OM (AA(1) wrong in law) Zimbabwe CG

Factual and Procedural Background

The Appellant, a citizen of Zimbabwe in his early twenties, appealed a decision by the Respondent dated 11 March 2006 refusing him asylum and a subsequent decision on 23 March 2006 to remove him as an illegal immigrant. The Appellant claimed refugee status and argued that his removal would violate his protected human rights. The appeal was dismissed by Immigration Judge Timpson around 22 May 2006. However, Senior Immigration Judge Warr ordered reconsideration, noting the Appellant was not found credible and directing further consideration of returnability issues in light of the Court of Appeal decision in AA and LK [2006] EWCA Civ 401, indicating the grounds of the application were arguable.

The Appellant did not challenge the adverse credibility finding. The background includes the Court of Appeal's April 2006 judgment in AA and LK, which overturned earlier Tribunal country guidance in AA(1) concerning involuntary returns to Zimbabwe. The Tribunal reheard AA(1) and issued a new decision AA(2) concluding that involuntary returnees to Zimbabwe do not face a real risk of persecution or ill-treatment on return solely due to their status as failed asylum seekers. The Tribunal refused permission to appeal AA(2), which was renewed to the Court of Appeal.

The Appellant sought an adjournment of this appeal pending a possible Court of Appeal decision on AA(2), which was refused. The Tribunal emphasized the overriding objective to handle proceedings fairly, quickly, and efficiently, and noted that adjournments are only granted when an appeal cannot otherwise be justly determined. The Tribunal reasoned that the appeal should be decided based on current law and guidance, not on potential future rulings.

The reconsideration focused on application of the Court of Appeal ruling in AA and LK, which overturned AA(1) and required the Immigration Judge to consider the relevant country guidance still applicable. The Tribunal highlighted the legal framework underpinning country guidance cases, referencing the Asylum and Immigration Tribunal (Procedure) Rules 2005 and statutory provisions mandating that such guidance be treated as authoritative unless superseded or unreliable.

The Immigration Judge was found to have correctly disregarded the discredited AA(1) and to have relied, implicitly or explicitly, on the earlier case SM and Others (MDC - Internal Flight - Risk Categories) Zimbabwe [2005] UKAIT 00100, which identified risk categories for persecution in Zimbabwe. The Appellant did not fall into any such category, and the hostile environment towards failed asylum seekers did not, by itself, constitute a real risk of ill-treatment or breach of Article 3 of the European Convention on Human Rights (ECHR).

The Immigration Judge's decision, though not extensively reasoned, was considered legally sound and supported by the evidence. Arguments that the Immigration Judge should have followed AA(1) on the Article 3 issue were rejected, as AA(1) was overturned and its findings on risk were deemed inadequate. The Court of Appeal in AA and LK criticized the Tribunal's assessment in AA(1) for failing to properly evaluate evidence of ill-treatment risk. Consequently, the Immigration Judge did not err in law by following SM instead of AA(1).

The subsequent AA(2) decision, although not available at the time, generally upheld SM's conclusions with some additional considerations. The original Tribunal's determination was affirmed as free of material legal error.

Legal Issues Presented

1. Whether the Immigration Judge erred in law by refusing asylum and ordering removal of the Appellant, particularly regarding the application of country guidance on involuntary return to Zimbabwe.
2. Whether the adverse credibility finding against the Appellant was justifiable and its impact on the appeal.
3. Whether the Appellant's removal would contravene his rights under Article 3 of the European Convention on Human Rights.
4. Whether an adjournment of the appeal was warranted pending the outcome of a renewed application for permission to appeal the AA(2) decision.

Arguments of the Parties

Appellant's Arguments

• The Appellant claimed refugee status and argued that removal would violate protected human rights.
• Contended that the Immigration Judge should have followed the earlier country guidance in AA(1) regarding risk under Article 3 rather than SM.
• Asserted that involuntary return would expose him to a real risk of ill-treatment, as his details would be known to Zimbabwean authorities upon arrival.
• Sought adjournment of the appeal pending the Court of Appeal's decision on AA(2), which might affect the legal landscape.

Respondent's Arguments

• Maintained that the Immigration Judge correctly applied the law and relevant country guidance, particularly SM, and properly dismissed the appeal.
• Argued that AA(1) was overturned by the Court of Appeal and was no longer authoritative or reliable.
• Opposed the adjournment application, emphasizing the need to decide the appeal on current law and guidance.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by emphasizing the binding nature of country guidance cases under the statutory framework and Practice Directions, requiring the Tribunal to treat such guidance as authoritative unless it becomes unreliable due to fresh evidence or legal error. The Court noted that AA(1) was overturned by the Court of Appeal in AA and LK, rendering it legally incorrect and no longer authoritative.

The Immigration Judge correctly disregarded AA(1) and, although not expressly referencing SM, his decision aligned with its findings. SM identified risk categories for persecution in Zimbabwe and concluded that failed asylum seekers generally do not face a real risk of ill-treatment upon return solely because of their status. The Appellant did not fit into any risk category identified by SM.

The Court rejected the Appellant's argument that the Immigration Judge should have followed AA(1) on the Article 3 issue, explaining that the Court of Appeal in AA and LK criticized the Tribunal's flawed assessment of evidence in AA(1). Consequently, the assertion that AA(1) remained authoritative in certain respects was incorrect.

The Court also addressed the Appellant's request for adjournment pending the Court of Appeal’s decision on AA(2), finding no justification for delay as the appeal must be decided on current law and guidance. The possibility of future changes in law did not warrant postponement.

Overall, the Court found no material error of law in the original Tribunal decision and affirmed the dismissal of the appeal.

Holding and Implications

The Court held that the original Tribunal decision dismissing the Appellant's asylum appeal and ordering removal stands as it did not involve a material error of law.

The direct effect of this decision is that the Appellant’s removal may proceed in accordance with the existing legal framework and country guidance. No new precedent was established by this ruling, and the Court reaffirmed the necessity of applying current authoritative country guidance unless it is superseded or rendered unreliable by fresh evidence or legal developments.