Reported Case

Decision on cessation and Article 3 claims in Zimbabwe could assist future appeals after important judgment handed down in PS (cessation principles) Zimbabwe [2021] UKUT 283 (IAC) (21 September 2021).


Facts

PS is a citizen of Zimbabwe who was granted refugee status on 13 February 2008 based on her involvement as an MDC activist. PS was convicted of manslaughter by gross negligence of her infant child and sentenced to 8 years’ imprisonment. The SSHD found that PS was a danger to the community, and thus, issued an s.72 certificate. This issuing initiated PS’s deportation proceedings, revoked her refugee status, and refused her asylum and human rights claims. On appeal, the First-tier Tribunal (FtT) maintained s.72 and further refused her asylum and human rights claims. The Upper Tribunal (UT) rejected PS’s complaints about the FtT’s approach but found errors of law in the approach to cessation and human rights. The UT decided to set the FtT’s decision aside and it was decided that the decision will be remade by a panel of the UT on the following two issues:

• Whether the SSHD had displaced the burden of showing how PS was initially recognised as a refugee, and thus, considering the legality of ceasing her refugee status; and


• Whether deportation would breach Article 3 ECHR.

The UT found that PS suffers from persistent complex bereavement disorder and moderate depression and is susceptible to psychotic episodes. It was further deemed that PS’s risk of suicide would escalate with the stressors of deportation. Consequently, SSHD accepted that the facts asserted in a client’s initial claim are to be taken at their highest when considering cessation.

The UT found unreliable evidence regarding absent family members in Zimbabwe. Even if evidence was available, it is unlikely that PS’s family members would be able to provide her with meaningful support as “the average Zimbabwean finds daily life extremely challenging even without the burden of caring for a family member”. PS’s length of absence, criminal conviction, and mental health would be considered a source of shame.


Cessation

The Tribunal concluded there has not “been significant and durable change regarding those at risk from the ZANU-PF state apparatus” as “[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 have meant that PS would be unable to demonstrate ZANU PF loyalty in Masvingo [82]. The SSHD’s submission of PS’s absence of risk in her home area due to family support was unhesitatingly rejected [83-6]. It was concluded in SSHD (Minimum standards for granting refugee status or subsidiary protection status - Criteria for assessment - Judgment) [2021] EUECJ C-255/19 (20 January 2021), that family members’ social and financial support is insufficient and scarce of what constitutes 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 PS [94].

The UT acknowledged the general political and humanitarian changes in Zimbabwe, as well as for those at risk due to lack thereof or political involvement [88].


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 risk that, if removed, PS would suffer from a rapid and irreversible decline in health. 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. This could prove to be a vital judgment, as the findings on the country situation will be beneficial many people currently resisting removal to Zimbabwe. The judgment will also help lawyers represent clients where the SSHD is aiming to revoke refugee status.



Representation

Our legal team: Haroon Karimdad, Ruth Karimatsenga, and Bahar Ata instructing Victoria Laughton and Harriet Short of One Pump Court Chambers.

 

Find full details of this case on Bailii’s website here.