Court of Appeal allows appeal against Zimbabwe Country Guidance

In JG & CM (Zimbabwe), the Court of Appeal has allowed the appeal against the Zimbabwe Country Guidance, issued by the Upper Tribunal in EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98(IAC). That Country Guidance had withdrawn protection from a substantial proportion of Zimbabwean claimants. It therefore affects potentially thousands of Zimbabweans seeking asylum in the UK. The disclosure issues that arose in the case were also unprecedented in a Country Guidance appeal. Mark Henderson & Laura Dubinsky represented both of the appellants in the case.


Alasdair Mackenzie was junior counsel in the Upper Tribunal and in the first stages of the Court of Appeal proceedings.


The Court of Appeal quashed the EM determination, and remitted the matter to the Upper Tribunal for a further determination. It had granted permission to appeal at an opposed hearing on 20 December 2011, [2011] EWCA Civ 1704. Sullivan LJ and Maurice Kay LJ granted permission on four grounds:

Ground 1: Whether the Respondent failed to comply with its disclosure obligations and whether the Respondent's statement that the Foreign Office "had always been clear that its concerns on enforced returns were related to foreign policy considerations ... and were not related to the security or safety of returnees" had been misleading;

Ground 2: Whether the Tribunal's approach to evidence from anonymous sources was wrong in law, in particular in light of the ECtHR's judgment in Sufi and Elmi;

Ground 3: Whether the Tribunal had been entitled to find a "well established evidentially and durable" material change since its previous Country Guidance in RN;

Ground 4: Whether erroneous conclusions were reached on the Appellants' individual cases.


In January 2012, the Court made further disclosure orders, and the substantive appeal hearing was twice adjourned in May and June due to the Respondent's failure to comply with these disclosure orders. By the conclusion of the Court of Appeal proceedings, the Respondent had disclosed over a thousand pages of material concerning Zimbabwe that had not been disclosed to the Upper Tribunal, 730 pages of it after the grant of permission by the Court of Appeal (and the Respondent had indicated that a further 76 documents had been withheld altogether on Public Interest Immunity grounds).


The appeal was ultimately allowed at a hearing on 13 June before Maurice Kay LJ and Sullivan LJ, which had been listed to consider the FCO's PII claim and other disclosure issues. The Respondent conceded that there was a material error of law by reason of the Respondent's failure to make full disclosure in the Tribunal and that it was in the interests of justice that all the disclosure now made in the Court of Appeal be considered by the Tribunal. It was agreed that the PII review would also be dealt with by the Upper Tribunal.


The Appellants contended that their objections to reliance on anonymous evidence were supported by the approach taken by the European Court of Human Rights in Sufi and Elmi v UK (8319/07 and 11449/07). Shortly before the permission hearing, the Upper Tribunal had in AMM (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 445 (IAC) concluded that it preferred the approach taken by the Tribunal to anonymous evidence in this case to that taken in Sufi and Elmi.


Having considered the approach in AMM as well as that taken in this case, Sulllivan LJ held in the permission judgment that: "It is arguable that the Tribunal's starting point in the light of the decision in Sufi should have been that substantial weight should not be attached to the FFM because it was based upon anonymous sources, that is to say not merely the individuals giving comments were anonymous but also the organisations that they represented were anonymous. " (para 9)


The Respondent accepted at the hearing on 13 June that the principles governing anonymous evidence required further consideration in light of the Court's judgment granting permission and in light of any further submissions that the parties should make on common law and ECHR/ EU law governing anonymous evidence. In the Court's judgment on 13 June, Maurice Kay LJ observed that the Court had considered that the Appellants had a real prospect of success in showing that a different approach was required to anonymous evidence in light of Sufi and Elmi. The Court was invited to consider giving guidance itself. But the Court took the view that the further consideration required of the principles governing anonymous evidence should occur in the Upper Tribunal (depending upon whether there was still anonymous evidence relied upon before the Upper Tribunal when it came to reconsider the Country Guidance substantively).


Nicola Cockburn at Lambeth Law Centre acted for JG. Clare Miller at Turpin and Miller acted for CM (who was referred to as CLM in the EM determination). Sonal Ghelani of the Migrants' Law Project was also part of the legal team.


The Court of Appeal references are C5/2011/1181 (JG) and C5/2011/1183 (CM). The permission judgment is [2011] EWCA Civ 1704. The judgment given on 13 June is not yet published.

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