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The procedure that we were able to adopt with the assistance of the Attorney General addressed all potential obstacles to our satisfaction. She has acted at our direction and has been able to review all the material timeously; make her own independent assessment of the three questions we posed for her to consider; discuss her conclusions with members of the panel; engage in discussion with the counsel for the Secretary of State about issues that remained unresolved including the extent to which any gist of the material to which PII did apply could be provided to the appellant.
We are most grateful to her for the assistance provided over the period of the long vacation. The outcome of the process meant further information was supplied to the appellants shortly before the start date for these appeals without the need for a PII hearing. Although there have been subsequent slippages in the timetable set for determining this appeal and consequently the time available for the panel to be able to promulgate its determination, the hearing days assigned were productively deployed in hearing the evidence and core submissions.
Extension of the disclosure application As we have already noted, we regarded the issues that had been remitted to us for determination to be essentially historic ones. The task of determining them did not itself require further disclosure beyond 10 March We infer that this date was chosen by the Court of Appeal in January because this was the date of promulgation of the decision in EM. The Court was looking back to what we should have had then rather than forward to what may have come to light since.
We did not rule out the possibility that an evaluation of the information already supplied to us or indeed any further fresh evidence that was submitted might lead to further questions arising about information within the knowledge of the Foreign and Commonwealth Office after March As a starting point and in contrast to ordinary civil litigation, we recognise that there is no general requirement for disclosure of all relevant data held by the Home Secretary or indeed the Foreign Secretary in asylum appeals.
These are appeals to a Tribunal governed by a statutory regime and the Tribunal Procedure Upper Tribunal Rules as amended. In principle, the starting point was similar to that considered by the House of Lords in Abdi and Gawe  1 WLR  ImmAR where Lord Lloyd concluded that neither the express provisions of the rules then applicable nor the interests of justice required the Secretary of State to give discovery in asylum appeals. The case was concerned with return to a safe third country, and it is clear from the speech of Lord Lloyd and the partly concurring speech of Lord Mustill that the circumscribed timetable of third country appeals was a material factor in determining what the interests of justice required.
The decision would not justify the Secretary of State knowingly misleading the Special Adjudicator. The obligation of the Secretary of State cannot be put higher than that he must not knowingly mislead. Before the Secretary of State could be said to be in that position, he must know or ought to have known that the material which it is said he should have disclosed materially detracts from that on which he has relied. This was a judicial review of a substantive asylum appeal on the grounds of non-disclosure.
The words I have emphasised point to the inclusion of constructive knowledge. This was taken up by Simon Brown L. Taking a broad view of the authorities, they appear to illuminate these principles: We conclude that this observation is subject to the requirements of fairness as noted by Maurice Kay J. We are not aware of any authority on the point that advances the obligation beyond the duty not to mislead by omission of material that was known or ought to have been known to the Secretary of State.
The first was the principle that in judicial review proceedings once permission is granted, a respondent should disclose all relevant data about the decision and the process by which it was made cf R v Lancashire CC ex p Huddleston  2 All ERcited in the commentary in the White Book to CPR There is an obligation on a public authority whose decision is challenged by judicial review, to set out the relevant facts and reasoning behind the decision making process: We find neither strand supportive of a contention for a general duty to search for and disclose data relevant to risk in an asylum appeal or a Country Guidance case.
In judicial review, the obligation on the respondent is to explain the decision and make relevant disclosure of the materials on which the decision was actually based.
It is not suggested in these proceedings that the respondent actually had possession or sight of the subsequently disclosed FCO materials at the time of the decision to refuse asylum or resist this appeal1.
In SIAC or other closed proceedings the appellant is excluded from the closed parts of the hearing and is unable to present his own evidence in rebuttal of any closed data against his interests.
In that special context, the general principles of common law fairness required that the respondent did not pick and choose between the closed data under her control and there was a duty to search for and provide to the special advocate material that may be considered exculpatory. In our judgment, in asylum appeals and Country Guidance cases, the duty not to mislead provides a sound basis for evaluation of country material.
Where the respondent relies on absence of material risk by reference to Country of Origin Information Service COIS reports, UKBA Operational Guidance Notes OGNor responses to the evidence of others, she cannot make assertions that she knows or ought to know are qualified by other material under her control or in the possession of another government department. We anticipate that UKBA assessments of risk in foreign countries will frequently be informed by information emanating from the UK diplomatic mission in the region or other data in the possession of the Foreign and Commonwealth Office.CGI 3D Animated Short "Premier Automne" by - Carlos De Carvalho & Aude Danset
In the case of Zimbabwe we know that this has been substantially the case for some time. The UKBA relied substantially on the expertise of the British High Commission in preparing the fact-finding mission and the evaluation of political circumstances. We would expect the UKBA to ask for and be informed about any reliable material that might qualify a published assessment.
We would expect COIS reports to be updated regularly and kept under review. Where new material comes to light an OGN can be issued promptly, even if it is not itself a source of independent evidence. The reasons why the Tribunal had exercised its case management powers in the autumn of and directed disclosure of documents over a specific period, was because the appellant had disputed the accuracy of a public statement made by Ministers in the context of the resumption of enforced returns of failed asylum seekers to Zimbabwe see further paragraph 65 below.
 UKUT 59
It seemed to us appropriate in the light of the public statements made and the nexus to the Country Guidance appeal we were then embarked on to see if material existed to support or undermine the contention that the previous suspension of removals was for political rather than safety reasons.
Before the Court of Appeal the respondent accepted that previous disclosure was incomplete and that there was a failure of the duty of disclosure in the light of the issue identified above that had caused the Upper Tribunal to exercise its case management powers. This again was a historic rather than current issue. It went to an issue as to why the respondent had decided to resume removals to Zimbabwe.
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In the absence of a general duty to place before the Tribunal all contemporary data relating to an assessment on Zimbabwe, we saw no reason to exercise our case management powers to achieve the same result. There was further a risk of a never ending cycle of disclosure requests, PII applications and so on.
Disclosure by the Secretary of State of material held by the Foreign Office did involve PII issues, and the process for manual search, evaluation, submission for a certificate, judicial scrutiny of the merits of the certificate and the assessment whether there was a compelling case for disclosure in the interests of fairness was a laborious and time-consuming process.
The volume of material in issue far exceeded the slender bundle we were able to assess for ourselves in December The whole process was bound to be measured in months rather than weeks or days. By the time one application was determined the passage of time might lead to a further application and so on. We consider that the issue of directions requiring either the respondent or a fortiori a third party, to provide material in an asylum appeal is an unusual and exceptional course.
If it were regularly and routinely undertaken, it would be likely to significantly delay the listing and determination of any appeal. We recognised that, if there was recent material that was known or ought to be known to the Home Secretary suggesting that, whatever the position in the past, it would now be unsafe to return the appellant to Zimbabwe, her legal representatives had accepted that a duty of disclosure would arise, in the event that it was decided still to oppose the appeal.
The discharge of such a duty did not depend on directions from this Tribunal. Such material in asylum appeals is usually provided by the parties rather than by direction of the Tribunal.
As already noted no such information had been provided to us by the appellant at the time of the case management directions. Whether the present appeal should be listed as a Country Guidance case on the position in Zimbabwe in A decision whether a case is reported at all or is reported as a Country Guidance case is one for the Tribunal alone that it performs through the function of the reporting committee.
The process is set out in Presidential Guidance Note No 2 available at http: It is not a decision in which the parties have an interest: It is only at the end of the process that the Tribunal can be assured that the investigation has been sufficiently well-informed and comprehensive as to be able to constitute authoritative guidance on the conclusions to be drawn from a given body of material.
However, best practice is to case manage a potential Country Guidance case with this possibility in mind; normally by combining the appeals of several different appellants, and identifying the topic on which guidance is likely to be given in advance and thereby enabling the appellant and the respondent to identify the relevant evidence to be adduced.
Country Guidance is intended both to be an instrument for the fair and effective use of resources in Tribunal asylum determination, and a means of avoiding inconsistent approaches to the same material thereby generating uncertainty and duplication of appeals. It is usually deployed where there are a large number of appeals from the same country of origin raising the same or similar claims, and where an exhaustive examination of the material evidence is considered desirable in the interest of efficiency and consistency.
The principle is that like cases should be decided alike. The material evidence is all relevant information that the parties choose to place before the Tribunal or the Tribunal is able to deploy during the appeal from its own resources and expertise. It is of importance to note that a Country Guidance case is only authoritative in so far as the evidence in any subsequent appeal is the same or similar.
It is thus not a binding precedent that can only be varied by the Upper Tribunal or the higher courts. Where the evidence is materially different it is the duty of the judge of the First -tier Tribunal to evaluate it and reach his or her own conclusion, but in doing so he or she will start from the last extant Country Guidance case and see what if anything has changed.
Where the nature of the appeal or the rapidity of change in the country of origin is such that the Tribunal concludes it does not have a fully informed or durable picture, the relevant assessment may still be reported as a country information case, without the status of a Country Guidance case.
Given the inability of the existing technology to permit subject matter searches of unreported decisions of the Upper Tribunal the Reporting Committee is conscious of the need from time to time to bring cases containing relevant country information to public attention.
With these principles in mind, we were not persuaded in July that we should case manage this appeal as a new Country Guidance case on the up-to-date position in Zimbabwe, for the following reasons: If it was not then its status as Country Guidance when it was issued could be restored pending any change of circumstances.
Until these issues were determined it was premature to conclude that the decision no longer had any value as guidance. This was not a satisfactory basis to make the general appraisal that the Upper Tribunal had delivered in EM. If it were materially different from the previous Country Guidance case we were required by the principle in Ravichandran to reach the appropriate conclusions to be drawn from the material as a whole.
However, at the time of the case-management directions, we had neither such evidence before us nor the expectation that it would come before us and offer a materially different picture.
The reason the appeal was before us at all was not because there were conflicting First-tier assessments of post- EM material, but because the assessment in EM might prove to be flawed by the three arguable errors identified in the Court of Appeal proceedings.
The appeal of JG As a result of the legal aid problems noted above, JG did not participate in the directions hearing and make detailed submissions on the preliminary issues. In the event we were informed that she had secured representation by solicitors and would participate in the appeal set down for the autumn.
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However, when her skeleton argument was received shortly before the hearing it was apparent that she wished to develop a wholly new point never previously canvassed, namely that her child was at risk of social group persecution if hypothetically returned to Zimbabwe as a result of medical needs.
The Secretary of State objected to this late change of case without an opportunity to consider and investigate it and in those circumstances, we concluded that it was necessary in the interests of justice to separate her appeal from that of CM and adjourn it for separate consideration on its own individual facts.
The effect on the Country Guidance in EM of the materials subsequently disclosed by the respondent Introduction The background to the matter is set out at  and  of EM: Prior to the hearing in Octoberappellants JG, EM and CLM requested disclosure of all documents within the control of the Secretary of State for the Home Department or other government departments relating to assessments of the political situation in Zimbabwe for the purpose of determining whether to commence enforced returns, pursuant to the ministerial statement of 29 October That ministerial statement had indicated that the UKBA would begin work on a process aimed at normalising the returns policy to Zimbabwe, moving towards resuming enforced returns as and when the political situation developed.
In a letter of 18 October from the FCO Zimbabwe Unit to Mr Walker, it was said that the FCO had always been clear that enforced returns were related to foreign policy considerations, in particular the stability of the inclusive government in Zimbabwe, and were not related to security or safety of returnees.
Chiron Volume 33, No. 1 Autumn
On 22 December certain egrams were supplied to the appellants and the Tribunal, subject to certain redactions and gists. Ten egrams were identified. In the course of litigation involving another Zimbabwe citizen who wished to resist lawfulness of detention, material had come to light which cast doubt on the accuracy of what the FCO was recorded at  as having told Mr Walker. This material led to the appellants formulating ground 1 of their grounds of application to the Court of Appeal, as follows: It is common ground that the documentation not seen by the Tribunal in EM disclosed an interest on behalf of the United Kingdom government in implementing enforced returns to Zimbabwe, before future elections and the violence considered to be associated with them.
The significance of future elections in Zimbabwe was discussed at  to  of EM. At  the Tribunal said this: Drawing all these threads together, we do not conclude that our evaluation of who is or is not presently at risk if returned to Zimbabwe is undermined, by the possibility of a return to violence at levels in the event of elections being called in the foreseeable future.
The combined effect of the evidential uncertainty of when elections may be called and what might happen when they are produces a picture that is too equivocal or obscure to amount to a real risk of future ill treatment.
In granting permission to appeal on 20th Decemberthe Court of Appeal per Sullivan LJ was recorded as stating as follows: It is arguable that the additional material might have persuaded the Tribunal that the picture of when elections will be called and what was likely to happen when they were called, was not too equivocal or obscure. I express no conclusion as to whether that is the case since this is simply a permission application.
In the light of the emergence of this previously undisclosed material the Court of Appeal on 24th January decided to make its own orders for disclosure, as follows: The obligation extended to a manual search by the respondent and a manual and electronic search by the FCO. It was therefore considered, by consent, that all of the material disclosed to the appellants, and thus before the Court of Appeal, should be considered by the Tribunal.
We have explained in the first section of this determination the approach taken by the Tribunal to these outstanding tasks. The previously undisclosed materials In their submissions, the parties have chosen to deal with this matter by reference to separate headings, which appear to the Tribunal to be sensible, and which we describe as follows: We have had regard to all the new materials; in particular, those specifically relied on by the parties.
The following paragraphs, although selective, give a sufficient indication of their nature. The team spoke with officials in the British Embassy and the Government of Zimbabwe, as well as with the Zimbabwe Lawyers for Human Rights, the Counselling Services Unit and the Institute of Migration who put the team in touch with three voluntary returnees from the United Kingdom. While we cannot be certain, the window of opportunity may extend through In June vol.
An email of 2nd March vol.
Participants included political parties, civil society church group ministers, the army, CIO, tribal chiefs, war veterans and diplomats. CIO and military presence said nothing to suggest that the next elections would be any different. An FCO egram of 8th March vol.
Two days later, an FCO email chain vol. In April an FCO briefing vol. The gist of an FCO email of 25th August vol. Matters which needed to be addressed in order to avoid a repeat of were 1 the climate of fear needed to be tackled there was some evidence that ZANU-PF was deploying similar tactics via its constitutional outreach program albeit at a lower key ; 2 vote rigging needed to be addressed and a reliable way of recording, collating and announcing the results needed to be found; and 3 the security sector had prevented President Mugabe from stepping down inreform of that sector would be necessary.
Rather, we have taken a holistic view of the new materials; as well as examining them by reference to the very large body of material that was presented in EM.
The case for the appellant under this heading is, in essence, that the new material, particularly the report by Dominique Hardy on the February visit and the draft and final responses from the Foreign Secretary to the Home Secretary of Julymeant that the Country Guidance issued in March should have maintained the wide risk categories identified in RN.
As is clear from RN and from the evidence before us now and which was before the Tribunal in EM, the extent of the violence and general persecutory activity associated with the elections in Zimbabwe inwas unprecedented in its scope and intensity. But, as an analysis of the previous Country Guidance and relevant background materials makes plain, election violence has been a regular feature of post-independence Zimbabwe.
This reflects the pattern which has been followed since What was exceptional about the election violence in June is well-described at  to  of RN. Instead of merely targeting MDC activists, members and supporters, ZANU-PF, through its use of militias deployed in urban areas, and militias, road blocks and no-go areas in certain rural provinces, unleashed a wave of persecution that brought a real risk of serious harm to those who could not demonstrate loyalty to the regime.
It is in this important context that the views expressed in the new material regarding the likelihood of violence at further elections needs to be viewed. With one possible exception, there is no indication that the comments in the new material, regarding election violence, ought to be read as considered assessments that any future elections would, in substance, lead to a repetition of what was seen in This went beyond anything seen before and drew the finding in RN, regarding risk on return, not just to those with a MDC profile, but to anyone who could not demonstrate loyalty to the regime.
This is particularly so, given that one of those observers, the Counselling Services Unit, was interviewed by the FFM team in Augustand said this: The color is too uniform and the image is very busy and hard to read at first sight. It's an image that convinces as a whole and stands up in the quality of its details. Personally I think the meaning of the image loses to the image complexity, which in my opinion are two elements that cannot always live together. Good mixture of technical competence and artistic feel.
If I had to tell my personal critics, something does not feel right about the distribution and the scale, yet the overall image catches your eyes for those red tones. It pretty much only contains two elements, the house and the trees, but is still telling story with the dog and the person, seemingly coming home from an adventure.
The image catches an autumn feeling very well with the warm leaves on the ground, yet keeps a overall cold feeling to the air. The color grading on top of that, with the crushed blacks and toned down highlights really adds to the autumn feel. Compositionally it's great, we know the image is about the house and the adventure, still the house is a little disguised behind the trees, also following the rule of thirds in a good way.
Maybe we would want to see some more detail work and variation. Different kinds of treesand more details on the ground as it feels a bit too uniform. Rocks, bushes and mushrooms could do the image good, but without disturbing the simplicity. However, the overall feel to the image weighs up for it.