Upper Tribunal
(Immigration and Asylum Chamber
NN
(Teachers: Matabeleland/Bulawayo: risk) Zimbabwe CG [2013] UKUT 198(IAC)
THE IMMIGRATION ACTS
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Heard at Bradford
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Determination Promulgated
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On 13 March 2013
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…………………………………
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Before
Upper Tribunal Judge Southern
Upper Tribunal Judge Coker
Between
NN
Appellant
and
THE SECRETARY OF STATE FOR THE HOME
DEPARTMENT
Respondent
Representation:
For the Appellant: Mr
T. Hussain instructed by Parker Rhodes Hickmotts.
For the Respondent: Mr
J. Wardle, Home Office Presenting Officer
The “geographical filter” identified in EM
and Others (Returnees) Zimbabwe CG [2011] UKUT 98(IAC) and confirmed more
recently in CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59(IAC) is equally applicable to teachers. Thus, a
teacher will generally not face a heightened risk on return to Zimbabwe, on
account of his or her occupation or former occupation alone, if his or her
destination of return is (a) rural Matabeleland North or Matabeleland South,
where a returnee will in general not face a real risk of harm from Zanu-PF
elements, including the security forces, even if he or she is a MDC member or
supporter; or (b) Bulawayo, where the returnee will in general not face such a
risk, even if he or she has a significant MDC profile
DETERMINATION AND REASONS
- The
main issue arising in this appeal is whether former teachers returning to
Zimbabwe as failed asylum seekers after a period living in the United
Kingdom face an enhanced risk on return on that account throughout
Zimbabwe or whether the “geographical filter” identified in EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC) and re-stated recently
in CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59 (IAC) should now inform the assessment of risk where return is
to one of the areas where being identified as a supporter or member of or
activist on behalf of the MDC is not something that attracts any real
difficulty.
- We
have, to assist us in addressing that question, a report prepared recently
by a country expert, Dr Laurel Birch Aguilar. Although, as we shall see,
there is reason to find that report to be problematic in respect of its
conclusions specific to this particular appellant, it is accompanied by a
collection of news reports about difficulties experienced by teachers in Zimbabwe. As this appeal was previously adjourned specifically for that expert report to be
compiled, it is reasonable to assume that this bundle of news reports,
assembled by Dr Aguilar to accompany her report, represents a reasonably
comprehensive picture of the level of harassment or persecution to which
teachers and former teachers are being subjected in Zimbabwe.
- In
addressing us upon the historic reasons why teachers in Zimbabwe have for some time been recognised to fall within a category of enhanced risk, Mr
Hussein identified the following:
- Teachers
are seen as “opinion formers” in society and, given the nature of their
work they have an unmatched opportunity to influence the views of
children and young people;
- Zanu-PF,
and the government it has controlled since the days of independence, has
always regarded one of its strengths to lie in harnessing the support of
young people, hence the emergence and deployment of the “green bombers” and
other youth militia used as instruments of the ruling party and the
regime of President Mugabe, particularly at the time of elections;
- Teachers
are perceived, generally, to be more likely to support the aims of the
MDC than of Zanu-PF, whether that is the fact or not. In part, this
arises from the relative strength of the trade union associations
representing teachers;
- Teachers
have been used as polling officers and so are in a position to
“influence” the voting process, to the disadvantage of Zanu-PF, hence the
intimidation, threats and violence meted out to teachers to ensure
compliance with the will of Zanu PF.
- Thus
the risk, it would appear, is predicated upon the imputed profile of a
teacher being someone who would support the MDC, to seek to influence
others, especially young people, to that point of view, and seek to thwart
the electoral ambitions of Zanu-PF.
- The
appellant, who was born on 16th June 1972, is a citizen of Zimbabwe. She arrived in the United Kingdom on 2nd May 2008, and claimed asylum.
She claimed that she would be at risk on return to Zimbabwe on account of her political opinion as a supporter or member of the MDC. She and
her husband had both worked as teachers in Zimbabwe in a place called
Nkayi, which is in Matabeleland North, about three hours drive from Bulawayo. In interview she said that her husband “taught agriculture” and she herself
worked part time as a teacher at primary school level. She explained that
in 2008 soldiers came to the school and accused her husband of teaching
MDC politics to the boys. They were both beaten and her husband was taken
away.
- The
appellant said she went to stay at the family home in Bulawayo and a few
days later discovered her husband’s body at the morgue. Soon after that
she was visited by the men who she presumed were responsible for her
husband’s death. As a consequence of the demands they made of her she left
for South Africa where, about two months later, she secured the services
of an agent who arranged her flight to the United Kingdom.
- The
appellant’s appeal against the immigration decision (refusal of leave to
enter) that accompanied refusal of her asylum claim came before
Immigration Judge Birkby on 16th September 2008. It might be
observed before reflecting further upon that determination that the
country guidance provided by RN (Returnees) Zimbabwe [2008] UKAIT 83 did not become available until after the date of that hearing,
it being added to the list of published country guidance decisions about
two months later, on 19th November 2008.
- The
judge dismissed the appeal because he did not accept to be true any part
of the appellant’s account of being a member or supporter of the MDC or of
having attracted any adverse attention from soldiers or anyone else before
choosing to leave Zimbabwe and travel to the United Kingdom. Having
identified significant inconsistencies and contradictions in the
appellant’s evidence he concluded that it had been “fabricated”.
- Specifically,
the judge did not accept that the appellant or her late husband were ever
involved with the MDC or that he, that is her husband, was “singled out”
at school for adverse attention. The judge found also that there had been
no unwelcome visitors to the family home, and concluded that:
“I do not find therefore
that the Appellant left Zimbabwe in fear of persecution or any form of
ill-treatment.”
- The
judge did, though, accept two aspects of the appellant’s evidence. He
said:
“I accept that she may well
have been a schoolteacher in Zimbabwe…”
and he said nothing to suggest that he
rejected the appellant’s evidence that her late husband also worked as a
schoolteacher.
- The
judge looked at the country evidence about the position of schoolteachers
and, noting reports of recent agreement having been reached between the
MDC and President Mugabe, presumably as to the power sharing arrangements
that resulted, said this:
“… it is not possible at
this stage to assess whether the political and human rights situation is going
to improve in the short or medium term. Therefore I accept from the background
documentation that there is substantial evidence of human rights abuses, in
particular ill-treatment of political opponents of the Robert Mugabe regime and
within the groups who have been persecuted schoolteachers.”
Notwithstanding that, he concluded that this
particular former schoolteacher would not be at risk on return:
“That situation still
presents risks for certain Zimbabweans on return. I do not however consider
that the evidence given by the appellant as to her history of persecution in Zimbabwe and that of her husband is credible. I do not consider her to be at risk on
return. Her evidence was at times inconsistent and implausible.”
- It
seems from what is said in the determination that the judge excluded the
risk of ill-treatment on return simply on the basis that he had rejected
her account of past persecution, without considering the likely reception
this appellant, with no history of past persecution, would experience as a
former teacher returning from the United Kingdom after a relatively brief
absence.
- On
11th March 2009 Hickinbottom J granted an order for
reconsideration of that decision because he found that the issue of the
risk of persecution faced by the appellant as a teacher might need to be
reviewed in the light of RN (Returnees) Zimbabwe [2008] UKAIT 83.
Although RN was not before the judge, a good deal of the evidence
that was to be considered, and accepted, by the Tribunal in RN was
before the judge, including a report from the country expert, Professor
Ranger, who gave evidence before the Tribunal in RN.
- At
the first stage reconsideration hearing a Senior Immigration Judge found
that the Immigration Judge had indeed erred in law in failing to carry out
an adequate assessment of the risk on return to the appellant as a
teacher, in the light of that part of the evidence reviewed in RN that
had also been available before him. That re-assessment was carried out by
Immigration Judge Kelly before whom the hearing was listed on 14th
September 2009. He found that the risk faced by teachers had diminished
since the country guidance in RN was published and so dismissed the
appeal.
- The
appellant was granted permission to appeal to the Court of Appeal. On 10th
June 2010 Sullivan LJ ordered, with consent of the parties, that the
appeal be remitted to the Upper Tribunal:
“… for rehearing of the
issue of the risk of persecution faced by the appellant, as a teacher returning
from the United Kingdom, in the light of (i) the credibility findings made by
the first Immigration Judge, (ii) RN (Returnees) Zimbabwe [2008] UKAIT 83, and (iii) any further objective evidence relevant to this issue.
The finding that the
appellant is a teacher is preserved.”
- And
so the matter now comes before us.
- Before
moving on to deal with the review of the country evidence offered by the
parties that now must be undertaken, something might be said about the
delay in the listing of this appeal which was, as we have said, remitted
to the Upper Tribunal as long ago as 10th June 2010.
- It
was well known in the late summer of 2010 that there was to be a new Zimbabwe country guidance case to be heard. The hearing of that country guidance case,
which was to be published as EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC), commenced on 18th
October 2010 although the hearing was subsequently adjourned and was not
completed until 14th January 2011.
- It
may be that the file in the present case simply lost its way in the
Tribunal’s listing process and, as neither party made any enquiry as to
when the appeal might be listed, the file did not come to receive any
attention. But, in case it may be thought that listing was delayed in the
hope and expectation that the fresh country guidance would be available to
inform the re-making of the decision in this appeal, we address that
approach also. After all, the panel in RN plainly contemplated that
country conditions were likely to change as time moved on after the
elections that had just taken place.
- But,
any expectation that there may be a change in, or a challenge to, the
current country guidance should not, in general, lead to any need to delay
the determination of an appeal, and we are satisfied that was not the case
here, especially given the application made by the appellant at the last
hearing for a lengthy adjournment so that a report could be commissioned
from a country expert.
- Country
guidance stands until it has been replaced or unless it has been found by
the higher courts to be legally flawed. That much has always been clearly
established: see, for example, OM (AA(1) wrong in law) Zimbabwe CG [2006] UKAIT 00077. The fact that there may be a pending country guidance
case or that permission to appeal to the Court of Appeal has been granted
in respect of existing country guidance is not, of itself and in the
absence of any other reason to do otherwise, reason to delay the
determination of current appeals. That position was authoritatively
re-stated recently in respect of the latter proposition by the Court of
Appeal in SG & another v SSHD [2012] EWCA Civ 940. Upholding
the view previously expressed below, Stanley Burnton LJ said, at paragraph
71 of SG:
“In
relation to evidence other than that considered by the Tribunal, and in
particular evidence of subsequent events, I would endorse the test formulated
by Irwin J. The Court should not stay removal pending the decision of the Court
of Appeal unless the claimant has adduced a clear and coherent body of evidence
that the findings of the Tribunal were in error.”
- In
respect of the first proposition, that determination of an appeal should
not be stayed where fresh country guidance is expected to be published in
the reasonably near future, the position is no different. True it is that
recently, a panel of the Upper Tribunal comprising Wilkie J and Upper Tribunal
Judge Gleeson granted a stay on removal in the context of an application
by a Sri Lankan claimant in fresh claim judicial review proceedings on the
basis that removal was not appropriate until fresh country guidance in
respect of Sri Lanka was published. But, as Wilkie J made clear in his
judgment,
the circumstances in that case were “truly unique”. That was because, in
opening submissions before the Tribunal hearing the country guidance case,
which is presently part-heard, counsel for the respondent conceded that
there would have to be an extension of the risk categories.
- That
meant that it was accepted by the Secretary of State that some categories
of claimant not falling within currently identified risk categories would
do so under updated country guidance, although the precise details would
not be known until the fresh country guidance was published.
- Country
guidance is a starting point from which the judge is entitled to depart if
the evidence the parties choose to put forward justifies such departure.
Absent that, like cases should be treated alike, informed by the country
guidance, as is made clear by the Senior President’s Practice Direction:
12.2
A reported determination of the Tribunal, the AIT or the IAT bearing the
letters “CG” shall be treated as an authoritative finding on the country
guidance issue identified in the determination, based upon the evidence before
the members of the Tribunal, the AIT or the IAT that determine the appeal. As a
result, unless it has been expressly superseded or replaced by any later “CG”
determination, or is inconsistent with other authority that is binding on the
Tribunal, such a country guidance case is authoritative in any subsequent
appeal, so far as that appeal:-
(a)
relates to the country guidance issue in question; and
(b)
depends upon the same or similar evidence.
12.3
…
12.4
Because of the principle that like cases should be treated in like
manner, any failure to follow a clear, apparently applicable country guidance
case or to show why it does not apply to the case in question is likely to be
regarded as grounds for appeal on a point of law.
- Thus,
we return to address the question posed at the beginning of this
determination. Is it the position, currently, that a teacher faces a
heightened or enhanced level or risk wherever he or she is located in Zimbabwe? Or is there a “geographical filter” so that the fact
that a person is known to be, or to have been, a teacher, will not give
rise to an enhanced risk, in certain areas of Zimbabwe?
- The
answer to that question will inform our assessment of the risk faced by
this appellant on return to Bulawayo, her home area in Zimbabwe, on the basis that she worked as a teacher before her departure in May 2008 but
otherwise had no particular profile or history of previous persecution or
harassment.
- It
might be added that when she left Zimbabwe in 2008 she left her two young
children with relatives in Bulawayo.
- Time
and country guidance have moved on since the date of the remittal by the
Court of Appeal. As we have observed, the
country guidance in EM has been reinstated by the publication in
January 2013 of CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59 (IAC), which we examine in some detail below. This had
the effect of replacing (and displacing) the country guidance in RN,
making clear not just that the country guidance in EM was
re-established but bringing that guidance up to date to the extent that
the scope of that hearing permitted.
- In making that final observation we recognise that, in that
latter respect, CM has not been designated in its entirety as a
country guidance case. But what CM has to say about the position
in Zimbabwe as at October 2012, though not comprehensive and not
authoritative country guidance, is worthy of note, particularly since that
position was found not to have materially altered since the period under
consideration in EM.
- Current
country guidance represents the starting point for the assessment, once
the facts are settled, as they are here. The Tribunal will then look at
any fresh evidence offered by the parties and will depart from the country
guidance only if the fresh evidence makes it appropriate to do so. For
that to be appropriate, there will be a need for evidence that can
properly be regarded as cogent. As was conformed by Davis LJ in SS at
paragraph 24:
“… decision makers and
tribunal judges should follow applicable country guidance determination unless
"very strong grounds supported by cogent evidence" were adduced to
justify not doing so.”
- Generally,
it will not be necessary to look back at earlier country guidance, where
the more recent guidance is stated specifically to replace, it rather than
to supplement it.
- But
in the present case it is helpful to examine the development of the guidance
relating to teachers in Zimbabwe as country conditions generally have
changed for the better or for the worse. We shall then look at the current
country evidence in the public domain and the fresh evidence upon which
the appellant relies in this appeal.
SM and Others
(MDC – internal flight – risk categories) Zimbabwe CG [2005] UKIAT 00100
- In
SM the Tribunal considered a report by Professor Ranger, who has
given evidence in subsequent country guidance cases concerning Zimbabwe. That report was dated February 2005. The Tribunal summarised his evidence as
follows:
“There had been a falling
away of threats to teachers in 2003 and early 2004. However, two processes
have been going on which once again exposed teachers to threat. The first was
the process of increasing state and party presence within schools. A number of
those trained in youth militia camps were now teaching in schools. A new
union, the Teachers Union of Zimbabwe had been established which was openly
committed to ZANU-PF. Teachers were under pressure to join it. The second
process related to the approach of the March general elections. The Zimbabwe
Human Rights NGO Forum reports have again begun to report violence against
teachers. On 9 January 2005 the Standard reported that scores of teachers
were converging on the Education Ministry Office in Mutare seeking transfers
because they wanted to get out of the rural areas before the March elections
were held
…
There would be special
difficulties for people who wished to return to previous employment. Teachers
had to undergo a period in which enquiries were made by the Ministry about
their past activities.
…
Teachers and civil servants
were assumed to have influenced the votes and there would be a period of
post–election retribution.
…
The disturbing feature was
an increasing network of informers amongst teachers and lecturers.
…
Teachers and trade
unionists probably would have a CIO file.
…
There was a heightened risk
for returnees at present in the light of the assertions by the Zimbabwe government that the decision to return Zimbabweans could be a cover to deploy
elements trained in sabotage and to de-stabilise the country before and during
the elections. There was evidence that those returned would be interrogated.
There was a particular risk for teachers. There was evidence that all
deportees were handed over to the authorities for questioning.”
- On
the basis of this evidence the Tribunal concluded that:
“There does continue to be a risk for teachers with an
actual or perceived political profile of support for the MDC.”
HS (returning asylum
seekers) Zimbabwe CG [2007] UKAIT 00094
- HS was
silent as to the plight of teachers in Zimbabwe in 2007 but that case was
focused upon the risk on return on arrival at the airport and it was not
suggested that teachers, as a class of returnees, faced any such enhanced
risk at that stage.
RN
(Returnees) Zimbabwe CG [2008] UKAIT 00083
- RN
considered country conditions in Zimbabwe at the very height of the
violence blighting that country as the election cycle ground to its
dreadful climax. At paragraph 95:
95. Professor Ranger gives a
similar account as does W66 of the elections in March. It was because the votes
were posted outside each polling station that large scale vote rigging was very
difficult. The best that could be achieved, after weeks of delay, was to
deprive the MDC of the outright victory they claimed to be entitled to in the
Presidential elections so that there would have to be a run off vote:
“But these locally posted
results allowed militia gangs, soldiers and CIO to identify targets. By early
May many press reports were appearing of retaliations. On May 8, (a news
report) described how the worst violence in Zimbabwe’s recent political history
had taken place in Mapondera village. There the posted result showed that 70
people had voted for the MDC and only 10 for ZANU/PF. Militia attacked at
night, telling people that “you made us lose and you have to pay for it … They
pulled out husbands and wives, separated them and killed them on the spot; then
they proceeded to the school where they killed four teachers.
…
Another vivid and
disturbing report had been filed earlier… This described how nurses and
patients were dragged out of Louis Guidotti hospital in Mutoko. They were
addressed by armed men with the same message: “This is your last chance. You
messed up when you voted. Next time you must get it right or you die.”
96. Asked to address the
position of teachers in Zimbabwe, the professor explained that, once again,
they have become targets. This is because many had acted as polling officers
and were accused of favouring the MDC. A report in the state sponsored Herald
newspaper asserted that many teachers who had rigged the poll had fled the
country to escape “the long arm of the law”. The evidence indicates that 2,700
teachers had fled, dozens of schools had closed and 123 teachers were charged
with election fraud offences. On April 30th 2008 the Institute for
War and Peace Studies published a report entitled “Zimbabwe: Teachers fall
victim to rural violence” in which an account was given of teachers being
subjected to “hate speech” and assaults.
- And
at paragraph 130 of RN:
A Zimbabwe Crisis report in
May 2008 said that hundreds of rural schools had been closed because “most
teachers have fled local violence”:
“War veterans and militias
have reportedly unleashed a reign of terror in the countryside, and although
many victims are said to be opposition supporters, ordinary teachers have also
borne the brunt.
…
Teachers have long been
regarded as community leaders and opinion formers, particularly in the rural
areas, and often they have found themselves the target of militias loyal to the
governing party.”
- It
can be seen from these extracts that even in 2005 there was a perceptible
difference in the level of risks to teachers depending upon whether they
were based in a rural area, although that was articulated on the basis
that such teachers were “particularly” at risk rather than there being an
absence of risk in a non-rural area. This evidence, and more, led the
Tribunal in RN to reach the following conclusion in respect of
teachers:
“There is clear evidence
also that teachers in Zimbabwe have, once again, become targets for persecution
in Zimbabwe. This is confirmed by the evidence of Professor Ranger considered
at paragraph 96 of this determination and reinforced by the news reports,
examples of which are given at paragraphs 130 and 148. As many teachers have
fled to avoid retribution, the fact of being a teacher or having been a teacher
in the past again is capable of raising an enhanced risk, whether or not a
person was a polling officer, because when encountered it will not be known
what a particular teacher did or did not do in another area.”
- All
of this is to be considered in the context of the politically motivated
violence being experienced across the country generally. At paragraph 215
and 216 of RN the Tribunal said this:
“What
is clear, however, is that it has been established by overwhelming evidence
that in deploying these militias the regime unleashed against its own citizens
a vicious campaign of violence, murder, destruction, rape and displacement
designed to ensure that there remains of the MDC nothing capable of mounting a
challenge to the continued authority of the ruling party.
This campaign
has been rolled out across the country not by disciplined state forces but by
the loose collection of undisciplined militias who have delivered a quite
astonishingly brutal wave of violence to whole communities thought to bear
responsibility for the "wrong" outcome of the March 2008 poll. It is
precisely because of that that any attempt to target specifically those who
have chosen to involve themselves with the MDC has been abandoned. In our view
there can be no doubt at all from the evidence now before the Tribunal that
those at risk are not simply those who are seen to be supporters of the MDC but
anyone who cannot demonstrate positive support for Zanu-PF or alignment with
the regime.”
- Thus,
as we have observed, the factors that led to the enhanced risk for
teachers, above and beyond the risk to any citizen of Zimbabwe unable, if called upon to do so, to demonstrate loyalty to the regime, were
threefold. First, teachers were perceived to be “opinion formers”,
occupying a position in society such as to provide them with an
opportunity to influence the thinking of young people; second, they were
perceived as more likely to be supporters of the MDC than of Zanu-PF; and
third, many acted as polling officers, sometimes being required to
discharge that role as schools were used as polling stations, so that they
were suspected of seeking to influence the process of voting itself to the
disadvantage of the ruling party.
- It
is important to bear in mind, also, that the enhanced risk to teachers was
associated with the tensions and violence associated with the election
cycle in Zimbabwe which, by the time of EM, varied significantly
from area to area.
- It
is clear that there was a significant change in country conditions
subsequent to the peak of the violence in the lead up to and in the
run-off from the 2008 elections. The power sharing agreement between
Zanu-PF and the MDC was very far from perfect but it brought to the
country a degree of stability.
- That
change in country conditions, recognised to be significant, was reflected
in the country guidance provided by EM. It is not necessary to
examine in detail the country guidance, found in EM. That is
because that guidance has been subsumed within the updated guidance of CM,
having been amended to take account of RT (Zimbabwe) v SSHD [2012] UKSC 38.
- With
regard to the link between elections and violence in Zimbabwe, the panel
in CM agreed with what was said in EM to the effect that it should
not be assumed that there would be a repetition in future elections of the
violence that was seen in 2008. At paragraph 98, having looked at what was
offered to support a contrary view, the Tribunal said this:
“None of these new
materials detracts from the overall thrust of the evidence as a whole,
including that before the Tribunal in EM, that both SADC and South
Africa were anxious to ensure, not only that there would be no repeat of the
2008 election violence in Zimbabwe, but also that future elections would be
regarded internationally as legitimate…”
- This
is how that restatement of the EM country guidance was expressed in
the head note:
The only change to the EM
Country Guidance that it is necessary to make as regards the position as at
the end of January 2011 arises from the judgments in RT
(Zimbabwe) [2012] UKSC 38. The EM Country Guidance is, accordingly,
re-stated as follows (with the change underlined in paragraph (5) below):
(1)
As a general matter, there is significantly less politically motivated
violence in Zimbabwe, compared with the situation considered by the AIT in RN.
In particular, the evidence does not show that, as a general matter, the return
of a failed asylum seeker from the United Kingdom, having no significant MDC
profile, would result in that person facing a real risk of having to
demonstrate loyalty to the ZANU-PF.
(2)
The position is, however, likely to be otherwise in the case of a person
without ZANU-PF connections, returning from the United Kingdom after a
significant absence to a rural area of Zimbabwe, other than Matabeleland North
or Matabeleland South. Such a person may well find it difficult to avoid
adverse attention, amounting to serious ill-treatment, from ZANU-PF authority
figures and those they control. The adverse attention may well involve a
requirement to demonstrate loyalty to ZANU-PF, with the prospect of serious
harm in the event of failure. Persons who have shown themselves not to be
favourably disposed to ZANU-PF are entitled to international protection,
whether or not they could and would do whatever might be necessary to
demonstrate such loyalty (RT (Zimbabwe)).
(3)
The situation is not uniform across the relevant rural areas and there may be
reasons why a particular individual, although at first sight appearing to fall
within the category described in the preceding paragraph, in reality does not
do so. For example, the evidence might disclose that, in the home village,
ZANU-PF power structures or other means of coercion are weak or absent.
(4)
In general, a returnee from the United Kingdom to rural Matabeleland North or
Matabeleland South is highly unlikely to face significant difficulty from
ZANU-PF elements, including the security forces, even if the returnee is a MDC
member or supporter. A person may, however, be able to show that his or her
village or area is one that, unusually, is under the sway of a ZANU-PF chief,
or the like.
(5) A
returnee to Harare will in general face no significant difficulties, if going
to a low-density or medium-density area. Whilst the socio-economic situation in
high-density areas is more challenging, in general a person without ZANU-PF
connections will not face significant problems there (including a “loyalty
test”), unless he or she has a significant MDC profile, which might cause him
or her to feature on a list of those targeted for harassment, or would
otherwise engage in political activities likely to attract the adverse
attention of ZANU-PF, or would be reasonably likely to engage in such
activities, but for a fear of thereby coming to the adverse attention of
ZANU-PF.
(6)
A returnee to Bulawayo will in general not suffer the adverse attention of
ZANU-PF, including the security forces, even if he or she has a significant MDC
profile.
(7)
The issue of what is a person’s home for the purposes of internal relocation
is to be decided as a matter of fact and is not necessarily to be determined by
reference to the place a person from Zimbabwe regards as his or her rural
homeland. As a general matter, it is unlikely that a person with a well-founded
fear of persecution in a major urban centre such as Harare will have a viable
internal relocation alternative to a rural area in the Eastern provinces.
Relocation to Matabeleland (including Bulawayo) may be negated by
discrimination, where the returnee is Shona.
(8) Internal
relocation from a rural area to Harare or (subject to what we have just said)
Bulawayo is, in general, more realistic; but the socio-economic circumstances
in which persons are reasonably likely to find themselves will need to be
considered, in order to determine whether it would be unreasonable or unduly
harsh to expect them to relocate.
(9) The
economy of Zimbabwe has markedly improved since the period considered in RN.
The replacement of the Zimbabwean currency by the US dollar and the South
African rand has ended the recent hyperinflation. The availability of food and
other goods in shops has likewise improved, as has the availability of
utilities in Harare. Although these improvements are not being felt by
everyone, with 15% of the population still requiring food aid, there has not
been any deterioration in the humanitarian situation since late 2008. Zimbabwe
has a large informal economy, ranging from street traders to home-based
enterprises, which (depending on the circumstances) returnees may be expected
to enter.
(10) As
was the position in RN, those who are or have been teachers require to
have their cases determined on the basis that this fact places them in an
enhanced or heightened risk category, the significance of which will need to be
assessed on an individual basis.
(11)
In certain cases, persons found to be seriously lacking in credibility
may properly be found as a result to have failed to show a reasonable
likelihood (a) that they would not, in fact, be regarded, on return, as aligned
with ZANU-PF and/or (b) that they would be returning to a socio-economic milieu
in which problems with ZANU-PF will arise. This important point was identified
in RN … and remains valid.
- The
Tribunal in CM then went on consider whether the post January 2011
evidence of country conditions, which was before it, required a departure
from the EM country guidance, and to make some observations about that
more recent evidence:
In the course of deciding
CM’s appeal, the present Tribunal has made an assessment of certain general
matters regarding Zimbabwe as at October 2012. As a result, the
following country information may be of assistance to decision-makers and
judges. It is, however, not Country Guidance within the scope of
Practice Direction 12 and is based on evidence which neither party claimed to
be comprehensive:
(a) The picture presented by
the fresh evidence as to the general position of politically motivated violence
in Zimbabwe as at October 2012 does not differ in any material respect from the
Country Guidance in EM.
(b) Elections are due to be
held in 2013; but it is unclear when.
(c) In the light of the
evidence regarding the activities of Chipangano, judicial-fact finders may need
to pay particular regard to whether a person, who is reasonably likely to go to
Mbare or a neighbouring high density area of Harare, will come to the adverse
attention of that group; in particular, if he or she is reasonably likely to
have to find employment of a kind that Chipangano seeks to control or otherwise
exploit for economic, rather than political, reasons.
(d) The fresh evidence
regarding the position at the point of return does not indicate any increase in
risk since the Country Guidance was given in HS (returning asylum seekers) Zimbabwe CG [2007] UKAIT 00094. On the contrary, the available evidence as to
the treatment of those who have been returned to Harare Airport since 2007 and
the absence of any reliable evidence of risk there means that there is no
justification for extending the scope of who might be regarded by the CIO as an
MDC activist.
- The
question that presents itself is why the Tribunal in EM concluded
that there was no adverse consequence of being perceived as a supporter of
or even an activist on behalf of the MDC in certain areas, including
Bulawayo, which is the city with which we are concerned in this appeal as
that is the appellant’s home area, yet still expressed the risk for
teachers to be a heightened one generally, with no geographical based
qualification. The answer may be found in the fact that the question of
whether there was any real risk for an individual on the basis of him or
her being or having been a teacher was to be assessed on a case by case
basis. That means, of course, that all the circumstances are to be taken
into account and that would include the intended destination for return.
- It
is also relevant that, in finding a heighted risk for teachers, the
Tribunal in EM was not invited to carry out a geographically based
analysis of the evidence of harassment and persecution, recording that:
“In the present appeals,
the respondent acknowledges that teachers remain in a category where there is a
heightened or enhanced risk. That is plainly right. Various news reports
submitted by the appellants demonstrate the fact that teachers can face
problems from ZANU-PF.”
The Tribunal went on to examine a number of
examples of such difficulties experienced by teachers, none of which were said
specifically to have taken place in the areas where the Tribunal found that
being active in support of the MDC would be unproblematic and concluded that:
“Being in a heightened risk
category is not, however, to be equated without more as being at real risk of
persecution. There needs to be an individual assessment of the circumstances (TM
(Zimbabwe) [2010] EWCA Civ 916).”
- We
now turn to consider the more recent evidence relied upon by Mr Hussein in
support of his submission that teachers are at heightened risk throughout
Zimbabwe and not just in those areas where being perceived to be a
supporter of the MDC or, more acutely, where being perceived simply as
someone who is not a supporter of or otherwise aligned to Zanu-PF or the
regime controlled by the party is something that attracts adverse
treatment.
- That
evidence is found in a bundle prepared by his instructing solicitors
specifically for the hearing which, it will be recalled, was focussed on
this narrow issue of the risk to teachers in Zimbabwe today.
- We
start our consideration of this material by looking at Dr Aguilar’s
report.
- As
we have observed, this appellant has family connections in Bulawayo and it was to the family home in Bulawayo that she returned immediately before
her departure from Zimbabwe. It is reasonable to proceed on the basis that
she would return there now and so we assess the level of risk she may face
on that basis. Her evidence to us was that the family home is presently
unoccupied but there is nothing to indicate that it does not remain
available.
- In
the light of the current country guidance, if it were not for the fact
that some years ago this appellant worked as a part time primary school
teacher in a rural area in Matabeleland North about three hours drive away
from Bulawayo, any assertion of risk would be unarguable. But Mr Hussein
submits that, as a teacher, the level of risk is enhanced and needs to be
assessed on the specific basis of her individual profile.
- The
analysis of that risk must be informed by the reasons why teachers have
attracted an enhanced level of risk. For example, if the risk is enhanced
because being a teacher brings with it a perception that a person is
likely to be a supporter of the MDC then, if no consequence flows from
such perception, there is no heightened level of risk on that account.
- It
is plain from CM that in Bulawayo no real risk generally attaches
to demonstrating overt support for the MDC, even for someone with a
“significant profile” in that respect. Similarly, if, as the Tribunal in CM
were satisfied is the case, Zanu-PF and its supporters have significantly
less purchase in Bulawayo, then it is hard to see how the perception,
entirely erroneous in this particular case, that as a teacher the
appellant might have sought to influence young people to support the MDC
when working as a primary school teacher some years ago, can give rise to
any real risk.
- Support
for that view may be found in the fact that, although this appeal was
remitted for reconsideration specifically upon the issue of risk on return
as a failed asylum seeker who former worked as a teacher in Zimbabwe and
was identified as potentially suitable for giving country guidance on the
position of teachers, it is striking that there is no evidence at all of
any recent difficulty experienced by any teacher, even those presently
working as such, in the Bulawayo area.
- Dr
Aguilar sets out her academic and career history at the beginning of the
report and it is sufficient to say that she has a long-standing interest
in Zimbabwean affairs, although it is not clear when she last visited the
country. She has written many reports and is qualified to offer an expert
opinion.
- Having
said that, there are real difficulties with her report, not least that it
is based upon an unqualified acceptance of the appellant’s factual account
of being associated with the MDC in Zimbabwe and of having been attacked
by soldiers at the school where she and her husband worked before her
husband was taken away and killed by the authorities. All of that, as we
have seen, was rejected by the judge as untrue and those findings have
been preserved by the Court of Appeal in remitting the appeal to the Upper
Tribunal. Yet Dr Aguilar has written her report on the basis that this
account is true.
- That
much might not, though, be such as to detract from the real purpose of
commissioning a report from this expert because that was to do with the
general risk to teachers, so that an incorrect approach to the credibility
of this particular appellant would not, in itself, undermine any sound
expert view expressed concerning teachers generally.
- Having
made the general observation about teachers, true in Zimbabwe as anywhere
else, that as individuals they will be well known within their
communities, Dr Aguilar says that in Zimbabwe, as public servants, there
is an expectation that teachers will serve the government, so that
speaking against the government or the ruling party – Zanu-PF – means that
the teacher will be “accused of imputed political beliefs in opposition to
the Zanu PF”. She continues:
“Once a teacher is believed
to be opposed to the Zanu-PF government that teacher is likely to suffer
persecution such as harassment, being monitored and spied upon by Zanu-PF
supporters, forced to demonstrate support for Zanu-PF such as marching,
chanting or attending rallies. Some have been arrested and thousands have fled
in fear of persecution.”
That may well have been the case at the
height of the violence in 2008, but it takes no account at all of the views
expressed by the Tribunal in EM and CM or the significant
improvement in that regard to the country conditions so far as they relate to
the risk in certain areas of the country, including Bulawayo, on account of
professed support for or association with the MDC.
- Much
of Dr Aguilar’s conclusions specific to this particular appellant must be
discounted because they are predicated upon the appellant having a profile
that she has been found not to possess. Thus, Dr Aguilar asserts that the
appellant may be detained at the airport for questioning by the CIO as her
name may be linked with that of her late husband who would be known to be
an MDC activist. That is simply not sustainable. There is no reason at all
to suppose that the appellant would attract any adverse interest as she
passes through the airport on return to Zimbabwe, either because of any
perceived personal profile or because she may be travelling on documents
other than a passport.
- Similarly,
the assertion by Dr Aguilar that the appellant would then be “contacted
again by Zanu-PF in her home area after arrival” is one that takes no
account at all of the country guidance to the effect that, in Bulawayo,
that is not something that is generally likely to happen.
- At
paragraph 5.2 of her report Dr Aguilar says this:
“In the present situation
in Zimbabwe there is ample recent evidence, as recent as February 2013, that
teachers continue to be persecuted. In addition there is recent evidence in
2013 that there is real fear of violence with fresh elections suggested as soon
as July 2013”
- Some
of the material offered by Dr Aguilar in support of her view is very old,
some as old as 2002. The following postdates the publication of EM in
March 2011:
- A
printout from the website of the Putz teachers’ union website on 17th
February 2013 described a “raid” by two “overzealous police officers” on
the PTUZ offices in Manicaland. There were no arrests reported.
- A
news report dated 7th February 2013 concerning concerns
expressed by Education minister David Coltard about poor pass rates in
examinations being achieved by schools that were suffering from
underfunding and a lack of qualified teachers, many of whom “had left the
country for greener pastures due to poor salaries”.
- A
news report dated 7th January 2013 about threatened strike
action by teachers in Zimbabwe because of poor salaries, union leaders
making confident assertions as to the government having resources from
the diamond mines to fund significant increases in teachers’ pay.
- A
News Day report dated 12th December 2012. This makes two
points after referring to the violence that had led to 70,000 teachers
having left Zimbabwe since 2000. First it is said that:
“… the education sector was
under siege as violence was rearing its ugly head again ahead of possible
elections sometime next year.”
But that evidence of violence is not
identified or expanded upon with no examples offered. Second:
“Their involvement as
polling officers during elections was also cited as another factor that
contributed to their victimisation.”
But it is noticeable that, although offering
that, Dr Aguilar does not make any reference to the news reports also
available, confirming that the Education Minister has banned teachers from
acting as polling officers, either in the imminent referendum vote or in the
forthcoming elections. This was said to be linked to his concern as to falling
standards in schools and the need to avoid anything that would “disturb the
learning process”.
- Next,
there is an Education International report dated 7th January
2013 concerned only with the issue of the level of teachers’ salaries and
the threat of strike action.
- Complaints
that flea market stall holders in Chitungwiza in Mashonaland might lose
their stalls to Zanu-PF supporters as elections approach, reported in the
Zimbabwean Standard in February 2013, do not really illuminate the
assessment of risk for teachers in areas like Bulawayo.
- Nor
do reports in January of this year that in Midlands and Mashonaland
Central districts there have been incidents of corruption involving
officials demanding bribes in exchange for allocation of teaching jobs.
- Next
is an extract from a report from UHHCR dated “August 2012”. This looks
back at the pre 2008 violence and appears to draw on an OGN from August
2012 in stating:
“… since President Robert
Mugabe announced elections would take place in 2011 teachers, especially in
rural areas, have been the victims of political violence and extortion by war
veterans and Zanu-PF supporters…”, although the very few examples of that given
are, indeed, all in rural areas.”
- Similarly,
a report said to be a “Relief Web reprint of 18 December 2012 report from
“the Zimbabwean” speaks of the “resurfacing of youth militia bases in
some rural schools”.
- Next,
there is an unattributed report entitled “Zimbabwe: Zanu-PF Re-Calls
Green Bombers”. This reports that each of the 10 provincial governors had
been tasked with recruiting 200 youths to work in the prison service and
it was feared that those jobs would go to Zanu-PF supporters.
- Finally,
there is a lengthy report from Freedom House in 2012 which notes that:
“since 2009, Zimbabwe has experienced a period of relative calm which may prove to be but a brief
respite for the country”
because of forthcoming elections. But the
report offers nothing to contradict or cast doubt upon the conclusions reached
in CM concerning the geographical context of risk arising from political
profile or perceived profile.
- Having
set out the historical context of difficulties for teachers, Dr Aguilar
asserts that the forthcoming elections, expected in the summer of 2013,
are bringing with them fresh evidence of violence against teachers. But
there is no evidence of such violence occurring in areas where an open
display of support for the MDC does not bring to those involved the
ill-treatment or harassment experienced elsewhere at the hands of Zanu-PF
supporters or the other instruments of that party.
- For
those reasons we are satisfied that Dr Aguilar’s report provides no
support for the assertion that there is a heightened risk for teachers in
an area where, in general, no adverse consequence flows from actual or
imputed support for the MDC.
- Next
in the appellant’s bundle is The Operational Guidance Note issued by UKBA
recently, in February 2013. The position of teachers in Zimbabwe is considered at the section commencing at paragraph 3.7. Importantly, the OGN,
reflecting the current country guidance, recognised that assessment of
risk on return, generally, “will very much depend upon the place to which
he or she would return”:
“In general, those
returning to MDC dominated rural areas of Matabeleland North or Matabeleland
South would generally be highly unlikely to face significant difficulty from
Zanu-PF elements, including the security forces”.
Recognising that the same could not be said
of other rural areas, the OGN assets also that, even for those faced with such
a primary destination, internal relocation to Harare or Bulawayo was possible
and should not be unduly harsh. The section of the OGN dealing specifically
with teachers recites details of difficulties experienced by teachers that are
either now historic, predating the current country guidance or which relate to
incidents in rural areas outside the scope of the focus of this determination. The
conclusion in respect of what has been previously accepted to be a generally
heightened risk for teachers is set out at paragraph 3.7.10:
… The heightened risks
associated with being a teacher should be considered alongside the individual
circumstances of each case, including their previous employment, any adverse
interest by the authorities and an assessment of the risk to them on return to Zimbabwe whether or not they seek to resume their career as a teacher…”
We would add that “individual circumstances”
include inescapably and importantly the destination on return. Thus, there is
nothing in the OGN that provides support for any claimed heightened risk in the
particular areas with which we are concerned where open support for the MDC
does not attract adverse consequences.
- The
same can be said of the other reports contained within the bundle, a
detailed examination of which explains why Mr Hussein was unable to refer
us to anything that provided support for the general assertion that
teachers will experience an enhanced risk of coming to harm irrespective
of location.
- Drawing
all of this together, we are satisfied that an examination of all the
evidence relating to risks faced by teachers that the parties have been
able to put before us, considered in the light of the current country
guidance provided by CM, leads to only one rational conclusion: The
“geographical filter” identified in EM and confirmed more recently
in CM is equally applicable to teachers. Thus, a teacher will not
face a heightened risk on return to Zimbabwe, on account of his or her
occupation or former occupation alone, if his or her destination of return
is (a) rural Matabeleland North or Matabeleland South, where a returnee
will in general not face a real risk of harm from Zanu-PF elements,
including the security forces, even if he or she is a MDC member or
supporter; or (b) Bulawayo, where the returnee will in
general not face such a risk, even if he or she has a significant MDC
profile
- That
is sufficient to dispose of the protection claim. There is no reason at
all to suppose, given her present circumstances, that the appellant will
seek to re-establish herself anywhere other than in Bulawayo. The
appellant also pursues a claim under article 8 of the ECHR, although that
can be dealt with quite briefly. As Mr Hussein conceded at the beginning
of the hearing, the appellant “does not wish to pursue the article 8 claim
with any vigour”.
- It
is not hard to see why the appellant takes that view, nor why Mr Hussein,
quite realistically, does not suggest that the article 8 claim discloses
any real cogency. We accept that the appellant has a child, born in the United Kingdom on 10th June 2010 and so aged 2 years and 10 months. But we
reject her late assertion that this child may be a British Citizen. The
father, who lives in a different city than does the appellant, has
contributed nothing at all in support of the appellant’s account of the
child and we simply do not accept that what she says is true. The
appellant has had the benefit of experienced solicitors throughout and it
is simply not credible that, if the child were indeed a British citizen in
regular or even sporadic contact with a British father who was intent on
maintaining contact or even wished to commence contact, that there would
be nothing to support the appellant’s bare assertion to that effect.
- Thus
the best interests of this very young child are to be with her mother, and
her mother’s place is in her country of nationality where we are satisfied
she will be able to live in the family home in Bulawayo with her other two
children from whom she has been separated since 2008.
- There
is no continuing relationship with the father of her child and so there
will be no interference with family life. Nor is there any evidence of any
significant private life in the United Kingdom. Therefore, on the evidence
presented, there is no engagement of article 8, even recognising that the
threshold of engagement is not a particularly high one.
- The
appellant told us that she would not work again as a teacher because it
had been too long since she had done so and she would need to retrain. But
she has also worked in Zimbabwe in a shop and will have access to the
informal economy in Zimbabwe in common with many others. She is plainly a
resourceful woman who does have family assistance to call upon, even if
the family has become geographically dislocated. Although she will, like
many citizens of Zimbabwe, find life challenging, we do not accept that
she will face destitution on return or be otherwise unable to provide for
her children, nor that whatever arrangements are in place to provide for
the continuing education of her younger child now in Zimbabwe will be interrupted as a consequence of her return.
- For
the sake of completeness we should record that Mr Hussein did not advance
any submission based upon the appellant’s health or need for treatment for
her HIV status that the appeal should succeed on the basis of an
infringement of the appellant’s human rights. There is nothing before us
to suggest otherwise and so we need say no more about that.
76. Finally, we should record
that, although at the date of the hearing this appeal had not been formally
categorised as a country guidance case, it had in the past been identified, as
the parties are aware, as a potential vehicle to provide country guidance on
the current position relating to teachers in Zimbabwe ad the expert report had
been commissioned on that basis.
Summary of Decision:
- The
appeal is dismissed on all grounds.
Signed
Upper Tribunal Judge Southern
Date: 28th March 2013
SCHEDULE OF DOCUMENTARY EVIDENCE
|
Date
|
|
|
Undated but
received by fax on 11/03/2013
|
Country Expert
Report by Dr Laurel Birch Aguilar
|
|
28/02/2013
|
The Herald: Zimbabwe: Coltart Bars Teachers from Referendum.
|
|
17/08/2012
|
Zimbabwe Peace Project Report; July 2012
|
|
07/08/2012
|
UKBA Operational
Guidance Note; August 2012
|
|
13/07/2012
|
UKBA COI Report;
July 2012
|
|
18/04/2012
|
Voice of America News Report: Zimbabwe President Wants Elections to End Coalition Government.
|
|
13/02/2012
|
ZimOnline Report:
Half of Zim teachers are victims of violence
|
|
19/01/2012
|
SW Radio Africa Report: Zanu PF violence intensifies in Mbare
|
|
23/06/2011
|
SW Radio Africa
Report: Union says militia & CIOs harassing striking teachers.
|
|
27/03/2011
|
Voice of America News Report: Zimbabwe Tensions Rise Before Regional Meeting.
|
|
22/03/2011
|
Voice of America News Report: Zimbabwe Group Says Political Violence Back to Levels Seen in Early
2009.
|
|
18/03/2011
|
ZimOnline Report:
Zim soldiers rob, rape women.
|
|
05/11/2010
|
SW Radio Africa Report: Four teachers severely beaten by Zanu PF youths in Masvingo.
|
|
03/08/2010
|
Radio Africa Report: Teachers the target of violence as country slides into election mode.
|
