Summary of Judgment
28 Oct 2021
- On 21 September 2021, a presidential panel comprised of Lane J and UTJ Plimmer handed down an important case on cessation and Article 3 claims in Zimbabwe, namely PS v SSHD [RP/00142/2018].
- The case has not been designated as CG [77][1] and it does not set out updated risk categories. However, expert evidence was called by both PS and the SSHD, which was considered in detail by the Tribunal and set out in an Agreed Joint Schedule of Country Evidence. Given the thoroughness of the consideration of the evidence and the seniority of the panel, the findings on the current evidence may be persuasive for other tribunals, and useful for those resisting removal to Zimbabwe.
- PS is a citizen of Zimbabwe who was granted refugee status on 13 February 2008 on the basis of her account of being an MDC activist [5].
- PS was convicted of manslaughter by gross negligence of her infant child and sentenced to 8 years imprisonment [6]. The SSHD issued a s.72 certificate, initiated deportation proceedings, revoked PS’s leave and refugee status, and refused her asylum and human rights claims. On appeal to the FTT, the FTT maintained the s.72 certificate and refused her asylum and human rights claims. At error of law, the UT rejected PS’s complaints about the FTT’s approach [11] but found errors of law in the approach to cessation and human rights.
- The issues were therefore:
- whether the SSHD had displaced the burden of showing that the circumstances in connection with which the appellant had been recognised as a refugee had ceased to exist; and
- whether deportation would breach Article 3 ECHR.
Facts
- Medical and country experts were instructed for both PS and the SSHD: Dr Brock Chisholm for PS and Dr Soham Das for the SSHD, Dr Hazel Cameron for PS and Dr Knox Chitiyo for the SSHD.
- The UT found that PS suffers from mental illness: persistent complex bereavement disorder and moderate depression. Her mental state fluctuates and is unpredictable, she is predisposed to developing a psychotic episode. The UT found a current moderate risk of suicide which would increase with the stressors of deportation. [45] [60] [61]
- The SSHD’s accepted that the correct approach when considering cessation is for the facts asserted in the initial claim to be taken at their highest [62]. The UT thus accepted that PS was a political activist who had been subjected to ill-treatment in Zimbabwe [64]. However, her assertions of continued political activity in the UK had been exaggerated. The UT accepted PS had attended meetings of the Zimbabwe Human Rights organisation, but rejected her claim that she was an active or leading member of any political or civil organisation since being in the UK [66].
- The UT found that PS was dependent upon her brother and sister in the UK for her day-to-day functioning [67]. The UT found that evidence relating to the absence of family members in Zimbabwe was unreliable, but that even if present, they were unlikely to be able to be in a position to provide any meaningful support to PS given the length of her absence, the fact that her criminal conviction and her mental health presentation are likely to be considered a source of shame and the fact that “the average Zimbabwean finds daily life extremely challenging even without the burden of caring for a family member” [72].
Cessation
- The UT accepted that there had been changes in the political situation, the general country conditions and PS’s own circumstances since the grant of asylum in 2008 [75-76].
- However, importantly for the purposes of cessation the Tribunal concluded that it cannot be said “from a comparison of the CG cases alone, that there has been significant and durable change regarding those at risk from the ZANU-PF state apparatus” [81] and “[i]t is uncontroversial that the Zimbabwean state and its agents continued to target its political opponents and some of those perceived to be in opposition to it.” [81].
- Notwithstanding decreased political activity, past activism and low-level support meant that PS would be unable to demonstrate ZANU PF loyalty in Masvingo [82]. The SSHD’s submission that there would be no risk in PS’s home area because she would have family support was unhesitatingly rejected [83-6], referencing SSHD (Minimum standards for granting refugee status or subsidiary protection status – Criteria for assessment – Judgment) [2021] EUECJ C-255/19 (20 January 2021) in which it was concluded that social and financial support provided by family members falls short of what is required under the relevant provisions to constitute effective protection against persecution.
- By reference to the country guidance EM and others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC), later modified by CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 00059 (IAC), promulgated on 31 January 2013, the SSHD had not displaced the burden of establishing a durable change of circumstances [87] and the situation in Zimbabwe concerning those at risk from ZANU PF cannot be said to have durably changed in so far as they related to this particular Appellant [94].
- The UT “acknowledged there have been changes to the general political and humanitarian landscape in Zimbabwe, as well as for those at risk for reasons relating to their political or lack of political involvement or perceived associations” [88]. While it was not strictly necessary to consider these since PS succeeded by reference to the CG, for completeness, the UT set out their findings:
- “First, although the overall situation improved slightly after CM, the level and intensity of human rights violations have increased in more recent years.” [89]
- While the statistics show a trend of reducing human rights violations, limited weight can be attached to them, particularly in light of the consistent view that conditions have deteriorated in recent years [90].
- There has been a recent increased emphasis on quelling protests and enforcing lockdown. MCD activists remain under threat and this is likely to worsen in the run up to the elections [91].
- Violence is both targeted and random and “the actions of the state apparatus remain arbitrary, unpredictable and fluid” [91]
- The evidence shows the state being the perpetrator of violations of human rights rather than the informal militias of 2005-8. [92]
- Failed asylum seekers are not at risk upon arrival at the airport for this reason alone [93].
- There has been a deterioration in country conditions in certain key areas [94]
- “There remains a climate of overarching suspicion against those who oppose the government and its policies. A new election cycle is imminent and the impact of the Covid-19 pandemic remains uncertain.” [94]
- “The undisputed evidence suggests that there has been a deterioration in Harare and the extant CG indicates that even without a significant opposition profile, some remain at real risk in Masvingo.” [94]
Article 3
- The UT found that PS would be at risk of Article 3 ill-treatment on return at the airport and/or in Harare; the latter on the basis that there were substantial grounds for believing that if removed, she would be exposed to a real risk of a serious rapid and irreversible decline in health resulting in intense suffering. Importantly, the SSHD had conceded that if PS adduced evidence capable of meeting this threshold, she should succeed in her appeal [35] as the evidence of available treatment in Zimbabwe did not reach the requisite degree of certainty required under Paposhvili.
Risk at airport
- It was noted by the UT that PS would be returned as someone who had “been granted refugee status on the basis of her MDC involvement”. At the airport when questioned, PS would have to disclose this. This history would distinguish her from those who are merely failed asylum seekers [99].
- Dr Chitiyo could not exclude risk at the airport, which “would be higher if there was any publicity or if the appellant exhibited any unusual behaviour due to mental stress” [100].
- Taken together, the UT held “[t]he deterioration of the appellant’s mental health and in combination with her undisputed history are reasonably likely to be viewed with suspicion by the CIO. There are substantial grounds for believing that this may result in her acting unpredictably and in a manner likely to draw further adverse attention. This taken together with her accepted history is such that there is a real risk that she will be taken for further interrogation and subjected to ill-treatment contrary to Article 3.” [101].
Risk in Harare
- In respect of risk in Harare, the economic and food security challenges facing most Zimbabweans taken on their own would be insufficient to meet the high threshold required by Article 3 [104]. Nor is PS’s profile as a past MDC activist and current low level support such that she is at real risk in Harare for this reason alone [106].
- However “[t]his is not a case in which political profile, likely mental health deterioration in Zimbabwe and the general prevailing circumstances in Zimbabwe can be compartmentalised”:
- PS would find it very difficult to adjust after a 19-year absence and without family or social support in Harare. PS has extensive support in the UK, which is a pivotal aspect of the “treatment” she has been receiving in the UK [107].
- “Accessing basic amenities such as food and water is challenging for those without mental illness and who have lived in Harare for lengthy periods.” [108]
- Employment in Zimbabwe is entirely implausible for PS, given her mental health. [108]
- It is likely that the symptoms associated with her depression and bereavement disorder will worsen and intensify within a short period of her arrival in Harare to the extent that it will break her mental and physical resolve [109].
- “It is against this background that we conclude there is a real risk of a serious, rapid and irreversible decline in her health resulting in intense suffering.” [109]
- “Remittances might be able to fund basic accommodation and food but she will be entirely unable to negotiate the daily challenges of accessing day to day basic amenities without support, such that within a short space of time she is likely to deteriorate to such an extent that she will experience intense suffering and degrading treatment in breach of the high threshold required by Article 3” [110].
Representation
- PS was represented by Victoria Laughton and Harriet Short at One Pump Court Chambers instructed by Haroon Karimdad, Ruth Karimatsenga and Bahar Ata at Duncan Lewis Luton. The SSHD was represented by Colin Thomann at 39 Essex Street, instructed by GLD.
One Pump Court Chambers
24 September 2021
[1] Linking with other cases was resisted on the grounds of the vulnerability of the appellant and the complexity of the issues.
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