[2023] UKUT 00164 (IAC)

Ground 2 has not been clearly pleaded but sufficiently raises two key points we address in turn.

First, the FTT has not given adequate reasons for finding that the circumstances which justified the grant of refugee status have ceased to exist and there are no other circumstances which would now give rise to a well-founded fear of persecution. Ms Ahmed reminded us of the guidance on the approach to cessation in PS (Cessation principles) Zimbabwe [2021] UKUT 00283 (IAC); [2022] Imm AR 49 and SSHD v JS (Uganda) [2019] EWCA Civ 1670; [2020] Imm AR 258. The latter makes it clear at [159] and [174] that the word “circumstances” in Art 1C(5) i.e., “the circumstances in connection with which he has been recognised as a refugee have ceased to exist”, is broad and general. It covers both relationship and risk for derivative refugees.

In our view the FTT has not engaged with the specific circumstances of the appellant’s mother which led to the appellant’s refugee status in line with her: she was an MDC member and accused of being a spy for the UK. The plight for MDC members in Zimbabwe has changed over time as summarised at [28-31] and [75] of PS (supra), albeit care must be taken when considering the durability and significance of that change – see [81] and [88-95] of PS. Nonetheless, the applicable country guidance changed with CM (EM country guidance; disclosure) Zimbabwe [2013] UKUT 59 (IAC): MDC members are considered in general to not be at risk in high density areas of Harare unless they have a significant MDC profile. The FTT did not address the appellant’s / his mother’s area of origin in Zimbabwe (accepted to be a high-density area of Harare but not a rural area) or the significance of her profile. Instead, the FTT assumed risk based upon a significant absence at [60] without addressing the proposed area of return and / or the significance of the mother’s profile, as required by CM and the CPIN on Zimbabwe at 2.4.20 (quoted by the FTT at [59]). Such an approach does not follow the guidance at headnote 2 of PS.

Second, ground 2 asserts that FTT has not provided adequate reasons in support of the conclusion that the appellant was involved in the Zanu-PF youth. This is a point that was clearly articulated in the ASA, the appellant’s statement and the evidence from those treating him for his mental health. The OASys also records the appellant’s claims in this regard. Notwithstanding this, the respondent’s review entirely omits any reference to this. It has not been suggested that this was addressed by the respondent’s representative before the FTT. It is within this context that the FTT’s comment at [56], that there was no sensible challenge to that claim, must be viewed.

The failure of the respondent to identify this issue in the review, and therefore identify that it was a principal controversial issue in the appeal, puts the respondent in real difficulty in seeking to advance it in the context of this appeal. As observed in Lata (FtT: principal controversial issues) [2023] UKUT 163 (IAC) at [28] and [33], a FTT decision cannot be alleged to contain an error of law on the basis that there was failure to take account of a point that was never raised for consideration as an issue in the appeal, unless the point is Robinson obvious. Since we have already concluded that there was an error of law in relation to the first point raised, there is no need to address this issue in any event. We would, however, simply observe in relation to whether this point provides the appellant with a well-founded fear that the appellant claims to have fled in 2004 when he was 14, nearly 20 years ago. Although at [60] the FTT referred to objective material that the appellant is at risk in Zimbabwe by reason of his lengthy absence and fleeing the Zanu-PF youth, the FTT has not cited any material to support the well-foundedness of such fears. The paragraph before refers to those who return after a significant absence to a rural area, not as in this appellant’s case, to Harare.

We are satisfied that the respondent has made out ground 2.