met by human rights abuses and repression in Zimbabwe.
- the background evidence (and the expert report where prepared) make it abundantly clear that a person with the claimant’s profile will be at real risk of ill-treatment from the authorities for his anti-regime activity. The option of internal relocation does not apply as the claimant will be at risk on arrival at the airport in Zimbabwe.
In submissions, on behalf of the Secretary of State, it was stated in relation to the Report that, “overall, there was nothing in paragraphs 56 or 57 which showed that test for departing from CM was met. That material, far from satisfying the test, was ‘very thin indeed’”.
It is worth considering drawing MS(Zimbabwe) to the attention of any country expert instructed to address issues of risk on return related to Zimbabwean claimants.
Proof -reading and double-checking the contents of a prepared expert report before submission to the Tribunal is a must. It is not unusual to find one or two brief erroneous references in some expert reports which may be highly indicative of copying and pasting from elsewhere, however experts will quickly amend a report and remove inapplicable sentences or paragraphs where their attention is drawn to it.
It is important not to rely substantially or wholly upon the researched background evidence referred to within an expert report to support arguments on matters of risk on return related to persecution of opposition or suspected opposition supporters. In reference to a country such as Zimbabwe, there is a multitude of reliable background evidence that can be sourced online to support an asylum application or appeal. A mere two hours dedicated to research of relevant and reliable background evidence is not sufficient. Where a legal representative does not have regularly updated extracts of background evidence including sources links accrued over time, then, so as to “catch-up”, 4hours or more hours dedicated to delving into research on risk matters will be required.