The Court of Appeal has yet again overturned the Asylum and Immigration Tribunal’s attempt definitively to establish whether a failed asylum seeker is at risk of ill-treatment by the Zimbabwe secret service at Harare airport following a forced removal there.

That’s a sentence and a half. But it’s a case and a half too, with a long and convoluted history. It was first decided back in July 2005. The appeal was allowed by an immigration judge on the basis that the asylum seeker concerned was making his whole story up but that he would still be suspected of being a political opponent if removed to Zimbabwe, which would lead to his being mistreated and tortured, which in turn meant he could not be removed. The Home Office appealed, which is when the case was turned into a Country Guideline case. This means that, whatever the outcome, it would be followed in all similar future cases.

This appeal was decided by the Deputy President of the Asylum and Immigration Tribunal (AIT) in October 2005 in a case called AA (Zimbabwe) v SSHD [2005] UKAIT 00144. The Home Office appeal was dismissed, so they appealed again, this time meaning the case went up to the Court of Appeal. The case of AA was joined with another case, called LK. Letters are used instead of names in order to preserve the anonymity of the asylum seekers to avoid them feeling repercussions of any sort when their cases get reported on the internet. The Court of Appeal allowed the Home Office appeal in a case now called AA v SSHD and LK v SSHD [2006] EWCA Civ 401. However, the Court of Appeal did not reach a final decision, they merely sent it back to the AIT for them to hear the case again.

In a decision now back to being called AA (Zimbabwe) v SSHD [2006] UKAIT 00061, the President of the AIT allowed the Home Office appeal. However, unsurprisingly, the asylum seekers weren’t too happy about this and decided to appeal to the Court of Appeal. It is this decision that has just been reached, called AA (Zimbabwe) v SSHD [2007] EWCA Civ 149. In it, the Court of Appeal find that the AIT had failed to consider the importance of evidence given by former Zimbabwean secret service agents that violence was relatively commonplace in airport interrogations. The Court has again sent the case back to the AIT for it to be reconsidered yet again.

The case is a very good example of the problems the AIT creates for itself in trying to lay down supposedly definitive factual guidance on a given country situation, i.e. a Country Guideline case. The volume and quality of the evidence considered by the AIT in the different incarnations of the case were both very considerable. This makes it very hard for the AIT to deal properly with absolutely all the material before it. Yet the Court of Appeal has said in the past that if the AIT is going to establish a Country Guideline case, it must do so only after a comprehensive examination of all the available evidence. This was made abundantly clear by Lord Justice Laws in the case of S and Others v SSHD [2002] EWCA Civ 539 and is discussed at some length in the Immigration Advisory Service report Country Guideline Cases: Benign and Practical?. I do feel sorry for the AIT, as they have been receiving pretty mixed messages from the Court of Appeal. The Court has encouraging the AIT to follow this course, most notably in the cases of Shirazi v SSHD [2003] EWCA Civ 1562 and, perhaps a little reluctantly, in S and Others. However, in this most recent case (see paragraph 37 especially) and in S and Others the Court has imposed standards of rigour that it is proving impossible to meet in practise.

It will be interesting to see where the AIT goes from here both in this specific case, on which many, many other Zimbabwean claims depend, and on the whole issue of factual precedents. Despite the problems, it seems highly unlikely that the Country Guideline system would be abandonned. The AIT almost certainly takes the view that the additional control over individual immigration judges afforded by the system of factual precedents makes these occasional high profile set-backs worthwhile.

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