THE British Home Office issued a new Operational Guidance Note for Zimbabwean asylum seekers this week.
The Operational Guidance Notes are operational guidance for the caseworkers at the Home Office who make decisions in asylum cases. The OGN defines the Home Office policy on what categories of people from different countries will qualify for asylum – the biggest factor in being granted or denied asylum at first instance.
The new operational guidance note deals with the current situation in Zimbabwe and the recent developments in relation to the power sharing agreement between Zanu PF and the two MDC factions.
The OGN recognises that political violence has continued and that there has been an intensification of the campaign against white farmers with arrests and farm invasions on the increase. It is further noted that teachers have experienced intimidation and harassment on attempting to return to work.
More critically, the new OGN rejects the Asylum and Immigration Tribunal’s central finding in the RN (Returnees) Zimbabwe CG [2008] UKAIT 00083.
The Home Office says: “Although deplorable, a significant feature of the human rights abuses that are occurring now is that they have been for reasons other than those which led the AIT to conclude that those who were unable to demonstrate loyalty to Zanu PF would generally be at risk.
“The evidence of the past six months or so, therefore, no longer supports the contention that Zimbabweans are at risk merely because they would be unable to show support for Zanu PF (and there have been instances where Zanu PF supporters have been harassed or hurt, especially if perceived to have ‘betrayed’ the regime). A grant of asylum solely on this basis will not therefore usually be appropriate.”
This is a strong repudiation of the Asylum and Immigration Tribunal’s central finding in RN (Returnees) Zimbabwe CG [2008] UKAIT 00083 that all those unable to demonstrate loyalty to Zanu PF are generally at risk if returned to Zimbabwe, and should, therefore, be considered for refugee status.
There are still categories that the Home Office accept may be refugees, such as political activists, human rights defenders, members of civil society, and those in sensitive professions such as journalists and teachers.
The Home Office argument is essentially that the situation has changed since RN. RN is still a country guidance case, though, so it will be for the Home Office to show that it should not be followed at Appeal hearings.
Home Office Presenting Officers will need to produce country information to show that RN is now wrong and the situation has changed.
In one of my cases heard on Wednesday, the Home Office sought to argue that the situation in Zimbabwe had significantly changed since the decision in RN and argued that in light of the new OGN, our case should fail.
Counsel argued that RN remained the country guidance and supersedes the Operational Guidance Note. Our other argument was that the Operational Guidance Note is only guidance for the Home Office and is inferior to case law.
The Judges are, therefore, bound by the case law unless the Home Office can convincingly argue that the case law is no longer relevant. We will need to wait to see what the judge will decide in that respect.
What next now for people who have lodged fresh claims or new asylum claims?
It is highly likely that the Home Office will refuse the application if based soley on the decision in RN and applicants will be given a right of appeal. With the fast moving political situation in Zimbabwe, there is no way that one can tell what the situation will be when the time to hear such appeals comes.
This does not mean that all people who have made a fresh claim or a new asylum claim will automatically be refused but certainly, we will start to see more refusals coming through from the Home Office. Again, it is imperative that people who may be affected by this new operational guidance note should seek legal advice as each case will be decided on its merits.
There is no indication that removals will be resumed to Zimbabwe and it appears that the policy in that regard remains the same.
Rumbidzai Bvunzawabaya is a Solicitor at RBM Solicitors based in Coventry. She can be contacted at info@rbmsolicitors.co.uk or telephone: 02476520999