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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> Nhundu & Chiwera v Secretary of State for the Home Department (Zimbabwe) [2001] UKIAT 00613 (01 June 2001) URL: https://www.bailii.org/uk/cases/UKIAT/2001/00613.html Cite as: [2001] UKIAT 00613, [2001] UKIAT 613 |
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Nhundu & Chiwera v Secretary of State for the Home Department (Zimbabwe) [2001] UKIAT 00613 (01 June 2001)
01TH00613, CC-21729-2000
IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 15/03/2001
Date Determination notified: 01 June 2001
Before
MR C M G OCKELTON (DEPUTY PRESIDENT)
MR M W RAPINET
DR H H STOREY
Between
Nhundu & Chiwera | APPELLANT |
and | |
Secretary of State for the Home Department | RESPONDENT |
DETERMINATION AND REASONS
The s. 69(1) asylum appeals
"on the evidence as it emerged at the hearing I do not accept that the appellants have any well-founded fear of persecution if returned to Zimbabwe on account of their political opinion because of the very peripheral nature of their involvement, the fact that they have suffered no maltreatment in the past which amounts to Convention persecution and the very important evidence they gave that the appellants themselves do not really believe that their connection to the MDC was anything other than secondary."
At paragraph 44 he wrote:
"Taking into account the lack of evidence of persecution against whites generally in Zimbabwe, the tenuous connection of the appellants in this case to their white British uncle and the absence of treatment in the past which crossed the threshold of persecution, I conclude that there is no well-founded fear of such persecution if they were to return to Zimbabwe at the present time."
The s.65 human rights appeals
"A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person`s entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision..."
We are satisfied that the decisions in question were ones "relating to [the appellants] entitlement to enter or remain in the United Kingdom". We are further satisfied that under s.65(4) we have jurisdiction to consider the question thus arising of whether the adjudicator was correct to conclude that in taking these decisions the respondent had not acted in breach of the appellants` human rights.
Article 3
"The first appellant has been pushed and insulted, though never injured, intermittently over a relatively short period and songs have been sung outside his home. The appellant did not suffer any injury at the time and there has been no lasting harm or damage either physical or mental. In the circumstances of this appellant I find that the treatment about which he has complained does not attain the minimum level of severity to amount to either inhuman or degrading treatment.
In relation to the second appellant, Blessings Chiwera, he too complains of insults and having been pushed. For reasons already given I do not accept that he has been threatened with being killed. In evidence he indicated that he had suffered rather less than he described at interview because he said the worst that had happened to him was personal abuse. He has never been injured."
Article 8
"Given the tenuous connection between the appellants and their aunt during the last three years and the existence of other relatives in Zimbabwe, including the grandmother, with whom family life can be enjoyed, balanced against the right of the state to control immigration the refusal of leave in the case of these two adult men is entirely proportionate. It has not been disputed by Mr Symonds that the decision is in accordance with the law."
Existent private or family life.
"Everyone has the right to respect for his private and family life, his home and his correspondence"".
Interference
In accordance with the law.
Proportionality
"From these decisions I have drawn the following conclusions as to the approach of the Commission and the European Court of Human Rights to the potential conflict between the respect for family life and the enforcement of immigration controls:
(1) A State has a right under international law to control the entry of non-nationals into its territory, subject always to its treaty obligations. (2) Article 8 does not impose on a State any general obligation to respect the choice of residence of a married couple. (3) Removal or exclusion of one family member from a State where other members of the family are lawfully resident will not necessarily infringe article 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family members excluded, even where this involves a degree of hardship for some or all members of the family. (4) Article 8 is likely to be violated by the expulsion of a member of a family that has been long established in a State if the circumstances are such that it is not reasonable to expect the other members of the family to follow that member expelled. (5) Knowledge on the part of one spouse at the time of marriage that rights of residence of the other were precarious militates against a finding that an order excluding the latter spouse violates article 8. (6) Whether interference with family rights is justified in the interest of controlling immigration will depend on (i) the facts of the particular case and (ii) the circumstances prevailing in the State whose action is impugned."
"Article 1 [ which places on State parties the obligation to secure the rights as set out in the Convention] cannot be read as justifying a general principle to the effect that, notwithstanding its extradition obligations, a Contracting State may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention".
The issue of the appellants` right to physical and moral integrity as an aspect of the right to respect for private life
"In the case under consideration, as noted above, the applicant based his complaint under Article 8 on the same facts as that under Article 3, which the Court has considered and found not to have been established in essential aspects. In particular, it had not been shown that the handcuffing had affected the applicant physically or mentally or had been aimed at humiliating him In these circumstances the Court does not consider that there are sufficient elements enabling it to find that the treatment complained of entailed such adverse effects on his physical or moral integrity as to constitute an interference with the applicant`s right to respect for private life as guaranteed by Article 8 of the Convention".
"Turning to the present case the Court recalls that it has found above that the risk of damage to the applicant`s health from return to his country of origin was based on largely hypothetical factors and that it was not substantiated that he would suffer inhuman and degrading treatment. Nor in the circumstance has it been established that his moral integrity would be substantially affected to a degree falling within the scope of Article 8 of the Convention. Even assuming that the dislocation caused to the applicant by removal from the United Kingdom where he has lived for the last eleven years was to be considered by itself as affecting his private life, in the context of the relationships and support framework which he enjoyed there, the Court considers that such interference may be regarded as complying with the requirements of the second paragraph of Article 8, namely as a measure "in accordance with the law", pursuing the aims of the protection of the economic well-being of the country and the prevention of disorder and crime, as well as being "necessary in a democratic society" for those aims.
Accordingly it finds that the implementation of the decision to
remove the applicant to Algeria would not violate Article 8 of the
Convention".
The relevance of s.77(4)
"(3) In considering; (a) any ground mentioned in section 69; or (b) any question relating to the appellant`s rights under Article 3 of the Human Rights Convention, the appellate authority may take into account any evidence which it considers to be relevant to the appeal (including evidence about matters arising after the date on which the decision appealed against was taken).
(4)In considering any other ground, the appellate authority may take into account only evidence ? (a) which was available to the Secretary of State at the time when the decision appealed against was taken; or (b) which relates to relevant facts as at that date."
DR H H STOREY (VICE-PRESIDENT)