AA (Risk for involuntary returnees) Zimbabwe CG Rev 1

Factual and Procedural Background

This opinion concerns a reconsideration ordered by the Court of Appeal, which set aside a prior determination by a panel of the Asylum and Immigration Tribunal ("the first Tribunal"). The first Tribunal found a material error of law in the decision of an immigration judge who had allowed the appellant's appeal against removal as an illegal entrant. The first Tribunal substituted a fresh decision allowing the appeal on asylum and human rights grounds. The Court of Appeal remitted the appellant's appeal for a de novo hearing before this Tribunal. This hearing included extensive documentary and oral evidence, some of which was not before the first Tribunal. The appellant is a citizen of Zimbabwe who arrived in the United Kingdom in 2002, claimed asylum after being detained, and whose claim was refused before the immigration judge. The key issue relates to the risk of ill-treatment upon involuntary return to Zimbabwe as a failed asylum seeker.

Legal Issues Presented

1. Whether it is presently safe for the Secretary of State to recommence involuntary removal of failed asylum seekers to Zimbabwe by the same route and method as previously used, specifically whether there is a "real risk" of treatment contrary to Article 3 of the European Convention on Human Rights.
2. Whether the appellant would face risks if he were to return voluntarily to Zimbabwe, which affects entitlement to refugee status under the Refugee Convention.
3. Whether failed asylum seekers returned involuntarily to Zimbabwe face a real risk of persecution or serious ill-treatment solely because of their status as failed asylum seekers returned involuntarily.
4. How the "real risk" test should be applied in the context of risk arising from membership of a class of persons rather than individual characteristics, including the application of the "gross and systematic" pattern of human rights violations test.

Arguments of the Parties

Appellant's Arguments

• The appellant argues that failed asylum seekers returned involuntarily to Zimbabwe face a real risk of persecution or ill-treatment solely due to their status as failed asylum seekers returned involuntarily.
• The appellant criticizes the respondent's evidence collection methodology, particularly the reliance on NGOs' reports, arguing that the small number of returnees and the climate of fear in Zimbabwe mean abuses are underreported.
• The appellant contends that the International Organisation for Migration ("IOM") is an unsuitable body to monitor returnees due to its close links with the Zimbabwean government.
• The appellant emphasizes the climate of fear and repression in Zimbabwe, suggesting that returnees are at risk of serious ill-treatment, including torture and intimidation, especially at Harare airport and thereafter.

Respondent's Arguments

• The respondent maintains that it is safe to recommence involuntary removals to Zimbabwe as the evidence does not establish a real risk of ill-treatment solely because of failed asylum seeker status.
• The respondent relies on extensive evidence from NGOs, embassy inquiries, and country experts suggesting no systematic pattern of ill-treatment of involuntary returnees solely on that basis.
• The respondent defends the role of the IOM as an appropriate partner in assisting reintegration and monitoring returnees, emphasizing that the IOM's activities are humanitarian and apolitical.
• The respondent argues that risk arises only where returnees have additional adverse features such as a political profile, relevant military history, or outstanding criminal issues.
• The respondent emphasizes that all returnees undergo an initial screening interview at Harare airport, with further interrogation and risk arising only where suspicion is triggered beyond mere returnee status.

Table of Precedents Cited

Court's Reasoning and Analysis

The court conducted a detailed analysis of extensive evidence, including oral testimony from witnesses with experience of Zimbabwean security procedures, country expert reports, NGO evidence, and individual accounts of involuntary returnees. It distinguished between two stages of treatment at Harare airport: an initial screening interview and a subsequent interrogation for those flagged by intelligence or suspicion.

The court accepted that a real risk of serious ill-treatment arises only if a returnee is subjected to interrogation, which is associated with political profile, military history, or outstanding criminal issues. Mere status as a failed asylum seeker returned involuntarily does not, in itself, give rise to a real risk of ill-treatment.

The court carefully scrutinized individual accounts of returnees, noting that many claims were disbelieved by adjudicators or lacked corroboration. It found that only a very small minority of the 210 involuntary returnees may have suffered ill-treatment attributable solely to their returnee status, which does not amount to a consistent pattern required to establish real risk.

The court also considered the evidence concerning the role and reliability of NGOs and the IOM. It acknowledged the difficulties NGOs face in monitoring returnees due to resource constraints and fear among Zimbabweans, but found their evidence insufficient to establish a systematic pattern of abuse. The court accepted the IOM’s role as appropriate for reintegration assistance but noted that its monitoring does not pertain to safety of return.

The court reaffirmed the country guidance established in SM and Others concerning categories of individuals at risk, emphasizing that the appellant did not fall within these categories. It concluded that the appellant’s subjective fear was not objectively well-founded and that he would not face a real risk of persecution or ill-treatment solely by virtue of involuntary return.

Holding and Implications

The court's final decision was to DISMISS the appellant's appeal on both asylum and human rights grounds.

The appellant failed to demonstrate a real risk of persecution or ill-treatment solely on the basis of being an involuntary returnee failed asylum seeker. The decision confirms that involuntary returnees are not automatically at risk unless they present additional risk factors such as adverse political profile or unresolved criminal issues. The established country guidance on risk categories remains authoritative. The decision does not set new precedent but clarifies the application of the real risk test in this context, emphasizing careful scrutiny of individual circumstances and the importance of consistent patterns of abuse to establish risk.