IT HAS been a victorious week for many Zimbabwean asylum seekers. The Court of Appeal decision in RN (Zimbabwe) has been long coming and has been welcomed by Zimbabweans, refugee groups and support organisations for Zimbabweans across Britain.
The full impact of the decision does not seem to have dawned on the many Zimbabweans who may be affected by it.
The details of the case and key points have been analysed in an article by Taffy Nyawanza, published on this website this week, so I will not dwell on that. The key points in summary are as follows:
“The evidence establishes clearly that those at risk on return to Zimbabwe on account of imputed political opinion are no longer restricted to those who are perceived to be members or supporters of the MDC but include anyone who is unable to demonstrate support for or loyalty to the regime or Zanu PF. To that extent the country guidance in HS is no longer to be followed.
“The fact of having lived in the United Kingdom for a significant period of time and of having made an unsuccessful asylum claim are both matters capable of giving rise to an enhanced risk because, such a person is in general reasonably likely to be assumed to be a supporter of the MDC and so, therefore, someone who is unlikely to vote for or support the ruling party, unless he is able to demonstrate the loyalty to Zanu PF or other alignment with the regime that would negate such an assumption.
“The attempt by the regime to identify and suppress its opponents has moved from the individual to the collective. Thus, a person who returns to a home in an area where the MDC made inroads into the Zanu PF vote at this year’s elections faces an enhanced risk as whole communities are being punished for the outcome in an attempt to change the political landscape for the future and to eliminate the MDC support base.”
Basically, the Tribunal says that any Zimbabwean (even one who has never claimed asylum, regardless of whether they would return voluntarily or enforcedly) is at risk of persecution on political grounds UNLESS they can demonstrate to the authorities that they are loyal to the regime.
It is not necessary that they have any MDC or opposition profile at all, relocating internally is unlikely to help, and even possessing a Zanu PF membership card or living in a Zanu PF area may not save them.
The finding from HS that failed asylum seekers per se do not face a risk at the airport has not changed. Instead, the Tribunal looks at what will happen to someone once they have made it through the airport.
However, this is not a blanket no-return decision in the way that AA(1) was. There will be some (not many though) who will not succeed. The Tribunal will still adopt a case-by-case approach.
What next for Zimbabwean claims?
If the Home Office does not appeal, which I am reliably informed they may not do, this may finally bring a conclusion to the many unresolved Zimbabwean Cases which were initially allowed under AA(1) and have been waiting a decision pending the resolution of the country guidance cases.
A popular immigration news blog says that the Home Office is apparently saying they will review all Zimbabwean cases awaiting reconsideration and High court decisions with a view to deciding whether they should be granted asylum under RN.
Many Zimbabweans were affected by and have been waiting for close to three years for a conclusion to their cases. This decision will no doubt make a huge difference to many that have been stuck in limbo for years.
What about those cases that are still in the process?
On the basis of the case of RN (Zimbabwe), it appears that many of the cases will be allowed save the exceptional few who may have appalling credibility or where there is evidence of their ties to the ruling Zanu PF.
Some of the Home Office presenting officers known as (HOPOS) have been conceding Zimbabwean cases i.e. withdrawing the refusal and effectively agreeing that the appellants be granted refugee status.
All the indicators are showing that the Home Office may actually be granting asylum to Zimbabweans, rather than keeping them hanging on for any longer. We will have to wait and see how this develops over the next few weeks.
The Losers?
I have received many questions regarding how this decision will affect people who are failed asylum seekers and their cases are caught up in the legacy queue.
The decision in RN will no doubt have a positive impact on the ultimate decision in the cases that are being dealt with under the Legacy Exercise (Case Resolution Exercise). The only downside is that the case will not be dealt with any quicker under the Case Resolution Exercise as a result of this decision and individuals with cases in this category will have to continue to wait.
The exceptions are where an individual can show that there are exceptional and compelling circumstances in their case. In HG, Underhill J held that generally there was nothing unlawful about the failure to decide priority cases sooner than March 2010.
However, there is room for challenging a Home Office decision that a particular case does not fall within the ‘truly exceptional’ or ‘compassionate cases’ priority category, which covers cases that have been ‘seriously mishandled’ or where there are ‘compelling compassionate circumstances’.
Wanting to travel abroad to visit a seriously ill close relative falls within this category, but good medical evidence on the relative’s condition and illness is needed.
Other losers are individuals who may have recently had their decisions refused by the Tribunal and have exhausted all their appeal rights. A fresh claim may still be an option for these individuals. However, it will be prudent to get legal advice if one is in this situation.
Overall this decision will have a very positive impact on many Zimbabweans who will now be able to live lawfully in this country and work to support their families who are suffering in Zimbabwe.