Upper Tribunal Issues New Country Guidance determination on Zimbabwe

This is the decision that Immigration Minister Damian Green said, would be the 'Green light' to resume forced removals/deportations to Zimbabwe.

If you are liable to detention and removal/deportation - you must read here . . . .

This briefing kindly provided by the Immigration Advisory Service (IAS) is not a legal briefing and should not be presumed to be such. After reading the briefing and judgement, IAS urge Zimbabweans who may be affected by this determination and the developing situation in Zimbabwe to ensure they have expert legal advice. "

You can download the full judgement   here . . . .

EM & others; Zimbabwe CG [2011] UKUT 00098

The Upper Tribunal has issued its new Country Guidance determination on Zimbabwe following a six day hearing in October 2010 with further hearings in December 2010 and January 2011 resulting from the Government's delay in complying with disclosure orders and the Government's request for Public Interest Immunity.

In respect of rural areas of Zimbabwe other than Matabeleland, the Tribunal has retained the 'loyalty test' that it established in its previous 2008 Country Guidance, RN. In general, therefore, anyone in those areas who cannot demonstrate loyalty to Zanu-PF is at real risk of persecution and "Persons who have shown themselves not to be favourably disposed to ZANU-PF are entitled to international protection, whether or not they could and would do whatever might be necessary to demonstrate such loyalty".

People in Harare (or other urban areas outside Matabeleland) are at risk if they have a significant MDC profile or will take part in political activities likely to attract the attention of Zanu-PF. The risks they face include those arising from the recent Zanu-PF attacks on the MDC in Harare that the Tribunal recorded. They are unlikely to have an internal relocation alternative to rural areas other than Matabeleland and internal relocation to Matabeleland, including Bulawayo "may be negated by discrimination where the returnee is Shona".

In Matabeleland, the Tribunal held that the RN loyalty test does not currently apply and those with a MDC profile are not currently at risk, although the position will be different in the minority of areas of Matabeleland which are "under the sway of a Zanu-PF chief, or the like".

The Country Guidance as to risk on arrival remains unchanged. Claimants (including those from Matabeleland) can therefore continue to rely upon the risk categories set out in previous Country Guidance dating from 2005 (SM, AA No. 2, and HS) regarding those with a profile that places them at risk of ill-treatment during 'second stage interrogation' upon arrival.

Given that the RN test no longer applies to urban areas or rural Matabeleland, there is also now an issue of internal relocation for claimants from rural Zimbabwe other than Matabeleland who would succeed solely on the basis of the RN loyalty test. However, the Tribunal considered evidence about adverse living conditions in high density urban areas and held that "the socio-economic circumstances in which persons are reasonably likely to find themselves will need to be considered, in order to determine whether it would be unreasonable or unduly harsh to expect them to relocate."

Teachers continue to be a heightened risk category the significance of which is to be assessed on an individual basis.

The Tribunal emphasised that their guidance may need to be departed from if conditions deteriorated in connection with the forthcoming elections but rejected the appellants' case that the risks relating to the forthcoming elections were sufficiently real and foreseeable that the RN guidance should remain unaltered for this reason even if the Tribunal found (as it did) that there was currently less political violence in Zimbabwe than during the 2008 period considered in RN.

The Tribunal held that:

"241... There is a considerable body of evidence to the effect that, if elections were to be held early at the instigation of Mugabe and ZANU-PF, in defiance of international opinion, there is a real risk of violence on the scale of 2008. The Embassy egrams share this concern. In such a scenario ("the early election scenario"), a returning failed asylum seeker from the United Kingdom would face a situation in all essential respects akin to that identified by the Tribunal in RN. Roadblocks would proliferate in many rural areas, militia bases and so-called torture bases would be activated in such areas and "loyalty tests" - this time, of course, involving Mugabe and ZANU-PF rather than the government as such - would again become commonplace. A returnee to such an area would, except in the categories identified in RN and described in this determination, face a real risk of ill- treatment, in the event of a failure to pass such a "test". We have already explained why, based on the current position in these rural areas, we have concluded that serious difficulties will in many cases face a returnee from the United Kingdom, with the result that, in this regard, our country guidance represents no significant change from RN. The result of calling early elections would therefore be to exacerbate what is an already dangerous situation for such a person".

However, it considered the prognosis for Matabelaland and urban areas to be more optimistic, questioning the ability and willingness of ZANU-PF to launch an all-out assault upon areas of Harare.

It concluded that:

"264... 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.

265. We would emphasise that our findings on this issue do not affect what we have earlier said about the present general risk to those returning to rural parts of the eastern provinces of Zimbabwe. There is also the following important point. 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 effect of Practice Direction 12.2 is such that a country guidance case is authoritative in a subsequent appeal, only so far as that appeal relates to the country guidance issue in question and depends upon the same or similar evidence (our emphasis). By the same token, we would expect the respondent to take account of that situation, both in reaching decisions on asylum claims involving Zimbabwe (including fresh claims under paragraph 353 of the Immigration Rules) and in deciding whether to give directions for a person's removal to Zimbabwe".

The Tribunal dismissed two of the individual appeals (one of which was unsurprising, since he made no contact with his lawyers or the Tribunal following initial instructions). It allowed one of the appeals on asylum grounds and held that the remaining appeal would have been allowed on Article 8 grounds had the Home Office not conceded this ground in the course of the hearings.

The Tribunal observed that a number of Zimbabweans may now face return as a result of its Country Guidance but for Article 8 issues and it therefore explained why it had would have allowed one of the appeals on Article 8 grounds. It said that:

"Whether JG could ever have substantiated a protection claim to remain or not, it is understandable that she would be unwilling to return voluntarily to a society so ravaged by violence, insecurity and an absence of sound governance as was Zimbabwe under ZANU-PF."

It emphasised that

"Even where neither the children nor any parent has the status of a British citizen, the welfare of the children is a primary consideration in administrative action affecting their future and accordingly the balance of competing interests under Article 8 must reflect this factor as a consideration of the first order, albeit not the only one."

It concluded that seven years in the UK (the period used in a now withdrawn Home Office policy) was the appropriate rule of thumb in determining whether to allow the Article 8 appeals of families with children.

John Steward, who had conduct of the appeal for Immigration Advisory Service (IAS), said:

"The IAS is very concerned that the Tribunal has at such a sensitive time decided to narrow the protection that the UK grants Zimbabweans seeking asylum. The evidence before the Tribunal in our view demonstrated a deteriorating situation. Indeed, the very final evidence before the Tribunal included an FCO Minister telling Parliament there was "very clear evidence of intimidation and violence rising again" as Mugabe prepared for elections. All the experts from whom the Tribunal received evidence agreed about the grave risks to ordinary Zimbabweans especially given the forthcoming elections, and that now was not the time to start withdrawing protection.

"While the Tribunal told the Home Office that it should monitor conditions in the run up to the elections, that will be no comfort to those who have already been returned to Zimbabwe and are unable to escape again if, as the experts fear will happen, Mugabe unleashes a reign of terror as he did in 2008 in order to cow Zimbabwe into submission and win the elections.

"IAS nevertheless welcomes the Tribunal's recognition that many Zimbabweans, especially those with children, will have become so settled in the UK during the years that Zimbabwe has been ravaged by violence that it would be unreasonable to expect them to return. We urge Zimbabweans who may be affected by this determination and the developing situation in Zimbabwe to ensure they have expert legal advice. "