TM (Zimbabwe) & Ors v Secretary of State for the Home Department

Factual and Procedural Background

This judgment concerns three joined appeals against decisions of the Asylum and Immigration Tribunal (AIT) involving appellants who are nationals of Zimbabwe. Each appellant sought asylum from the Secretary of State but was unsuccessful, and their subsequent appeals to the AIT also failed. The principal ground of appeal in each case was whether, on the facts accepted by the AIT, it was open to them to reject the appeal in light of the Country Guidance authority of RN [2008] UKAIT 00083. The appeals also raised questions about the significance of sur place activity when assessing risk upon return to Zimbabwe.

One appellant's case (LZ) was dismissed on jurisdictional grounds without consideration of the merits. The other two appeals (KM and TM) were considered on their merits following detailed factual and legal analysis.

Legal Issues Presented

1. Whether the AIT erred in law in concluding that there was no real and substantial risk of persecution on return to Zimbabwe, having regard to the Country Guidance case RN.
2. The legal significance of sur place political activities in assessing risk of persecution.
3. Whether an asylum seeker can be required to conceal political opinions to avoid persecution, or whether they are entitled to asylum if they would have to reveal opposition to the regime.
4. The implications of adverse credibility findings on an asylum claim where risk is assessed.
5. Whether the AIT had jurisdiction to reconsider an appeal in light of new country guidance after having found no error of law in the original decision (specific to LZ).

Arguments of the Parties

Appellants' Arguments

• The appellants contended that based on the RN guidance, they fell into categories of heightened risk (e.g., failed asylum seekers, teachers, political activists) and thus should be granted asylum.
• They argued that sur place political activities undertaken in the UK should be considered as raising a real risk of persecution on return.
• One appellant submitted that if asked by Zimbabwean authorities about political views, she would have to reveal opposition to the regime, which would place her at risk, and that the tribunal should assume she would tell the truth rather than dissemble.
• It was submitted that adverse credibility findings should not defeat a claim where other evidence establishes a real risk.
• In LZ's case, it was argued that the AIT erred by refusing to reconsider the appeal under the updated RN guidance.

Respondent's Arguments

• The Secretary of State maintained that the AIT's findings were lawful and supported by evidence, including that low-level sur place activities would likely remain unknown to Zimbabwean authorities.
• It was submitted that being in a heightened risk category does not automatically establish a real risk of persecution; the facts of each case must be assessed individually.
• Regarding the requirement to disclose political opinions, the respondent argued that the relevant question was what the appellant would in fact do, and if they would feign loyalty, no real risk would arise.
• In LZ's case, it was argued that the AIT lacked jurisdiction to reconsider the appeal under RN once it had found no error of law in the original decision.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by outlining the established legal principles governing asylum claims, emphasizing the requirement of a real and substantial risk of persecution for a Convention reason, here political opinion. It underscored the deference owed to the AIT as an expert tribunal and the binding nature of country guidance decisions such as RN.

The court summarized the RN country guidance, which expanded the risk category in Zimbabwe to include anyone unable to demonstrate loyalty to the ruling party, Zanu PF, and described the role of militia gangs in perpetrating violence against perceived opponents. It distinguished risks at the airport, where state intelligence focused on opposition activists, from risks en route home, where militia violence was more random.

The court analyzed the significance of sur place activities, noting that while such activities can ground claims, their evidential weight depends on whether they are likely known to home state authorities. It accepted that low-level political activities in the UK may not be known to Zimbabwean authorities, consistent with prior case law.

Regarding adverse credibility findings, the court reiterated that an asylum claim is not defeated solely by disbelief of the applicant’s testimony if other material supports a real risk. However, in the absence of credible evidence establishing risk, the claim must fail as the onus lies on the applicant.

The court considered the novel submission that asylum seekers cannot be required to conceal political opinions to avoid persecution, drawing analogy to the Supreme Court’s decision in HJ (Iran). It accepted the principle generally but doubted its full application in cases where political beliefs or activities are marginal to the applicant’s identity and life, leaving the question open for future determination.

In the individual appeals, the court found that the AIT’s assessments were supported by evidence and law. For KM, the appellant’s repeated safe returns to Zimbabwe and lack of credible political activity undermined the risk claim. For TM, the AIT’s rejection of credibility and findings that sur place activities were unlikely to be known justified dismissal. For LZ, the court held that the AIT lacked jurisdiction to reconsider the appeal under RN after finding no error of law in the original decision, rendering the appeal invalid.

The court emphasized that each case is fact-sensitive and that falling within a heightened risk category does not automatically establish a real risk of persecution. It also stressed the importance of respecting the AIT’s expertise and findings absent clear legal error.

Holding and Implications

The court DISMISSED all three appeals.

The direct effect is that the appellants’ asylum claims remain refused and their appeals against the AIT decisions fail. The court confirmed the binding nature of country guidance and the careful fact-sensitive approach required in asylum cases. It also clarified the limits of the jurisdiction to reconsider appeals once an error of law has been excluded. No new precedent was established beyond applying existing principles to the facts of these cases.