EM (Zimbabwe) v Secretary of State for the Home Department

Factual and Procedural Background

The Appellant, a citizen of Zimbabwe born in 1970, entered the United Kingdom initially as a visitor in 2002, later obtaining student leave which expired in 2003, after which she overstayed. She claimed asylum in January 2008, based on her political activities with the Movement for Democratic Change (MDC) both in Zimbabwe and subsequently in the UK. She alleged persecution including a rape incident by police in Zimbabwe in 2001 and feared return due to her political activism and the targeting of her family by Zimbabwean intelligence operatives. The Secretary of State refused her asylum and humanitarian protection claims in May 2008, citing inconsistencies in her evidence, lack of credible risk of persecution, and her immigration history. The Appellant appealed to the Asylum and Immigration Tribunal (AIT), where her initial appeal was dismissed by Immigration Judge Telford. A reconsideration limited to her sur place claim (based on activities undertaken in the UK) was ordered and conducted by Immigration Judge Khan, who also dismissed her claim. Permission to appeal was granted on limited grounds by Dyson LJ, focusing on the adequacy of reasons given by the Tribunal regarding the link between the Appellant’s UK activities and the awareness of Zimbabwean authorities. The present appeal challenges the Tribunal’s findings and reasoning.

Legal Issues Presented

1. Whether the Appellant’s political activities in the UK (sur place activities) were such that they would be known to the Zimbabwean authorities and place her at real risk of persecution upon return.
2. Whether the Tribunal provided adequate reasons for its conclusion that the Appellant’s sur place activities did not expose her to a real risk of persecution.
3. Whether the Appellant’s overall claim to asylum and humanitarian protection, including allegations of past persecution in Zimbabwe, was properly assessed and rejected.

Arguments of the Parties

Appellant’s Arguments

• The Appellant contended that the Zimbabwean regime, through the Central Intelligence Organisation (CIO), actively monitors opposition activities in the UK, including those of the MDC, and that her political activism and presence on publicly accessible websites would have brought her to the authorities’ attention.
• She argued that the Tribunal failed to properly take into account the extent of surveillance by the Zimbabwean regime and did not sufficiently explain why this did not translate into a real risk of persecution upon her return.

Respondent’s Arguments (Secretary of State)

• The Secretary of State maintained that the Appellant had not established a credible link between her UK political activities and any awareness or adverse interest by the Zimbabwean authorities.
• Reliance was placed on inconsistencies in the Appellant’s evidence, the limited nature of her MDC involvement in the UK, and country guidance indicating that mere participation in opposition activities abroad does not necessarily lead to persecution on return.
• The Secretary of State also highlighted that the Appellant’s husband’s return to Zimbabwe and the absence of difficulties at the airport undermined the claim of risk.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court carefully examined the evidence and findings of the Tribunal concerning the Appellant’s sur place claim. It noted the Tribunal’s consideration of the political surveillance conducted by the Zimbabwean regime as established in country guidance, particularly the high level of monitoring of MDC activities in the UK. The Tribunal balanced this against the limited nature and scale of the Appellant’s involvement, the absence of any direct evidence that the Zimbabwean authorities were aware of her specific activities, and the fact that thousands of individuals engaged in similar activities without being singled out.

The Court emphasized the legal principle that the risk of persecution depends on the authorities’ perception and knowledge of the claimant’s activities. It recognized that the Tribunal’s assessment of the likelihood that the Appellant’s activities were known to the regime was a factual determination within its discretion. The Court further highlighted the narrow grounds for appellate intervention in such factual findings, requiring either an error of law or a perverse or irrational decision.

Regarding the adequacy of reasons, the Court found that the Tribunal sufficiently identified the critical issues and explained its reasoning, including references to relevant case law and country guidance. The Tribunal’s rejection of the Appellant’s credibility on key aspects of her claim and its conclusion that she would not face a real risk of persecution were supported by the evidence and not legally flawed.

The Court also addressed the Appellant’s immigration history and inconsistencies in her evidence, reinforcing the finding that the claim lacked credibility and that the risk of persecution was not established. It reaffirmed that the mere fact of asylum claims or political activism does not automatically translate into a risk without credible evidence linking the claimant’s profile to the authorities’ adverse interest.

Holding and Implications

The Court DISMISSED the Appellant’s appeal against the decision of the Asylum and Immigration Tribunal.

The direct effect of this decision is that the Appellant’s claims for asylum and humanitarian protection are conclusively rejected, and she remains liable to removal to Zimbabwe. The Court did not set any new legal precedent but reinforced established principles regarding the assessment of sur place claims, the burden of proof on appellants, and the standard for appellate review of factual findings and reasons provided by tribunals.