Does the new country Information Note make it that much more difficult for Zimbabwean asylum claimants to succeed in their protection claims?

The Home Office has published a new Note, Country Policy and Information Note Zimbabwe: Opposition to government Version 5.0 September 2021, www.assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1018765/ZWE_CPIN_Opposition_to_the_government.pdf

In summary, the following can be gathered from the 59page document:

  • Human rights violations in Zimbabwe are carried out by state agents (police and army) and state proxies (ZANU-PF)
  • As regards the MDC-A and MDC-T factions, views from political analysts are that the ruling party created the surrogate opposition MDC-T to disturb the MDC-Alliance
  • Those at risk of persecution include MDC supporters, teachers, health professionals, journalists, students, lawyers and civil society activists
  • There has been a decline in the human rights situation under Emmerson Mnangagwa’s presidency
  • In relation to levels of human rights violations, there are no “very strong grounds supported by cogent evidence’ to depart from existing country guidance of CM(Zimbabwe)
  • the majority of protests were peaceful and no cases recorded excessive use of force against protesters in recent years
  • In relation to civil society activists and NGO’s, security authorities are suspicious of the motivations of CSOs and see their activities as a threat to national stability
  • As regards politicisation of food and other aid, this is not in and of itself serious enough by its nature and repetition to establish a claim to asylum
  • In relation to internal relocation, the guidance in CM (Zimbabwe) continues to govern internal relocation considerations

WHO CARRIES OUT HUMAN RIGHTS VIOLATIONS IN ZIMBABWE? – carried out by state agents (police and army) and state proxies (ZANU-PF)

  • The majority of human rights violations are carried out by state agents (police and army) and state proxies (ZANU-PF), although a significant minority of violations involve unknown perpetrators. During 2020 and the first half of 2021, the police were the main perpetrators of recorded violations. The median proportion of violations committed by the police has increased from 29% in 2019 to 51% at the mid-point of 2021. Over the same period, the proportion of violations attributed to ZANU-PF has fallen from 35% to 19%. It is likely that COVID-19 lockdown restrictions, combined with the role of the police in enforcing the restrictions, has contributed to this trend – Para 2.4.4
  • Where the person has a well-founded fear of persecution from the state or proxies of the state, they will not, in general, be able to avail themselves of the protection of the authorities- Para 2.5.1

MDC-A AND MDC-T FACTIONS: The ruling party created the surrogate opposition MDC-T to disturb the MDC-Alliance

The main opposition political party, the Movement for Democratic Change (MDC) has undergone a series of internal splits which began before the death of its leader Morgan Tsvangirai (in February 2018) and which continued after his death. The 2 current factions, the MDC-A and MDC-T, have engaged in infighting – Para 2.4.2

On 7 January 2021, The Africa Report, describing itself as ‘one of the leading news organisations on the continent’48 (published by Jeune Afrique Media Group) set out the consequences of the factional dispute for the MDC:

While the year 2020 will undoubtedly play an integral part in history – bringing the world to a halt as a result of the pandemic – Zimbabwe’s politics will go down as an historic year for the Movement for Democratic Change, once a united front, now split into two: MDC-Alliance led by Nelson Chamisa, and MDC-T, led initially by Thokozani Khupe and now by Douglas Mwonzora………….

‘The opposition is clearly facing a serious challenge from an authoritarian regime, the ruling party Zanu-PF, that hopes to crush and fragment the opposition, inevitably destroying multi-party democracy in Zimbabwe, says UK-based Zimbabwean political analyst Alex Magaisa.

‘“The ruling party created the surrogate opposition MDC-T to essentially disturb the MDC-Alliance. It is not a fight between factions in the opposition, but a fight by the ruling party against the opposition to dismantle it and move towards a one-party regime,” Magaisa tells The Africa Report…

Thabitha Khumalo, MDC-Alliance national chairperson, describes events that affected the opposition party in 2020 as the death of democracy in Zimbabwe. Zanu-PF found a willing partner in the MDC-T to destroy the bigger objective of the opposition in favour of individuals who were open to benefitting from such a system.

‘Khumalo says: “The MDC is working with the ruling party to stifle democracy in the country. Zanu-PF is motivated to dismantle the opposition, for them they would rather have a one- party state and they have found a willing partner through the MDC-T.”’-  Para 11.1.4

WHO IS AT RISK OF PERSECUTION? -MDC supporters, teachers, health professionals, journalists, students, lawyers and civil society activists

  • The ruling party is intolerant of organisations or persons who speak out against the government. Members of opposition political parties, such as the MDC, and other opposition groups, including civil society activists, journalists and health professionals, have been arrested or assaulted- Para 2.4.3
  • Over the 2-year period between August 2019 and July 2021, the median percentage of victims of human rights violations recorded as having a known MDC-affiliation was 3.1%. Given that approximately 10% of Zimbabweans are members of the MDC and the MDC presidential candidate received 44% of votes cast in the 2018 election, the figure of 3.1% is likely to be an underestimate. The low proportion of recorded MDC-affiliated victims may be explained by a reluctance of victims to be identified as linked to the MDC-Para 2.4.16
  • In 2020, ZPP recorded 2,825 human rights violations. Given the large numbers of MDC supporters and members, compared against the relatively low number of recorded violations, the risk of being a victim of a violation based solely upon being a supporter or member of the MDC is very low- Para 2.4.18
  • However, violations against persons who are affiliated with the MDC do take place. Many of the reported arrests, abductions and assaults involve MDC leaders and activists with a significant profile-Para 2.4.19
  • In the case of teachers, in CM (Zimbabwe) the UT held that ‘Those who are or have been teachers require to have their cases determined on the basis that this fact places them in an enhanced or heightened risk category, the significance of which will need to be assessed on an individual basis.’ (paragraph 3(10))- 2.4.21
  • As well as teachers, other groups which have been critical of the government include: health professionals, journalists, students, lawyers and civil society activists. Many of the recorded incidents are linked to involvement in (or, in the case of journalists, coverage of) demonstrations protesting against pay, working conditions and living costs. Recorded violations include arrest, assault, detention and abduction – Para 2.4.22
  • Being a teacher, lawyer, journalist, health professional, student or civil society activist does not, in itself, establish a risk of persecution or serious harm. Each case must be considered on its individual merits. Factors to take into account include the person’s profile, activities, area of origin and proposed area of return. The onus is on the person to demonstrate that they face a risk of persecution- Para 2.4.23
  • The USSD human rights report covering events in 2020 noted: ‘There were reports of individuals arrested for political reasons, including opposition party officials, their supporters, NGO workers, journalists, civil society activists, and labor leaders. Authorities sometimes detained such individuals for one or two days and released them without charge. Political prisoners and detainees did not receive the same standard of treatment as other prisoners or detainees, and prison authorities arbitrarily denied visitor access to political prisoners. There were reports police beat and physically abused political and civil society activists while they were in detention. ‘Unlike normal criminal proceedings, which move from investigation to trial within months, prosecuting agents regularly took abnormally long to submit for trial cases involving members of the political opposition or civil society critics of the government. Hearings were sometimes scheduled when presiding judges were on vacation. Prosecutors in political cases were often “unprepared to proceed” and received numerous continuances. In many cases where authorities granted bail to government opponents, they did not conclude investigations and set a trial date but instead chose to “proceed by way of summons.” This left the threat of impending prosecution remaining, with the accused person eventually being called to court, only to be informed of further delays.’- Para 15.1.1
  • In December 2019, DFAT reported: ‘On the night of 14 September 2019, Dr Peter Magombeyi, the head of the Zimbabwe Hospital Doctors Association disappeared from his home. Dr Magombeyi subsequently reappeared on 20 September, after the government issued a statement of concern for his apparent abduction. Dr Magombeyi required ongoing hospitalisation after his return, with friends and colleagues alleging he had been poisoned during his abduction. Dr Magombeyi’s involvement in the ongoing industrial action by doctors and nurses through 2018-19… led to widespread allegations that his abduction was state-orchestrated. ‘The full facts of the recent abductions remain unclear, including the identity of the perpetrators. While the government’s statement of concern in relation to Dr Magombeyi is a positive development, the government has yet to fully demonstrate its commitment to apprehending and prosecuting those responsible for the abductions, or to preventing any further incidents.’ – Para 16.4.1
  • In February 2020, Newsday reported: ‘Six parents and teachers in Mutoko were arrested on Thursday after staging a protest against the deterioration of standards in the education sector, before handing a copy of their grievances to government. ‘The protest, which occurred at Mutoko Centre, shocked many as it was one of the few to be held within a Zanu PF stronghold. ‘Some of those arrested were members of the Amalgamated Rural Teachers Union of Zimbabwe.’- Para 16.4.2
  • A September 2020 ZHRNGOF report which focused on COVID-related human rights violations stated: ‘Not less than 35 nurses were arrested by State security agents for taking part in a strike over poor salaries and for demanding COVID-19 allowances during the lockdown. The disgruntled nurses were, however, released without charge following the intervention of the hospital leadership. The striking nurses were rounded up at Mutare General Hospital on June 19 [2020] and taken to Mutare Central Police Station.’- Para 16.4.3

DECLINE IN HUMAN RIGHTS SITUATION -decline in human rights situation under Emmerson Mnangagwa’s presidency

  • In December 2020, the International Crisis Group produced a briefing based on a range of sources: ‘Three years after a coup ended Robert Mugabe’s rule, the situation in Zimbabwe has gone from bad to worse, as political tensions mount, the economy falls apart and the population faces hunger and COVID-19. Having signalled a desire to stabilise the economy and ease repression, President Emmerson Mnangagwa has disappointed. The state is arresting opponents who protest government corruption and incompetence. Meanwhile government-allied businessmen are tightening their grip on what is left of the economy, while citizens cope with austerity measures and soaring inflation. Violence and lawlessness are on the rise. Fearing major unrest, or even another coup sparked by ruling-party divisions, Zimbabwe’s most important neighbour, South Africa, is ditching its tolerant posture toward Harare.’ – Para 3.1.2
  • In a January 2021 publication covering the events of 2020, Human Rights Watch (HRW) reported ‘Zimbabwe’s human rights situation continued to decline in 2020 under Emmerson Mnangagwa’s presidency. Unidentified assailants, suspected to be state security agents, abducted and tortured more than 70 critics of the government during 2020. Security forces also continued to commit arbitrary arrests, violent assaults, abductions, torture and other abuses against opposition politicians, dissidents and activists.’ – Para 3.1.3
  • In a March 2021 report covering the events of 2020, Freedom House stated: ‘The Zimbabwe African National Union–Patriotic Front (ZANU-PF) has dominated Zimbabwean politics since independence in 1980, in part by carrying out severe and often violent crackdowns on the political opposition, critical media, and other sources of dissent. President Emmerson Mnangagwa took power in 2017 after the military intervened to remove longtime president Robert Mugabe amid factional divisions within the ruling party. However, the new administration has largely retained the legal, administrative, and security architecture it inherited from the Mugabe regime, and it has stepped up repression to consolidate its authority- Para 3.1.5
  • In July 2021, the UK Government’s Foreign, Commonwealth & Development Office (FCDO) published its annual report (covering the events of 2020) and stated: ‘The human rights situation in Zimbabwe did not improve in 2020. The human rights monitoring group, Zimbabwe Peace Project, recorded 2,825 human rights violations in 2020, similar to the total in 2019. The majority of violations were due to heavy-handed policing of COVID-19 regulations by the Zimbabwe Republic Police, as well as targeted abductions, arbitrary arrests, and detentions linked to planned protests in July.’- Para 3.1.6

LEVELS OF HUMAN RIGHTS VIOLATIONS-  no “very strong grounds supported by cogent evidence’ to depart from existing country guidance of CM(Zimbabwe)

  • In order to understand the level and nature of human rights violations in Zimbabwe, and also to identify trends over time, this CPIN has drawn upon data collected by two organisations: the Zimbabwe Peace Project (ZPP) and the Armed Conflict Location & Event Data Project (ACLED)- Para 5.1.1
  • ZPP and ACLED have been chosen for several reasons. Firstly, their information is publicly available and easily accessible. Secondly, their approach to cataloguing data is different, thereby widening the type of analysis which can be performed. Most importantly, both sources provide a systematic log of violations and events over a continuous time period. (ZPP produces consecutive monthly reports, while ACLED logs events daily). This means that the information collected by the two sources is more quantifiable than other pieces of evidence, such as reports and articles, which are often piecemeal in coverage. The ZPP and ACLED data can therefore be used alongside the qualitative evidence to provide a more complete picture of the current situation and also provide context to how the situation has changed over time- Para 5.1.2
  • The level of human rights violations across Zimbabwe has remained relatively constant throughout 2019, 2020 and 2021. The Zimbabwe Peace Project (ZPP), a local NGO, recorded 2,790 violations in 2019, 2,825 violations in 2020 and 1,264 violations during the first 6 months of 2021, which is less than half of the 2019 and 2020 totals. Recorded violations range from harassment/intimidation (the large majority) to assault, unlawful detention and unlawful killing – Para 2.4.5
  • In the case of CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 00059 (IAC), heard in October 2012 and promulgated in January 2013, (which modified the Country Guidance in EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC), heard in October 2010/January 2011 and promulgated in March 2011), the Upper Tribunal found that there was significantly less politically-motivated violence in Zimbabwe than had been described in the earlier country guidance case of RN (Returnees) Zimbabwe CG [2008] UKAIT 00083, heard by the Asylum Immigration Tribunal in September/October 2008 and promulgated in November 2008, which followed the violently contested 2008 national elections – Para 2.4.10
  • ZPP data indicates that the recorded level of human rights violations in 2020 and 2021 is significantly lower than the level recorded in 2008 (when RN was heard), lower than 2010 (when EM was heard) and lower than 2012 (when CM was heard). The ZPP recorded a total of 2,825 human rights violations in the most recent full year for which data is available (2020). This is just over a quarter of the 10,703 incidents in 2010 and just over half of the figure of 5,096 in 2012. The 2020 figures are also much lower than the 23,755 incidents recorded in 2008. During the first half of 2021, the ZPP recorded 1,264 violations, which is less than half of the 2020 total of 2,825- Para 2.4.11
  • The overall trend of human rights violations documented by ZPP is broadly consistent with information from ACLED. The number of events recorded by ACLED during the same 4 years noted above (2008, 2010, 2012 and 2020) are 775, 194, 202 and 162, respectively. Whilst neither ZPP nor ACLED are likely to record every human rights violation or every event in any particular year, the data provides an indication of the scale and nature of violence annually and is comparable against itself year-on-year, so provides an indication of trends over time. The general trend is of a steep decline in incidents after 2008, followed by a more gradual decline or plateauing of incidents between 2009 and 2020. While spikes in violence do take place – such as during the fuel protests in 2019 – this has not affected the overall trend – Para 2.4.12
  • The ZPP data indicates that for each year, 2014 to 2020, inclusive, the total number of human rights violations recorded was lower than that for 2011 (when EM was promulgated) and also lower than 2013 (when CM (Zimbabwe) was promulgated). The ACLED data fluctuates between 2011 and 2020 but the overall trend is of little change, with the number of events recorded in 2020 falling in between the figures for 2011 and 2013- Para 9.1.3
  • Given the absence of ‘very strong grounds supported by cogent evidence’ to depart from existing country guidance, (as per paragraph 47 of SG (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 940 (13 July 2012)) the findings of CM (Zimbabwe) continue to apply:……- Para 2.4.20

PROTESTS- the majority of protests were peaceful and no cases recorded excessive use of force against protesters in recent years

While some protests were organised by the MDC, or had the party’s support, protests were also organised by other groups or organisations – Para 12.1.1

Mid-year data for 2021 has not been included in the graph. For the 6-month period between 1 January 2021 and 30 June 2021, a total of 16 protests were recorded by ACLED. This is less than a third of the total number of protests recorded in 2019 (52) and 2020 (52). Of the 16 protests, 13 were peaceful, 3 involved an intervention and there were no instances of excessive force being used against protesters- Para 9.3.4

A CPIT review of the graph, together with the mid-year 2021 figures, indicates several points:

  • There has been a trend towards an increasing number of protests over the period 2010 to 2020. The total number of protests recorded in 2010 and 2020 were 19 and 52, respectively, with the number of protests peaking at 97 in 2015.
  • The data also shows that for each year in the 11-year period 2010 to 2020, the majority of protests were peaceful and – with the exception of a spike in 2011 – the percentage of protests in which the state intervened remained relatively constant at about 30%.
  • In the 2 most recent full years, 2019 and 2020, and also the mid-year period between 1 January 2021 and 30 June 2021, there were no cases recorded by ACLED of excessive use of force against protesters – Para 9.3.5

In July 2021, the FCDO’s annual report (covering the events of 2020) stated: ‘In July [2020], authorities took pre-emptive and heavy-handed action to prevent large-scale protests. These were fuelled by growing frustration following corruption scandals, imploding healthcare provision, and the collapsing economy. The authorities detained opposition politicians and journalists for encouraging participation in such protests, and cases against journalist Hopewell Chin’ono, and opposition politicians Job Sikhala and Jacob Ngarivhume, were continuing at the end of the year. The Government continued to use the legal system to silence critics, suppress opposition and discourage protest.’- Para 12.1.9

On 24 July 2020 the UN Office of the High Commissioner for Human Rights (OHCHR) issued a statement: ‘We are concerned at allegations in Zimbabwe, which suggest that the authorities may be using the COVID-19 pandemic as a pretext to clamp down on freedom of expression and freedom of peaceful assembly and association… While recognizing the Government’s efforts to contain the pandemic, it is important to remind the authorities that any lockdown measures and restrictions should be necessary, proportionate and time[1]limited, and enforced humanely without resorting to unnecessary or excessive force.’ Para 13.1.2

In the August 2021 edition of its monthly monitoring report, ZPP noted: ‘In Muzarabani [Mashonaland Central], police allegedly continued to deny the MDC Alliance clearance to hold meetings due to lockdown regulations but Zanu PF was holding its meetings regularly without disturbances.’ – Para 13.1.6

CIVIL SOCIETY ACTIVISTS & NGO’S-  Security authorities are suspicious of the motivations of CSOs and see their activities as a threat to national stability

  • In December 2019, DFAT reported: ‘Unconfirmed statements by government officials put the number of [civil society organisations] CSOs operating in Zimbabwe at over 20,000. CSOs conduct activities on a wide range of social, cultural, political, and economic issues. A number of domestic and international NGOs investigate and publish their findings on human rights cases… Security authorities reportedly remain suspicious of the motivations of CSOs and see their activities as a threat to national stability, particularly in the wake of the January 2019 fuel protests. Following these protests, authorities charged an unprecedented 22 people (including prominent CSO leaders and activists) with subverting a constitutional government, which carries a penalty of up to 20 years’ imprisonment. At least 10 individuals face treason charges, for which the death penalty is applicable… After the aborted August 2019 protests in Harare, authorities reportedly arrested 128 activists in Harare and an undisclosed number nationwide.’ – Para 16.3.1 I
  • In a March 2021 report covering the events of 2020, Freedom House stated: ‘NGOs face restrictions under laws including the CLCRA and the Private Voluntary Organisations Act, despite rights laid out for them in the constitution. NGO leaders and members faced detentions, abductions, and continued scrutiny in 2020.’- Para 16.3.2
  • Online news site Bloomberg reported on 4 August 2020: ‘Protests against economic turmoil, arrests and human-rights abuses in Zimbabwe have moved online with a hashtag that’s plays on the #BlackLivesMatter movement. The #ZimbabweanLivesMatter tag started after security forces blocked a street demonstration last week… President Emmerson Mnangagwa labeled [sic] the planned street protests an “insurrection” meant to topple his administration. In a televised speech on Tuesday, he said “dark forces” within and outside the country were undermining economic recovery. “The bad apples that have attempted to divide our people and to weaken our systems will be flushed out,” he said.’ – Para 16.3.3
  • In an address to ZANU-PF members on 14 July 2021, reported by the government-owned Herald news site, President Mnangagwa said: ‘As the election season unfolds, we are observing a notable number of NGOs diverting from their operational mandates to delve into political matters, that amounts to interference in the internal affairs of our sovereign country. ‘My Government will not brook any such disregard for our laws and will proceed to de-register all organisations found in the wrong.’- Para 16.3.8

POLITICISATION OF FOOD AND OTHER AID- not in and of itself serious enough by its nature and repetition to establish a claim to asylum

  • Incidents of partisan distribution of aid continue to take place and ZPP recorded a number of cases of politically-motivated restrictions on access to food and other aid. However, the number of recorded incidents is low, with a total of 270 incidents across Zimbabwe in 2019 and 258 in 2020, largely in rural areas. Incidents of food and aid violations in Harare and Bulawayo are rare. In 2019, 95% of food and aid violations took place outside of Harare and Bulawayo. In 2020 this figure was 96%. There are also processes in place to lodge objections against the unfair distribution of aid-Para 2.4.24
  • Such treatment would not in and of itself be serious enough by its nature and repetition to establish a claim to asylum – Para 2.4.25
  • A March 2021 report by ZHRNGOF and ZPP stated: ‘The ruling party ZANU-PF exerts undue influence over local government structures, such as Provincial Administrators, District Administrators and the Department of Social Welfare, which are involved in the distribution of food aid at local levels. This opens food aid distribution processes to political interference from ruling party functionaries such as local party leaders and activists, as well as war veterans and youth militias aligned to the party. The partisan control and distribution of aid enables ZANU-PF to bolster its electoral support whilst also punishing villagers who voted for opposition councillors. This significantly undermines the right to food for people who are perceived to be members or supporters of the opposition.’ – Para 14.1.6
  • And: ‘There are mechanisms in place to handle complaints from people who have grievances about the distribution of food aid, including handling complaints about the partisan distribution of aid. There are also monitoring mechanisms put in place to check for partisan distribution of aid, but this has somehow not worked efficiently as shown in the discussions above. On the government side, there are monitoring teams from the national, provincial and district levels who are supposed to monitor food aid distribution and to investigate complaints raised at the respective ward distribution centres. District social welfare departments also handle and investigate complaints, but this has not been very successful given the overbearing influence of ZANUPF structures over local government structures, as discussed above. There are instances where people who have been discriminated against receiving food aid on partisan lines have raised complaints to local social welfare officers and they were ultimately given their food aid packages. But, in most instances, affected villagers choose not to complain for fear of being victimized by either village heads or ZANU-PF activities in their communities. ‘On the other hand, NGOs have more effective monitoring systems and complaints handling (feedback) mechanisms that they use before, during and after food distribution exercises. Most NGOs have established help desks in food aid distribution areas which are manned by their field officers. They also set up suggestion boxes and toll-free numbers where aggrieved villagers can lodge complaints anonymously. The NGO field teams collect the complaints and they go on to investigate them. If the teams find out that there are villagers who have not been included on beneficiary lists, they go on to correct the anomaly ensure that deserving villagers receive their food aid packages… ‘The NGO monitoring and complaints mechanisms are effective in terms of providing remedies and redress to people discriminated against during food aid distribution. But they can only work if the affected people are confident enough to use the mechanisms and they are not afraid of being victimized after they raise complaints.’- Para 14.1.7

INTERNAL RELOCATION- guidance in CM (Zimbabwe) continues to govern internal relocation considerations

In CM (Zimbabwe), restating EM, the UT held:

‘The issue of what is a person’s home for the purposes of internal relocation is to be decided as a matter of fact and is not necessarily to be determined by reference to the place a person from Zimbabwe regards as his or her rural homeland. As a general matter, it is unlikely that a person with a well[1]founded fear of persecution in a major urban centre such as Harare will have a viable internal relocation alternative to a rural area in the Eastern provinces. Relocation to Matabeleland (including Bulawayo) may be negated by discrimination, where the returnee is Shona.

‘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.’ (paras 3(7) and (8))- Para  2.6.2

In summary:

  • In general, it is unlikely that a person with a well-founded fear of persecution in a major urban centre, such as Harare or Bulawayo, will reasonably be able to relocate to a rural area in the eastern provinces
  • In general, internal relocation from a rural area to Harare or Bulawayo is reasonable. In the case of the Shona ethnic group, relocation to Matabeleland (including Bulawayo) may not be reasonable, as they may face discrimination.
  • In all cases, the socio-economic circumstances of relocation need to be considered to decide whether relocation would be unreasonable or unduly harsh -Para 2.6.3

Conclusion

As always, each asylum claim will be decided having regard to individual circumstances.

Despite a current reported reduction in the levels of human rights violations in Zimbabwe, in light of the repressive nature of the regime, its intolerance of criticism or expression of other political affiliation, a claim for protection may succeed where a claimant can establish on the basis of some or all of the following that they:

  • have a well-founded fear of persecution for a Convention reason
  • are a critic or are perceived as such by the regime
  • are an active member of the opposition ( MDC-A faction) or perceived as such
  • are involved in protest against the regime
  • belong to a profession that falls within a risk category as above
  • will be of adverse interest to state agents
  • will be identified on arrival at the airport
  • will be interrogated or detained and subject to ill treatment at the airport and are unable to internally relocate

 

Upper Tribunal decides modified Paposhvili test applies to mental illness/risk of suicide cases

In MY (Suicide risk after Paposhvili) Occupied Palestinian Authority [2021] UKUT 232 (IAC) (23 August 2021), the Upper Tribunal made it clear from the outset that the appellant’s appeal was allowed on Article 3 health grounds, which was the determinative issue in the appeal.

The Headnote in MY states:

Where an individual asserts that he would be at real risk of (i) a significant, meaning substantial, reduction in his life expectancy arising from a completed act of suicide and/or (ii) a serious, rapid and irreversible decline in his state of mental health resulting in intense suffering falling short of suicide, following return to the Receiving State and  meets the threshold for establishing Article 3 harm identified at [29] – [31] of the Supreme Court’s judgment in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17[2020] Imm AR 1167, when undertaking an assessment the six principles identified at [26] – [31] of J v Secretary of State for the Home Department [2005] EWCA Civ 629[2005] Imm AR 409 (as reformulated in Y (Sri Lanka) v SSHD [2009] EWCA Civ 362) apply.

MY concerned an Appellant who claimed to be a citizen of the Occupied Palestinian Authority (OPA)(although the Secretary of State’s position was that he was Moroccan).  On 10 July 2014, he was convicted of robbery and ABH and was sentenced to 22 months’ imprisonment. He therefore became the subject of deportation proceedings and sought to resit deportation raising several claims, including that his deportation would breach his rights under Article 3 ECHR on the grounds of his mental illness.

Physical health condition cases and mental health condition cases:

In contrast to:

which involved physical health condition cases, MY (Suicide risk after Paposhvili) Occupied Palestinian Authority [2021] UKUT 232 (IAC) (23 August 2021) concerned a mental health psychiatric condition case.

As a question of law, issues concerning the application of Y (Sri Lanka) v SSHD [2009] EWCA Civ 362 and J v SSHD [2005] EWCA Civ 629[2005] Imm AR 409 following Paposhvili  and AM (Zimbabwe) were relevant for consideration.

J v SSHD  and  Y (Sri Lanka)  relate to psychiatric health cases.

The issue in MY before the Upper Tribunal was whether after AM (Zimbabwe), the N test continued to apply in cases involving the expulsion of a criminal with a psychiatric condition or whether the Paposhvili test applied.

What was the very high threshold test in N?

In N v United Kingdom (App. No. 26565/05), [2008] Imm AR 657 the Court clarified  what was meant by “exceptional circumstances”:

“42. In summary, the Court observes that since D v the United Kingdom it has consistently applied the following principles. Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3but only in a very exceptional case, where the humanitarian grounds against the removal are compelling.  In the D case 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 with even a basic level of food, shelter or social support.

43.The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D v the United Kingdom and applied in its subsequent case-law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.”

Following N claimants were required to demonstrate circumstances so exceptionally appalling that they reached the high threshold set in D: where 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 with even a basic level of food, shelter or social support.

The ‘deathbed’ scenario has now been held to set too high a threshold to properly reflect the values that Article 3 is designed to protect.

What is the Paposhvili test?

The Grand Chamber in Paposhvili v Belgium (App No. 41738/10), [2017] Imm AR 876, recast the test to be applied in Article 3 health cases.  It expressed the view in paragraph 182 that the approach to health cases should be clarified.  The court then stated as follows:-

“183. The Court considers that the “other very exceptional cases” within the meaning of the judgment in N. v. the United Kingdom (§ 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.”

The Supreme Court decision in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17[2020] Imm AR 1167, sets out at paragraph 34:  ‘…..in the light of the decision in the Paposhvili case, it is from the decision of the House of Lords in the N case that we should depart today’.

The Supreme Court in AM(Zimbabwe) further clarified:

“31. It remains, however, to consider what the Grand Chamber did mean by its reference to a “significant” reduction in life expectancy in para 183 of its judgment in the Paposhvili case. Like the skin of a chameleon, the adjective takes a different colour so as to suit a different context. Here the general context is inhuman treatment; and the particular context is that the alternative to “a significant reduction in life expectancy” is “a serious, rapid and irreversible decline in … health resulting in intense suffering”. From these contexts the adjective takes its colour. The word “significant” often means something less than the word “substantial”. In context, however, it must in my view mean substantial. Indeed, were a reduction in life expectancy to be less than substantial, it would not attain the minimum level of severity which article 3 requires. Surely the Court of Appeal was correct to suggest, albeit in words too extreme, that a reduction in life expectancy to death in the near future is more likely to be significant than any other reduction. But even a reduction to death in the near future might be significant for one person but not for another. Take a person aged 74, with an expectancy of life normal for that age. Were that person’s expectancy be reduced to, say, two years, the reduction might well – in this context – not be significant. But compare that person with one aged 24 with an expectancy of life normal for that age. Were his or her expectancy to be reduced to two years, the reduction might well be significant.

32.The Grand Chamber’s pronouncements in the Paposhvili case about the procedural requirements of article 3, summarised in para 23 above, can on no view be regarded as mere clarification of what the court had previously said; and we may expect that, when it gives judgment in the Savran case, the Grand Chamber will shed light on the extent of the requirements. Yet observations on them may even now be made with reasonable confidence. The basic principle is that, if you allege a breach of your rights, it is for you to establish it. But “Convention proceedings do not in all cases lend themselves to a rigorous application of [that] principle …”: DH v Czech Republic (2008) 47 EHRR 3, para 179. It is clear that, in application to claims under article 3 to resist return by reference to ill-health, the Grand Chamber has indeed modified that principle. The threshold, set out in para 23(a) above, is for the applicant to adduce evidence “capable of demonstrating that there are substantial grounds for believing” that article 3 would be violated. It may make formidable intellectual demands on decision-makers who conclude that the evidence does not establish “substantial grounds” to have to proceed to consider whether nevertheless it is “capable of demonstrating” them. But, irrespective of the perhaps unnecessary complexity of the test, let no one imagine that it represents an undemanding threshold for an applicant to cross. For the requisite capacity of the evidence adduced by the applicant is to demonstrate “substantial” grounds for believing that it is a “very exceptional” case because of a “real” risk of subjection to “inhuman” treatment. All three parties accept that Sales LJ was correct, in para 16, to describe the threshold as an obligation on an applicant to raise a “prima facie case” of potential infringement of article 3. This means a case which, if not challenged or countered, would establish the infringement: see para 112 of a useful analysis in the Determination of the President of the Upper Tribunal and two of its senior judges in AXB v Secretary of State for the Home Department [2019] UKUT 397 (IAC). Indeed, as the tribunal proceeded to explain in para 123, the arrangements in the UK are such that the decisions whether the applicant has adduced evidence to the requisite standard and, if so, whether it has been successfully countered fall to be taken initially by the Secretary of State and, in the event of an appeal, again by the First-tier Tribunal”.

Insofar as the judgment in AXB v SSHD [2019] UKUT 397 relates to the procedural aspects arising from Paposhvili, what is stated at [112] (replicated at paragraph 3 of the headnote) was endorsed by the Supreme Court in AM(Zimbabwe) :-

“The burden is on the individual appellant to establish that, if he is removed, there is a real risk of a breach of Article 3 ECHR to the standard and threshold which apply.  If the appellant provides evidence which is capable of proving his case to the standard which applies, the Secretary of State will be precluded from removing the appellant unless she is able to provide evidence countering the appellant’s evidence or dispelling doubts arising from that evidence.  Depending on the particular circumstances of the case, such evidence might include general evidence, specific evidence from the Receiving State following enquiries made or assurances from the Receiving State concerning the treatment of the appellant following return.”

In respect of the obligations on the Secretary of State following Paposhvili, the Supreme Court  in AM(Zimbabwe) stated at [33] as follows:-

“In the event that the applicant presents evidence to the standard addressed above, the returning state can seek to challenge or counter it in the manner helpfully outlined in the judgment in the Paposhvili case at paras 187 to 191 and summarised at para 23(b) to (e) above. The premise behind the guidance, surely reasonable, is that, while it is for the applicant to adduce evidence about his or her medical condition, current treatment (including the likely suitability of any other treatment) and the effect on him or her of inability to access it, the returning state is better able to collect evidence about the availability and accessibility of suitable treatment in the receiving state. What will most surprise the first-time reader of the Grand Chamber’s judgment is the reference in para 187 to the suggested obligation on the returning state to dispel “any” doubts raised by the applicant’s evidence. But, when the reader reaches para 191 and notes the reference, in precisely the same context, to “serious doubts”, he will realise that “any” doubts in para 187 means any serious doubts. For proof, or in this case disproof, beyond all doubt is a concept rightly unknown to the Convention”.

The six-point guidance in J v SSHD – suicide cases:

The J guidance, as formulated at paragraphs 26 to 32 states:

“26.First, the test requires an assessment to be made of the severity of the treatment which it is said that the applicant would suffer if removed. This must attain a minimum level of severity. The court has said on a number of occasions that the assessment of its severity depends on all the circumstances of the case. But the ill-treatment must “necessarily be serious” such that it is “an affront to fundamental humanitarian principles to remove an individual to a country where he is at risk of serious ill-treatment”: see Ullah paras [38-39].

27.Secondly, a causal link must be shown to exist between the act or threatened act of removal or expulsion and the inhuman treatment relied on as violating the applicant’s article 3 rights. Thus in Soering at para [91], the court said:

“In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment.”(emphasis added).

See also para [108] of Vilvarajah where the court said that the examination of the article 3 issue “must focus on the foreseeable consequences of the removal of the applicants to Sri Lanka…”

28.Thirdly, in the context of a foreign case, the article 3 threshold is particularly high simply because it is a foreign case. And it is even higher where the alleged inhuman treatment is not the direct or indirect responsibility of the public authorities of the receiving state, but results from some naturally occurring illness, whether physical or mental. This is made clear in para [49] of D and para [40] of Bensaid.

29.Fourthly, an article 3 claim can in principle succeed in a suicide case (para [37] of Bensaid).

30.Fifthly, in deciding whether there is a real risk of a breach of article 3 in a suicide case, a question of importance is whether the applicant’s fear of ill-treatment in the receiving state upon which the risk of suicide is said to be based is objectively well-founded. If the fear is not well-founded, that will tend to weigh against there being a real risk that the removal will be in breach of article 3.

31.Sixthly, a further question of considerable relevance is whether the removing and/or the receiving state has effective mechanisms to reduce the risk of suicide. If there are effective mechanisms, that too will weigh heavily against an applicant’s claim that removal will violate his or her article 3 rights.

32.We were shown a number of cases which were declared inadmissible at Strasbourg: A.G v Sweden Appl No 27776/95; Kharsa v Sweden Appl No 28419/95; Nikovic v Sweden Appl No 28285/95; Ammari v Sweden Appl No 60959/00; Nasimi v Sweden Appl No 38865/02. The sixth factor which we have identified above was considered to be relevant in each of these cases. The fifth factor was considered to be an additional relevant factor in Kharsa, Ammari and Nasimi”.

The fifth point in J v SSHD was reformulated in  Y (Sri Lanka) where  the Court of Appeal stated: –

“15. … The corollary of the final sentence of §30 of J is that in the absence of an objective foundation for the fear some independent basis for it must be established if weight is to be given to it. Such an independent basis may lie in trauma inflicted in the past on the appellant in (or, as here, by) the receiving state: someone who has been tortured and raped by his or her captors may be terrified of returning to the place where it happened, especially if the same authorities are in charge, notwithstanding that the objective risk of recurrence has gone.

  1. One can accordingly add to the fifth principle in J that what may nevertheless be of equal importance is whether any genuine fear which the appellant may establish, albeit without an objective foundation, is such as to create a risk of suicide if there is an enforced return.”

Sir Duncan Ouseley in R (Carlos) v SSHD [2021] EWHC 986 (Admin) stated at [159]:

Article 3 and suicide risk: this is another facet to which Paposhvili and AM (Zimbabwe) apply.  It is for EC to establish the real risk of a completed act of suicide.  Of course, the risk must stem, not from a voluntary act, but from impulses which he is not able to control because of his mental state”.

Secretary of State attempts to persuade the Upper Tribunal in MY to apply the N test to psychiatric/mental health cases:

Whilst the appellant relied on AM (Afghanistan) v SSHD [2017] EWCA Civ 1123[2017] Imm AR 6, in relation to the Secretary of State’s submissions the following was noted:

  • that Paposhviliand AM(Zimbabwe) do not apply to mental health cases and that the N test applied.
  • while YJand Bensaid v United Kingdom 2001 ECHR 44599/98 relied on the application of the N threshold as opposed to the now modestly extended protection of AM(Zimbabwe), nonetheless in psychiatric cases the focus has always been on the treatment or lack of it in the receiving country and the impact that would have on the person.
  • The obligation is on the applicant to raise a “prima facie case” of potential infringement of Article 3.  The burden being on them to prove that there are substantial grounds for considering, that theirs is a very exceptional case because of a real risk of subjection to treatment, resulting from the foreseeable consequences of the removal [AM at [32]; [108] of Vilvarajah and Others v United Kingdom 1991 ECHR 13163/87].
  • The obligation on the authorities of a returning state dealing with a health case is primarily one of examining the fears of an applicant as to what will occur following return and assessing the evidence [AXBat [123]].
  • There is no freestanding obligation on a returning state to make enquiries to the receiving state concerning treatment or obtain assurances in that regard [AXBat [124]].  Once a prima facie case is established that in accordance with AM at [33] the Secretary of State is not obliged to dispel “any doubts” raised by the applicant’s evidence

On behalf of the Appellant it was argued as follows:

  • The Appellant suffers from severe depression, PTSD, generalised anxiety disorder and paranoid schizophrenia.  The Consultant forensic psychiatrist Dr Galappathie had confirmed that these conditions would have an impact on the Appellant’s memory and ability to recall past events, especially traumatic ones.  Careful and specific attention should be paid to every aspect of such medical report
  • In Savran v Denmark 2019 ECHR 57467/15, the majority decided that the decision in Paposhvili applies to mental health cases and nothing in AM(Zimbabwe) would suggest otherwise.
  • The appellant also relied on the case of R (Carlos) v SSHD.
  • There was no evidence that the Appellant is feigning illness, he was at a high risk of suicide and the test in AM(Zimbabwe) is met.  He relied on the evidence of Professor Joffe about the state of mental health services in OPA.  The Appellant’s current treatment in the UK is medication, he has follow-up appointments with his general practitioner. The test is as set out in Paposhvili and confirmed by the Supreme Court in AM(Zimbabwe).
  • The Tribunal must ask itself whether the appellant would face a real risk, on account of the absence of appropriate treatment in the receiving state or the lack of access to such treatment, of being exposed to (i) a serious, rapid and irreversible decline in his state of health resulting in intense suffering, or (ii) a significant, meaning substantial, reduction in life expectancy.  That this judgment applies to cases involving mental illness and risk of suicide has been confirmed by Sir Duncan Ouseley in R (Carlos) v SSHD.It is for the appellant to demonstrate that there are substantial grounds for believing that such a risk exists; after that point, the burden falls to the Secretary of State to “dispel any doubts raised by it”
  • Professor Joffé had described mental health treatment in the OPA as “dire” and pointed to “a desperate shortage of mental health specialists”.  Professor Joffé also described the availability of public health facilities for individuals with the appellant’s serious mental health disabilities to be “inadequate” and private facilities would not be affordable.
  • The correct test for mental health/suicide cases is now as set out in Paposhviliand confirmed by the Supreme Court in AM(Zimbabwe). This test, adapted to this particular context is whether there are substantial grounds for believing that the appellant would face a real risk on account of the absence of appropriate treatment in the receiving state or the lack of access to such treatment, of being exposed to: (i) a serious, rapid and irreversible decline in his state of his mental health resulting in intense suffering, or (ii)a significant, meaning substantial, reduction in his life expectancy arising from a completed act of suicide.
  • It is conceded by the Secretary of State that return to OPA would breach the UK’s obligations under Article 3.  Even the Secretary of State ’s own evidence entitled Report of the Home Office Fact-Finding Mission Occupied Palestinian Territories: Freedom of movement, security and human rights situation, described mental health in OPA as “a big concern” and as having “severe capacity gaps”

Upper Tribunal agrees the correct test is set out in Paposhvili as confirmed in AM(Zimbabwe):  J and Y subjective fear on return guidance is still valid:

The Upper Tribunal considered and concluded as follows as regards the applicable test:

  • The test to be applied in Article 3 health cases is that found at [183] in Paposhvili as explained by the Supreme Court in AM(Zimbabwe at [29] -31]; namely, whether the Appellant would face a real risk, on account of the absence of appropriate treatment in the receiving state or the lack of access to such treatment, of being exposed to (i) a serious, rapid and irreversible decline in his state of health resulting in intense suffering, or (ii) a significant, meaning substantial, reduction in life expectancy.
  • There is nothing in European or domestic case law to support any contention that Paposhvili does not apply to suicide cases. The Secretary of State accepts it applies.  That Paposhovili applies to cases involving mental illness and risk of suicide, was confirmed in Savran v Denmark and again recently by Sir Duncan Ouseley in Carlos.
  • Insofar as J and Y concern subjective fear on return, the guidance is still valid. There is nothing controversial about points 1-4  in J. What is stated therein has not been overtaken by AM(Zimbabwe).
  • There is no threshold test in either J or Y.  The 6 points made are not a test.
  • They amplify the test set under Article 3 in the light of (‘the Ntest’). Furthermore, the Secretary of State now accepts that the correct test is that in Paposhvili and AM(Zimbabwe).   The reformulation of point 6 by the Secretary of State is an attempt to create a threshold test which has no basis in law.
  • Points 5 and 6 in J give guidance on how to deal with subjective fear.  While the guidance specifically refers to suicide cases, this simply reflects the N  In order to reflect properly the applicable Paposhvili test, the guidance should now apply to mental health cases generally where fear is unfounded.
  • Moreover, the final sentence of point 5 in J is not an attempt to create any extra burden on the Appellant in a suicide (or mental health) case. The point made by the Court of Appeal in J must be considered in context. The Appellant in that case did not have psychosis or schizophrenia. He had PTSD from what had happened to him in Sri Lanka. There was treatment available in Sri Lanka to which the Appellant would have access because he had the support of family members.  Moreover, in Y, the Court of Appeal added to point 5 something of particular relevance to this appeal, namely that what may be of equal importance is whether any genuine fear which the appellant may establish, albeit without an objective foundation, is such as to create a risk of suicide if there is an enforced return.
  • The six points in J apply to mental health cases post Paposhvili. They do not impose a test or a burden on an appellant. They are guidance on how to deal with subjective fear.
  • The Appellant must adduce evidence capable of demonstrating that there are substantial grounds for believing that Article 3 will be violated. This can be explained as raising a prima facie case which means a case which in the absence of challenge would establish infringement.  It is a demanding threshold.  It is for the Appellant to demonstrate that there are substantial grounds for believing that such a risk exists; after that point, the burden falls to the Secretary of State to dispel any serious doubts raised by it (AM[33].)  While the Supreme Court rejected the submission that there is an obligation to dispel any doubts, they interpreted the decision of the Grand Chamber as intending to oblige the Secretary of State to dispel serious doubts.  The test is set out in Paposhvili and AM(Zimbabwe).

Upper Tribunal finds Appellant’s return to Morocco would breach the UK’s obligations under Article 3:

In allowing the Appellant’s appeal, the Upper Tribunal’s reasoning was as follows:

  • There was no meaningful challenge to the medical evidence before the Upper Tribunal. The Appellant had a history of significant mental illness. In 2015 he was assessed by Dr Clark as presenting a significant risk of suicide and as having a subjective belief that others wanted to kill him. A year later the Appellant was assessed by Dr Anderson, a Registered Consultant Clinical Psychologist, who assessed him to be at high risk of violence to himself. He said that his symptoms would diminish rapidly if managed appropriately.  The most recent medical evidence confirmed diagnoses of severe depressive episode, generalised anxiety disorder, PTSD and paranoid schizophrenia/psychosis and stated that he was at high risk of self-harm.  His symptoms were chronic.  He had a history of self-harm and took medication.  In the most recent medical evidence, Dr Galappthie, a consultant forensic psychiatrist, expressed a more pessimistic outlook than Dr Anderson about the Appellant’s prognosis even if he was allowed to remain in the UK (prospects for improvement were limited by the severity and long- standing nature of his mental health problems and underlying psychotic illness)
  • The Upper Tribunal attached weight to all the medical evidence.
  • It was accepted that the Appellant’s memory was impaired for the reasons identified in the medical evidence.
  • What the evidence before the Upper Tribunal clearly established was that the Appellant had been deeply traumatised by an event/events in his lifetime. He has always been consistent about having witnessed the murder of his family. The Upper Tribunal accepted this aspect of his evidence. The medical evidence established a clear link between past trauma/mistreatment and his mental illness.
  • Taking into account the evidence as a whole, including the Sprakab report, properly applying the lower standard of proof there was insufficient evidence that he was from OPA.  The Upper Tribunal found that the Appellant was Moroccan.
  • The Appellant did not have family who are in a position to help him in Morocco or anywhere.  The evidence pointed to the Appellant being very much alone in the world
  • The Appellant had a subjective fear that those who were responsible for killing his family pursued him to Turkey and continue to pursue him.
  • The Appellant was assessed as presenting a high risk of self-harm and suicide and that should he be forcibly removed to OPA or Morocco this was likely to lead to a worsening of his mental health and increased risk of self-harm and suicide. The medical evidence was that detention would lead to an acute psychotic relapse.  On return to OPA or Morocco the Appellant was likely to suffer from worsening psychotic symptoms and present with an immediate and high risk of self-harm and suicide.   It was significant that the medical evidence made no distinction between risk on return to OPA or Morocco.
  • The evidence was that the Appellant struggled to engage with health services when he was homeless. It was accepted that the Appellant as a result of trauma and psychosis/schizophrenia, hears voices telling him to kill himself.
  • The Appellant was at high risk of suicide. Moreover, he would not be able to engage with the limited health care available in Morocco to allay his fears.
  • His condition could not be described as medically stable. He was at high risk of self – harm and his condition was chronic.  His condition would deteriorate on removal to Morocco because the Appellant had a subjective fear that he was being pursued by the people responsible for his family’s death and heard voices telling him to kill himself.   He would arrive in Morocco alone, without support. He was likely to be destitute. He believed he was being pursued.  This must be considered in the context of him already presenting a high risk of self-harm.
  • The medication he received in the UK and visits to his GP had no doubt prevented the Appellant from making any recent attempts on his own life. Having accommodation was a feature that had helped him engage with mental health services. In respect of availability of medical treatment in Morocco, the Upper Tribunal attached weight to Professor Joffé’s clarification of the background evidence relied on by the Secretary State. There was no meaningful challenge to this. While the Upper Tribunal accepted that there are some medical facilities in Morocco which if accessed are capable of offering some treatment, the Tribunal attached weight to the evidence of Professor Joffé that mental health facilities are likely to be inadequate.
  • The Tribunal found that found that private facilities would not be affordable to the Appellant. The medical evidence established that the Appellant was at risk of self-harm or suicide which would materialise as soon as he arrived in Morocco because there would be no support to enable him to access the limited facilities available (though there was no requirement for imminent death properly applying the Paposhvilitest).
  • The evidence did not establish that medical facilities and treatment in Morocco would alleviate the immediate and high risk of self-harm or suicide that the Appellant presented. To the extent that treatment might be available, it would certainly not be accessible to the Appellant.
  • Destitution and poverty were factors that had exacerbated the Appellant’s mental health problems in the past and had also hindered his ability to access medical help in the United Kingdom. His engagement with health services in the UK had been haphazard. It was reasonably likely that he would face destitution and poverty in Morocco. At present the Appellant had accommodation in the and there was some engagement with health services.    Without any kind of support network, family or accommodation, it was unlikely that he would be able to access any kind of health care, state provision or private.
  • The Upper Tribunal took into account the high risk of suicide, daily suicidal thoughts and attempts on his life as documented by Dr Galappthie. The Upper Tribunal attached weight to the fact that the Appellant heard voices.   The Appellant had established that he had a genuine fear, albeit without an objective foundation. That fear was such as to create a risk of suicide if there was an enforced return to Morocco.
  • The evidence before the Tribunal raised a prima facie case of potential infringement of Article 3. Properly applying Paposhvili, the Secretary of State’s background evidence relating to Morocco and health care provision did not dispel serious doubts raised by the Appellant.  The Appellant had established that there were substantial grounds for considering that this was an exceptional case because of a real risk of subjection to inhuman treatment resulting from the foreseeable consequences of his removal.  He would face a real risk, on account of the absence of appropriate treatment in the receiving state or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his state of health resulting in intense suffering and a significant, meaning substantial, reduction in life expectancy.

Conclusion

It will be noted that expert evidence from a psychiatrist, a psychologist as well as a country expert was presented for consideration before the Tribunal in MY’s Article 3 claim. In addition to that, background evidence was considered and was also key to the issues raised in the appeal.

A GP report and representations prepared without further independent research is unlikely to assist a claimant in an Article 3 mental health claim.

 

Upper Tribunal accepts less exacting Paposhvili/AM (Zimbabwe) test can be applied to Article 3 material deprivation claims

In a very lengthy judgment, in Ainte (material deprivation, Art 3, AM) (Zimbabwe) [2021] UKUT 203 (IAC) (22 July 2021), the Upper Tribunal dealt with the proper approach to take in cases involving material deprivation generally, and in the context of Somalia in particular.

Main basis of appeal:

The Appellant, MAA, a Somalian national, was a foreign criminal as defined by s32 of the Borders Act 2007, having been convicted of possession of a Class A drug with intent to supply was sentenced to 4 years imprisonment.   MAA contended that he could bring himself within ‘exception 1’ as set out at s33(2)(a) of the 2007 Act as he sought to prove that his deportation would breach his rights under the ECHR.

Specifically, he contended that he faced a real risk of enduring inhuman and degrading treatment such that would violate Article 3 ECHR. This was on the basis that his return to Mogadishu would result in him facing a real risk of living in conditions of such extreme material deprivation, and so lacking in security, that they would constitute inhuman and degrading treatment under Article 3 ECHR.

(a). “N” versus Paposhvili/AM (Zimbabwe):

As a starting point, in advancing Article 3 material deprivation cases, it is important to appreciate the significance of the relevant differing tests:

  • the very much higher demanding threshold test in N; and
  • the modified test set by Paposhvili/AM (Zimbabwe)

After D v United Kingdom (App No. 30240/96), 24 EHRR 423, in N v United Kingdom (App. No. 26565/05), [2008] Imm AR 657 the Court elaborated what was meant by “exceptional circumstances”:

“42. In summary, the Court observes that since D v the United Kingdom it has consistently applied the following principles. Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling.  In the D case 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 with even a basic level of food, shelter or social support.

43.The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D v the United Kingdomand applied in its subsequent case-law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.”

The approach taken in D Bensaid v United Kingdom (App No. 44599/98), (2001) 33 EHRR 10 and N to health cases has subsequently been uncontroversially applied to those involving non-intentional material deprivation: for instance by the ECtHR in SHH v United Kingdom (App No. 60367/10), (2013) 57 EHRR 18, and domestically in  Secretary of State for the Home Department v Said [2016] EWCA Civ 442[2016] Imm AR 1084.  In such cases, where the feared harm is not caused by the actions of others, that is to say it  is “naturally occurring”, outwith the jurisdiction, applicants are required to demonstrate that theirs is a very exceptional case, where the humanitarian grounds against the removal are compelling.

The “Paposhvili test” is set out in Paposhvili v Belgium (App No. 41738/10), [2017] Imm AR 876:

“183 . The Court considers that the “other very exceptional cases” within the meaning of the judgment in  N. v. the United Kingdom  (§ 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness”.

Paposhvili  was endorsed in December 2020 by the UK Supreme Court in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17[2020] Imm AR 1167, as clarified below.

(b). Upper Tribunal concludes Said  is no authority for the proposition that ‘naturally occurring’ socio-economic deprivation can never as a matter of law found a claim under Article 3:

In Secretary of State for the Home Department v Said [2016] EWCA Civ 442[2016] Imm AR 1084, the appellant a Somalia national, with mental health issues, resisted deportation on the grounds that upon return to Mogadishu he would very likely become destitute, and thus be exposed to the risk of having to enter an IDP camp, where conditions would be very poor.

In delivering the lead judgment Lord Justice Burnett reviewed the caselaw, and in particular the judgment of Lord Justice Laws in GS (India) v Secretary of State for the Home Department [2015] EWCA Civ 40[2015] Imm AR 608, and emphasised that claims based on harms arising from naturally occurring phenomena, such as illness or famine, are not paradigm Article 3 claims.

Because the feared harm was not being intentionally inflicted (either by omission or positive action) the threshold to establish a violation of Article 3 was a high one. Equating cases involving material deprivation with health claims [at §15 and §18] the Court held that the applicable threshold is that set out in N v United Kingdom (App. No. 26565/05), [2008] Imm AR 657 and N v Secretary of State for the Home Department [2005] UKHL 31[2005] Imm AR 353.

In Ainte, the Upper Tribunal sought to ensure an understanding of the effect of Said and noted the submissions put forward during the appeal, ie Said has been misconstrued by decision makers as the decision has been interpreted by some as authority for the proposition that ‘naturally occurring’ socio-economic deprivation can never, as a matter of law, found a claim under Article 3.

The Upper Tribunal observed however that on behalf of the Secretary of State it was readily accepted, such an interpretation would plainly be wrong.  It would be contrary to Strasbourg authority and the decision in Said itself [at §18 and §31].

The Upper Tribunal in Ainte, made it clear that the N threshold is undoubtedly an extremely high one, but it is not insurmountable.  Insofar as cases subsequent to Said have been read to the contrary, such readings are inaccurate. There should be an analysis of the impact on the individual concerned and living conditions must be bad enough to reach the minimum level of severity required to engage the article.  Neither Said nor Secretary of State for the Home Department v MA (Somalia) [2018] EWCA Civ 994[2018] Imm AR 1273 close the door on such cases.

The Upper Tribunal in Ainte concluded that Said is not to be read to exclude the possibility that Article 3 ECHR could be engaged by conditions of extreme material deprivation. Factors to be considered include the location where the harm arises, and whether it results from deliberate action or omission.

(c).Neither MSS v Belgium nor Sufi & Elmi approach applicable to the appeal in Ainte:

A related question which assisted the Upper Tribunal in Ainte in determining which threshold test applied in the appeal before it was the consideration of whether it  mattered whether the material deprivation arose with the jurisdiction of a signatory state.

In considering this issue, the Upper Tribunal sought to draw comparison between the cases of MSS v Belgium and Greece (App No. 30696/09), (2011) 53 EHRR 2 and Sufi and Elmi v United Kingdom (App. Nos 8319/07 and 11449/07) (2012) 54 EHRR 9.

  • In MSS v Belgium and Greece(App No. 30696/09), (2011) 53 EHRR 2 the asylum-seeking applicant had been subject to a third-country removal from Belgium to Greece where he found himself living on the streets in conditions of extreme and unremitting poverty. Holding that those conditions were inhuman and degrading the ECtHR emphasised that asylum seekers were  “a particularly underprivileged and vulnerable population group in need of special protection” and that Greece had purposely failed in its legal duties, both domestic and international,  to give them such protection. In these circumstances the threshold for proving a violation of Article 3 was simply that ordinarily applied: having regard to the personal characteristics of the claimant, can it be said that the treatment he suffered was “inhuman and degrading”?
  • Sufi and Elmi too concerned extreme poverty, but not in a signatory state: here the feared harm arose in southern Somalia. Accepting that the civilian population were in effect starving en masse, and living in conditions of extreme fearfulness and insecurity, the ECtHR went on to examine why. It found that those conditions were not naturally occurring, but arose from the ongoing conflict. For this reason the case was distinguished from N[at §282]: “282. If the dire humanitarian conditions in Somalia were solely or even predominantly attributable to poverty or to the state’s lack of resources to deal with a naturally occurring phenomenon, such as a 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 and 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.”

Consequently in Sufi and Elmi it was the ordinary threshold of harm that was applicable. In respect of what factors might be relevant in this context the ECtHR specifically directed itself to the approach taken in MSS: having “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”.

In Ainte, the Upper Tribunal asked itself which of these approaches should be taken to MAA’s appeal. It was observed that neither party asked the Upper Tribunal to take the Sufi and Elmi option where the ECtHR had found a clear causal nexus between the behaviour of the various parties to the conflict and the suffering of the population.  It was noted that developments in Somalia had since changed that calculus. In  AMM and Others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 445 (IAC) the Tribunal found the preponderant cause of dire poverty in Somalia to be the country’s worst famine in 60 years.  Today the objective evidence pointed towards a plague of locusts that have destroyed successive harvests. In common with the panel in AMM, the Upper Tribunal in Ainte stated that it was in no doubt that three decades of civil war had some part to play in the lack of resources faced by Somalia, but for the purpose of this appeal the parties agreed that at present it was the plague which was the “preponderant cause”. As such the party’s’ in Ainte did not seek to persuade the Upper Tribunal to embark on a Sufi and Elmi analysis of the facts.

The Upper Tribunal in Ainte was however not satisfied either that the ratio of MSS could be applied in the appeal for the following reasons:

  • MSSwas concerned with inhuman and degrading treatment within Europe of a particularly vulnerable individual whom the Greek authorities had both the ability, and legal duty, to protect. That duty arose from Greece’s obligations not only under the ECHR, but under the EEA treaties and its own domestic legislation.
  • Nothing in the decision suggested that the same considerations would extend to a feared violation in a non-signatory state. It was noted that ECtHR had expressly held to the contrary in SHH v United Kingdom{90}

The Upper Tribunal was satisfied that the MSS approach could not be extended to cover situations in which non-ECHR signatories fail to meet their own regional or international commitments.

It followed that the approach to take in the appeal was that set out in N. This in turn was considered to lead to the central legal issue: where is the N threshold to be set in such cases today?

(d). SSHD asks Upper Tribunal in Ainte to confine the Paposhvili modification to health cases

The Upper Tribunal in Ainte began by stating that in Said, Burnett LJ expressly equated cases involving non-intentional material deprivation with those concerning ill-health: the Court held that it was the high N threshold that must be applied to such claims.  This was also the view taken by the ECtHR,  for instance Sufi and Elmi [§282], and by the Court of Appeal, in  MI (Palestine) v Secretary of State for the Home Department [2018] EWCA Civ 1782[2019] Imm AR 75   It was observed that to date there had never been any suggestion that different approaches should be taken to these related species of claims, yet this was the case  being put on behalf of the Secretary of State.

The  Upper Tribunal noted that the reason that the Secretary of State was now concerned to draw a distinction between these two types of ‘non-intentional harm’ cases was the modification of the N test introduced by the ECtHR in Paposhvili v Belgium (App No. 41738/10), [2017] Imm AR 876 and endorsed in December 2020 by the UK Supreme Court in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17[2020] Imm AR 1167.

Following N, claimants were required to demonstrate circumstances so exceptionally appalling that they reached the high threshold set in D: where 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 with even a basic level of food, shelter or social support.  That ‘deathbed’ scenario had now been held to set too high a threshold to properly reflect the values that Article 3 is designed to protect. The formula posited in Paposhvili was that there must be a real risk of: “being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy”.

This was the test endorsed by the Supreme Court in AM (Zimbabwe), albeit it that it is properly understood as a departure from, rather than a clarification of N. It is therefore no longer a requirement of such cases that death be imminent: the focus shifts instead to whether there will be intense suffering in the country of return, or to a significant reduction in life expectancy.

MAA in Ainte requested that the Upper Tribunal apply this modified N threshold.

Amongst others, the following submissions in resistance were advanced on behalf of the Secretary of State:

  • As regards Article 3 of the ECHR, it was never intended that the Convention would be concerned with securing rights outside the territory of the contracting parties
  • Previous caselaw in the ECtHR was concerned with harms that were to be deliberately inflicted by the authorities in the receiving states.
  • It was not until 1997 that the ECtHR in D v United Kingdomfound Article 3 to be engaged in circumstances where the feared degradation and suffering arose naturally. This was the second significant extension to the ambit of the Convention as it was originally conceived. In D the Court found a violation not only where the harm occurred outside of the jurisdiction, but where it arose from the Appellant’s naturally occurring illness: D, and N which followed, represented an ‘extension of an extension’.
  • The application of the D/Nratio to cases involving material deprivation is an extension further still.  Nowhere in any of the judgments in D or N, domestic or European, do the courts expressly contemplate such a leap. More importantly it is clear from the drafting, and indeed the history of the Convention, that its focus is upon civil and political rights as opposed to social, cultural and economic rights.  Said type cases, dealt with ‘an extension of an extension of an extension’: there was pushing at the very limits of the Convention’s protections.  Whilst the Convention may be a ‘living instrument’, its boundaries should not be distorted to the point where it would be unrecognisable to the original signatories.
  • The Upper Tribunal should proceed with caution: the modification of the Ntest introduced by Paposhvili and confirmed in AM (Zimbabwe) was a humanitarian recalibration based very specifically on the circumstances arising in medical cases. Those judgments focused on the illogicality of a distinction between dying on arrival or dying within some months. Should that relaxation of the standard be extended to cases concerned with material deprivation, it will be an extension too far. It would risk, binding the contracting parties to obligations which they did not expressly accept.

The Upper Tribunal was therefore asked by the Secretayr of State to confine the Paposhvili modification to health cases.

(e ).Upper Tribunal in Ainte accepts the less exacting Paposhvili/AM (Zimbabwe) threshold test can apply to Article 3 material deprivation cases

The Upper Tribunal refused to accept the Secretary of State’s submissions putting forward the following reasoning:

  • Decision makers must be careful not to read into the Convention protections beyond its scope, since to do so would be to bind signatories to obligations that they never agreed to. It would however be equally wrong to take a restrictive, originalist approach to the text.  The Convention is to be interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory, and in a manner which continues to reflect the values of the societies that it serves.  A review of the jurisprudence since 1950 reveals just how far, applying those principles, the branches of the tree have already spread.
  • In all of the cases to which the Upper Tribunal had been referred, whether they are about poverty, or a lack of palliative care, or homelessness, the ‘living instrument’ approach has enabled the ECtHR to focus not on fact that the suffering endured by the claimants is socio-economic in nature, but on the suffering itself, and in particular its assault on the human dignity of the individuals concerned.
  • This focus upon dignity has led the Court in recent years to find violations in some arguably unlikely scenarios.
  • Having had regard to jurisprudence the Upper Tribunal was  unable to accept the Secretary of State’s submission that cases concerned with material deprivation are necessarily at the very outer limits of Convention protection and should accordingly be subject to the most stringent of standards, the unmodified N  Strasbourg has already in a variety of contexts recognised rights which, although ostensibly socio-economic in nature, arise in situations fundamentally concerned with human dignity and so capable of engaging Article 3. This approach is consistent not only with the object of the Convention itself, but with the wider humanitarian purpose of human rights law as a whole.
  • The Upper Tribunal was unable to accept the proposition that material deprivation cases are a tenuous ‘extension’ of the health cases at all.
  • The Upper Tribunal in Ainte asked itself what in the health cases is the factor that fundamentally undermines the dignity of the individuals concerned. It was considered that it was not the illnessof Mr D, Ms N, nor Mr Paposhvili which led to the cases before the ECtHR: it was the lack of medical treatment – i.e. material deprivation – that they would face upon expulsion from the host country.
  • Consequently, the Upper Tribunal concluded that it could not agree that there is any jurisprudential distinction between the health cases and those concerned with material deprivation: The Courts have treated them in the same way, uniformly applying the Ntest wherever the feared harm arises from naturally occurring circumstance.
  • Thus whilst the Upper Tribunal accepted that the Convention had expanded, and that each incremental spurt of growth must be carefully considered, it was not accepted that in applying Paposhvili to this case the Tribunal would materially, or impermissibly, be adding to that growth. They would simply be applying the law within its existing limits.  The Nthreshold has been modified by Paposhvili and AM (Zimbabwe) and it is that less exacting, but nevertheless very high test that the Upper Tribunal must apply.  The Upper Tribunal was no longer concerned with whether there would be an imminence of death for MAA upon return to Somalia, but rather whether he will be exposed to conditions resulting in intense suffering or to a significant reduction in his life expectancy such that the humanitarian case for granting leave is compelling.

Whilst MAA’s appeal itself was dismissed having regard to the circumstances of his case, the Upper Tribunal concluded in Ainte that it accepted that having had regard to the caselaw, the findings in MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 442 (IAC) and the evidence before it, it was entirely possible that someone returning to Somalia from the UK would find themselves living in conditions that are inhuman and degrading such that would place the UK in breach of its obligations under Article 3.   It was noted that even applying the modified N test, the threshold is a high one, but on the evidence of the situation faced by those living at the ‘wrong end’ of the spectrum, the Upper Tribunal was wholly satisfied that it could be made out.

Conclusion

An analysis of the legal issues, considerations of relevant caselaw and application of the   modified N test as per Ainte is not confined to  claims of Somalian returnees but can be applied to the case of any returnee/deportee seeking to resist removal on the basis that return to their country is likely to result in them facing a real risk of enduring living conditions which would cumulatively amount to serious harm contrary to Article 3, applying the Paposhvili test as endorsed by AM(Zimbabwe).

In advancing such a claim, the Home Office or the Tribunal will consider relevant existing current country guidance caselaw in relation to the particular question of the material deprivation. Where appropriate however, the decision maker can be asked to depart from such existing country guidance caselaw, providing relevant representations with supportive background evidence including, funding permitting, an appropriate expert country report.

In considering such a claim, a careful assessment of the individual circumstances will be taken into account with a view to reaching a conclusion whether there would be a breach of Article 3 of the ECHR, ie will the individual find himself living in inhuman or degrading circumstances/conditions such that his life expectancy will be significantly reduced, or that he will experience intense suffering of the kind envisaged by jurisprudence.

Relevant considerations in preparation of such a claim will include:

  • The claimant’s life in the county of return before coming to the UK
  • circumstances relating to their family prior to arrival in the UK
  • circumstances related to their family at the date of application or appeal hearing
  • their life in the UK
  • whether they have friends in the country of return
  • circumstances related to offending in the UK and convictions
  • Any medical conditions – relevant to circumstances upon return
  • Possibility of access to money remittances
  • Possible entitlement to a payment under the Facilitated Returns Scheme/Voluntary and Assisted Returns Scheme
  • the likelihood of obtaining any kind of regular humanitarian relief in the country of return, for example from an NGO
  • consideration of the employment situation in the country of return