“Still the merry-go-round goes round, and round, and round again”

The Court of Appeal shows its despair at the immigration tribunal in the case of RM (Zimbabwe) v Secretary of State for the Home Department [2011] EWCA Civ 428 (13 April 2011). All three judges lament the fact that they have to remit the case back to the tribunal for yet further consideration, but the comments of Ward LJ are particularly heartfelt:

“Regrettably that undermines his decision. I say regrettably because it means that the Secretary of State’s appeal must be allowed and the matter remitted, yet again, for further reconsideration, now in the light of even more country guidance of the up to date state of affairs in Zimbabwe. This means another hearing, and more expenditure of public money on legal costs on both sides, probably with more appeals to follow and all of this in respect of a young woman who arrived in this country nearly ten years ago as a visitor, stayed as a student and some time in about 2002 was refused indefinite leave to remain as a dependant of her aunt because she was by then 18 years old. Now another nine years have passed. As far as I can tell she has no real family left in Zimbabwe; her aunts are all here and they wish for their mother, the appellant’s grandmother, to join them in the United Kingdom. As a result of our decision, the appellant’s future in this country is once more up in the air and still the merry-go-round goes round, and round, and round again. I shake my head in despair if not in disbelief at this extraordinary process which occupies so much court time.”

It’s not quite as graphic as his plea in an earlier case, “I ask, rhetorically, is this the way to run a whelk store?”, but it isn’t far off.

The response of some judges to asylum litigation is to suggest choking off legal aid. Perhaps a better, more appropriate solution would be to improve the quality of decision-making by UKBA officials and independent immigration judges in order to get it right first time.

That said, some might think the error of law is in fact rather difficult to spot in this particular case and there was an alternative to remitting the case: not remitting it and allowing the determination of the immigration judge to stand. Finding that the CIO in Zimbabwe is not a wholly rational organisation seems sound: rational people do not generally go around intimidating, beating, torturing and murdering people. Most would agree that these activities are inherently irrational and not the first sign one would look for in a sound, stable, reasonable mind.