In the case of FM (Zimbabwe) v Secretary of State for the Home Department (2011) an asylum seeker, M, claimed asylum on the basis that she, as an AIDs sufferer, could not obtain medical treatment for her condition if returned to Zimbabwe as the anti-retroviral treatment required was only available to individuals who supported the leading Zanu (PF) party. The Secretary of State rejected her claim but elected not to be represented at M's appeal against his decision. At first instance, the immigration judge held that M was an honest person who was politically neutral and had not overstated her case. He found that, although M's rights under the European Convention on Human Rights were not automatically breached (having considered the case law), if she returned to Zimbabwe, M would suffer an accelerated death not just by general lack of medical treatment but because of active discrimination by the Zimbabwean authorities. Her rights under Article 3 would therefore be breached if she was returned.

An immigration judge who reconsidered the original immigration judge's decision found that he had erred in law by attaching improper weight to the evidence before him. M appealed this decision on the basis that the original judge had reached the decision he was entitled to reach on the evidence before him and the law as it stood at the time. The Secretary of State contended that the original judge's decision was inadequate and that he failed to carry out a sufficient analysis.  

On appeal, it was found that the original judge had been entitled to reach that decision as he had correctly identified the issue as being state discrimination and not the general lack of medical facilities. There was no suggestion that the judge had not carefully evaluated and accurately summarised the evidence. It was for him to decide the weight to attach to that evidence. Although there was a later case (RS & Ors (Zimbabwe - AIDS) Zimbabwe CG [2010] UKUT 00363) which had the benefit of full evidence on the relevant matter and which showed that the decision was wrong on the merits of M's case, there was no evidence before the judge at the time to contradict the conclusion he had reached.