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11 September, 2019

GC (Zimbabwe) v Secretary of State for the Home Department [2019] CSOH 67

Case comment by Michael Way, advocate

 

Lord Bannatyne refuses judicial review challenge to homosexuality risk in Zimbabwe

Facts

The petitioner was a national of the Zimbabwe. He sought judicial review of the Home Office’s decision to refuse to accept his further submissions as a fresh claim for asylum, under Immigration Rule 353.

The petitioner had entered the UK in April 2016 and made an asylum claim. His claim was refused in September 2017 and his appeal to the First-tier Tribunal was dismissed in May 2018. He was refused permission to appeal by the First-tier Tribunal and Upper Tribunal. Having become ‘appeal rights exhausted’, the petitioner submitted further asylum submissions in February 2019 in terms of Immigration Rule 353.

Issues

The petitioner is an openly gay man. The applicable country guidance case (LZ (Homosexuals) Zimbabwe CG [2011] UKUT 00487 [IAC]) accepts that there is some risk to homosexuals in Zimbabwe, but suggests that there is not a general risk of persecution. Although not decisive, being openly gay might increase risk. Home Office information accepts that being gay in Zimbabwe confers a level a risk but not one, at a general level, that is sufficiently serious to amount to persecution – each case would have to be judged on its particular facts.

The petitioner’s further submissions (and Counsel’s submissions in this petition) sought to link a recent spike in violence and unrest in Zimbabwe to the level of risk that the petitioner might face. This situation would place any vulnerable group at a heightened risk, because the authorities would be less able to offer protection and homophobes might be able to attack gay people with relative impunity. Taking the new evidence as a whole, the decision was said to fail in three ways: (1) to take account of relevant matters; (2) to be supported by adequate reasons; and (3) to demonstrate anxious scrutiny.

The respondent’s position was that the petitioner was seeking to draw a line between two unconnected matters: the spike in violence and the general treatment of homosexuals. The Country Guidance noted that the Zimbabwean authorities do not provide protection to the gay community under normal circumstances. A spike in violence was accordingly irrelevant. In any event the information proffered in the further submissions was general in nature and had been adequately assessed (and dismissed) in the decision letter.

The questions for the Court were therefore:

  1. Is there a realistic prospect of an immigration judge, applying the rule of anxious scrutiny, thinking that the petitioner will be exposed to a real risk of persecution on return to Zimbabwe?
  2. Has the decision maker erred in law by failing to take relevant matters into account or by giving inadequate reasons?

Decision

Lord Bannatyne refused the petition (at [69]). His Lordship concluded that there was no realistic prospect of success in front of an immigration judge; the claim was bound to fail (at [60]). His Lordship also considered that there was no error of law in respect of failing to give adequate reasons (at [61]-[64]) or consider relevant matters (at [65]-[66]).

On the first question, Lord Bannatyne accepted the “short and sharp point” made by the respondent at [38] with respect to the general lack of protection from the Zimbabwean authorities. A spike in violence made no difference where there was no protection in the first place. This submission “wholly undermined” the core of the petitioner’s case (at [53]).

To the second question, Lord Bannatyne again preferred the respondent’s submissions. Fundamentally, the reasoning was adequate to entitle the Secretary of State to have arrived at her conclusion. The well-established two stage process for considering fresh claims had been laid out in the decision letter. This process appeared to have been followed. Accordingly there was no error of law.

Analysis

The consideration of asylum and humanitarian protection claims always requires the most anxious of scrutiny by any decision maker. That said, a judicial review challenge to the adequacy of reasons and relevancy of considerations is often hard for a petitioner to successfully make out. This case was no different.

While some might not agree with the substance and implications of the applicable Country Guidance case law, a Tribunal would be bound to apply it unless there are compelling reasons not to. The logic of the respondent’s argument on the first issue was accordingly unassailable.

Representation

Ampersand’s Jamie Gardiner appeared for the respondent.

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