Zimbabwean asylum case
RK (Zimbabwe) v Secretary of State for the Home Department [2011] EWCA Civ 456 (20 April 2011)
This Court of Appeal case was heard on 20th April 2011 (on appeal from the Asylum and Immigration Tribunal). This appeal was brought against the decision of Immigration Judge Sommerville made at a second stage reconsideration hearing. By that decision, the Immigration Judge dismissed the appellants appeal against the Secretary of State’s (herein after referred to as the SSHD) decision to refuse asylum or humanitarian protection.
Background to the case
The appellant is a Zimbabwean national and entered the UK in August 2002 with six months leave to enter. She applied for an extension of leave to remain in January 2003 as a student but was refused. She submitted a further application in April 2003. After yet a further application, the appellant was granted an extension of leave to remain. The appellant extended her leave on various occasions and her final leave was valid until 31st October 2008. On 22nd November 2008, the appellant applied for leave to remain as a Tier 1 Migrant. This application was refused on 22nd December 2008. On 21st January 2009, the appellant claimed asylum. This was refused by the SSHD on 19th March 2009.
The appellant subsequently appealed against the decision and on 6th May 2009, her appeal was allowed on asylum grounds but dismissed on human rights grounds. The SSHD applied for reconsideration of the decision which was granted and on subsequent appeal, it was held that the initial decision contained an error of law in concluding that the appellant had established a well founded fear of persecution solely because of the fact that she faced being returned to Zimbabwe as a failed asylum seeker after years of residence in the UK. The Immigration Judge had not considered the appellant to be a refugee sur place and had stated that her account was incredible.
Immigration Judge Sommerville at the reconsideration hearing did not accept the appellant’s ROHR membership was genuine or that her political activities in the UK ‘were a genuine expression of her political views’. He concluded that she did not face risk on return.
At this appeal, the Immigration Judges considered the recent decision in the case of RT (Zimbabwe) & Ors [2010] EWCA Civ 1285 in which the court considered the impact upon an asylum claim of an actual or perceived need on part of the claimant if he were to be returned to his Country of origin, to lie about his political affiliations in order to avoid persecution. The Supreme Court had held that it was unacceptable that a person should have to lie in order to avoid being persecuted.
The SSHD indicated during the case, that they would concede on the matter being remitted to the Upper Tribunal for a further determination before a different immigration judge. They agreed that the AIT did not ‘adequately assess the country guidance’ in the case of RN and that it had not been properly applied to the facts of this case. The appellant’s representatives argued that the appeal should be allowed outright.
Conclusion in the case
The question before the court was whether the established facts of the case could demonstrate that the appellant would face risk on return to Zimbabwe. Based on the application of the country guidance case of RN, the court agreed that the case would need to be remitted for further investigation. However, the court needed to consider the impact of the case of RT. This latter case concluded that, a person who is able to demonstrate loyalty to the regime in Zimbabwe, but only by way of lying about her political beliefs, should not be refused asylum. However, the case of RT was said not to be laying down a general rule to that effect and needed to be approached with caution.
The court decided that in order to make a proper assessment as to the merits of a claim for protection, there needed to be more information then available. The appellant was not found to be a credible witness at her appeal and there was not enough evidence to establish that the case of RT was engaged.
For these reasons, the appeal was allowed and remitted to the Upper Tribunal for reconsideration before a panel of different judges (but preserving some of the findings of the initial immigration judge)
Zimbabwean asylum case remitted for further consideration
RM (Zimbabwe) v Secretary of State for the Home Department (Rev 1) [2011] EWCA Civ 428 (13 April 2011)
This appeal is brought by the Secretary of State for the Home Department (herein after referred to as the SSHD) against the determination of the respondent’s asylum appeal (made on 24th January 2008) and subsequent decisions.
Background to the case
The respondent (RM) is a Zimbabwean national and arrived in the UK on 25th July 2001 using a valid passport in her own name. She entered as a visitor and subsequently made an application for leave to remain as a student which was granted until 31st August 2002. She later made a further application for indefinite leave to remain as the dependant of her aunt on 9th March 2002. This application was refused as she was over the age of 18. The respondent appealed against the decision and later withdrew her appeal claiming asylum on 27th July 2005. Her asylum claim was refused by the SSHD on 19th December 2006. She appealed on asylum, humanitarian protection and human rights grounds.
Asylum grounds
RM lived with her grandmother in Zimbabwe. Her parents had separated when she was young. The MDC (UK) was formed in the year 2000 and her aunt (referred to as M) was a member and subsequently a vice-chair of the South London Branch. She was concerned as to RM’s safety and brought her to London. RM began residing with her aunt.
RM claimed asylum only where there was a risk of removal. She claimed asylum on the basis of imputed political belief as a result of her aunt’s activities in the UK. Her aunt M had ceased involvement with the MDC (UK) shortly after 2001 and set up a woman’s charity.
RM’s representative argued the case of SM & Others (MDC –internal flight- risk categories) Zimbabwe CG [2005] UK IAT 00100 stating that RM was a family member of a person with an MDC profile. As such, it was argued that she would be investigated upon return to Zimbabwe on account of her aunt’s political activities.
Findings of First Tier Tribunal
On 29th March 2007, RM’s appeal was dismissed. The Immigration Judge did not accept that the case had been established to show that RM would be at risk on return. Her aunt, M, was able to return to Zimbabwe in 2004 using her own name which made it highly improbable that the Zimbabwean authorities regarded her as a high profile MDC activist. The Immigration judge did however; accept that RM genuinely feared return to Zimbabwe.
Reconsideration
RM sought reconsideration which was granted as the Immigration judge had failed to adequately consider the fact that RM would be an involuntary returnee.
A second stage reconsideration took place in January 2008. The Judge considered the case of HS (returning asylum seekers) Zimbabwe CG [2007] UK IT 00094. The Judge reached the conclusion that the case of HS had limited materiality however, proceeded to treat HS as his authority. He concluded that RM would be identified on return to Zimbabwe and that she would be at risk. The SSHD appealed against this decision.
Permission to appeal was granted to the SSHD as the Immigration judge had failed to apply the entirely of the country guidance case which amounted to a material error of law.
Conclusion
The Court of Appeal Judges concluded that the case had to be remitted back to the Tribunal for further consideration. The findings of the Judge at the reconsideration hearing could not be upheld and therefore the SSHD’s appeal was allowed. The Judges commented that this was a ‘merry go round’ and that new country guidance information was available and would no doubt, be considered at a new hearing. Lord Justice Ward stated noted the expenses and length of time the case had taken and the effect of the decision on RM stating ‘I shake my head in despair if not disbelief at this extraordinary process which occupies so much court time’.
UK delivers latest decision on Zimbabwe country guidance case
EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC)
This case was heard on 14th January 2011 at Field House by the Upper Tribunal. The case replaced the decision in RN (Returnees) Zimbabwe CG 2008 UKAIT 00083.
The Tribunal held as follows:
1. As a general matter, there is now significantly less politically motivated violence in Zimbabwe, compared with the situation considered by the AIT in RN. Failed asylum seekers from the UK with no significant MDC profile will not be at risk of having to demonstrate loyalty to the Zanu PF.
2. In general, those originating from rural areas (other than Matabeleland North or South) who cannot demonstrate loyalty to Zanu-PF are at real risk of persecution and should be afforded international protection.
3. Those from low or medium density areas in Harare are not likely to face any risk. Those from high density areas and who cannot show any connections to the ZANU-PF will not face any significant problems unless they have a MDC profile which might attract the adverse attention of the authorities. They are unlikely to be able to relocate except for Matabeleland. However, Shonas may still face discrimination in these areas and therefore it may not be safe for them.
4. A returnee to Bulawayo will not generally suffer risk on return even if he or she has a significant MDC political profile
5. People from the rural areas, while generally at risk if they cannot demonstrate loyalty to the Mugabe regime, will be expected to relocate to the urban areas, unless it can be shown that this would be unduly harsh because of socio-economic circumstances.
6. There was clear evidence that Teachers were at risk of persecution and remain a heightened risk category. Cases will however, need to be considered on a case by case basis.
7. Those particularly lacking in credibility may fail on showing risk on arrival and the guidance in the case of RN remains valid.
The Tribunal made reference to the forthcoming elections and highlighted the fact that the situation may change and there may be a need to depart from their guidance. They stated that
“if after promulgation of this determination, evidence emerges that elections will be held at a particular time, without any of the safeguards and other countervailing features we have described, then the structures underpinning the country guidance system ensure that judicial fact-finders will be required to have regard to the new state of affairs, in reaching determinations on Zimbabwe cases”.
The Tribunal acknowledged that the result of calling an early election may exasperate the situation for some returnees.
The Tribunal also considered article 8 of the ECHR (right to a private and family life) and acknowledged that the appellants had established article 8 rights in the UK. They particularly referred to the welfare of the children stating that it was a ‘primary consideration’ concluding that spending 7 years in the UK would be an appropriate threshold. The Immigration judge commented that
‘In the absence of any other policy guidance from the Secretary of State, it remain legitimate for Immigration Judges to give some regard to the previous policy that seven years residence by a child under 18 would afford a basis for regularizing the position of the child and parent in the absence of conduct reasons to the contrary, in making a judicial assessment of whether removal is proportionate to the legitimate aim having regard to the best interests of the child’.
RT (Zimbabwe) & Ors v SSHD [2010] EWCA Civ 1285
This case concerned appellants of Zimbabwean origin who having claimed asylum in the UK, were refused by the Home Office. Their appeals were subsequently dismissed by the Asylum and Immigration Tribunals by reference to the guidelines in the case of RN (Zimbabwe CG) [2008] UKAIT 00083.The appellants in this case were not political activists in Zimbabwe; nor were they politically active in the UK. They did not support the ruling ZANU-PF regime and could not demonstrate their loyalty to the party. The basis of their asylum claims were that, they would be at risk of return as a result of the length of time they had been absent from Zimbabwe. The question was ultimately, whether their rights would be breached if forced to join the ruling party on return to Zimbabwe. The Courts considered whether Zimbabwean asylum seekers should have to pretend that they were supporters of ZANU-PF on return.
The key point in the case of RN was that, it was not necessary to demonstrate that the asylum seeker was a perceived member or supporter of the MDC. The fact that the asylum seeker could not show his/her positive loyalty to the regime or the ZANU-PF would suffice to render that person at risk.
The Court of Appeal looked at the recent Supreme Court case of HJ (Iran) v SSHD [2010] UKSC 31; [2010] 3 WLR 386. In this case, the Supreme Court held that, they could not compel a homosexual person to pretend they were heterosexual. It held that this would be in violation of the person’s fundamental right to be as he is. Therefore, the court concluded that if an asylum seeker is forced to hide his/her sexuality in order to escape persecution, the asylum seeker should be granted refugee status.
In the present case, the court was asked to apply the same reasoning to the facts of this case. Extending the same logic, a person should not be expected to profess a loyalty to a regime which he does not possess in order to avoid being persecuted.
The Court held that none of the four appellants in the case were political refugees in the ordinary sense and whilst in most contexts, their asylum cases would be rather weak, the situation in Zimbabwe was so exceptional so as to warrant consideration. The court applied the guidance in the case of RN and allowed the appeals in the case of appellant known as RT. Two appellants’ cases were remitted to the Upper Tribunal. The fourth appellant, whose appeal was dismissed, had not been accepted as a credible witness.
Although the Court specifically referred to the ‘exceptional’ conditions in Zimbabwe, it is believed that the underlying principle as established in the case of HJ (Iran) should be applied in similar cases of Countries governed by authoritarian states. The Supreme Court made it clear that asylum seekers should not have to take such measures to avoid offending their persecutors.
Whilst RN country guidance remains good law at present, it is subject to review and may be changed very soon.
November 2010
The current Minister of Immigration, Damian Green, has declared in a ministerial statement that the UK Border Agency is to recommence enforced returns of failed asylum seekers to Zimbabwe.
As a result of the unstable political situation in Zimbabwe enforced returns were stopped in September 2006, this was because at the time the safety of asylum seekers could not be guaranteed if removed back to their country.
However, Zimbabwe is now seen to be a stable country and as a result it is seen to be conventional to receive those returned to it.
Essentially what this means is that all Zimbabweans who are residing in the United Kingdom on an illegal basis will now be at risk of facing forced removals back to their country. This was reiterated by Damian Green who stated that 'This decision reflects the improved stability in Zimbabwe since 2009 and the UK court's view that not all Zimbabweans are in need of international protection.”
He continued on by saying that the UK is a country which “takes its international responsibilities seriously and will always grant protection to those in genuine need, and continue to monitor events in Zimbabwe.”
Please note that the UK Border Agency claims to have helped many Zimbabweans, since 2006, to return back to their country on a voluntary basis and will continue to provide such packages to those wishing to use such a service.
The UK Border Agency announced that cash and aid repatriation packages worth up to £6,000 are to be offered to failed asylum seekers to go home voluntarily to Zimbabwe.
Phil Woolas, the immigration minister, indicated at the same time that the first steps would be taken this autumn towards forcibly returning more than 10 000 failed asylum seekers who fled Robert Mugabe's regime… Read more
Date: 01.11.2009
On 26 October 2009 the UK Border Agency announced that it is planning to resume deportation of thousands of Zimbabweans from the United Kingdom whose asylum status applications were turned down by the Home Affairs office.
Date: 29.10.2009