UK asylum post-PM speech

I HAVE not had the chance to write on this blog for a few weeks due to work commitments however this is just a quick post to give an update on the current state of play with regard to Zimbabwean asylum cases.

In order to cover the many areas that readers of this blog are concerned about, I will respond to a few email enquiries that I have had over the past few weeks.

# How has the Home Office responded to Prime Minister Morgan Tsvangirai’s speech at Southwark Cathedral on June 20, 2009?

We have now started to have decisions made post the speech made by Tsvangirai. The reasons for refusal letters issued by the Home Office deal with the usual issues relating to the individual clients matter and then go on to deal with the situation back home.

The Home Office is starting to look at the situation in Zimbabwe in light of Tsvangirai’s comments and have been quoting the Prime Ministers speech in some refusal letters.

The standard comment that we have found states as follows: “It is noted that in his address to more than 1,000 exiles in Southwark Cathedral on June 20, 2009, Morgan Tsvangirai stated that that improvements had been made through the creation of a “transitional” government, that there is peace and stability in Zimbabwe and that it was now time for those living in exile to return to Zimbabwe.”

The conclusion reached by the UK Border Agency is that although there are a few glitches in the operation of the unity government, the country situation is noticeably different to that of the time before the power sharing agreement.

The speech made by the Prime Minister is not the only source used by the Home Office to reach a conclusion. The Home Office is using a variety of sources to assess the situation in Zimbabwe including reports from the Online and Print newspapers.

The speech by the Prime Minister is, therefore, not taken in isolation and is not the only factor taken into consideration by the Home Office in making decisions with regard to Zimbabwean asylum cases.

The Home Office’s argument is that whilst human rights abuses are still being reported in Zimbabwe, the evidence of the last eight months or so does not support the contention that a person is at risk merely because they would be unable to show affiliation to Zanu PF.

The position being taken by the Home Office is not anything new. The Home Office changed the Operational Guidance Note with regard to Zimbabwean Cases in March 2009. This was long before the infamous speech at Southwark Cathedral on June 20, 2009.

It is my view that although the Home Office is making reference to the Prime Ministers comments, this is not the determinative factor in the decision making. They consider various sources of objective evidence before drawing conclusions with regard to whether Zimbabwe is safe for members of the opposition or not.

The rise in refusals is, therefore, not solely as a result of the Prime Ministers speech but as a result of the changing political situation in Zimbabwe.

Is RN still valid as country guidance and can a Zimbabwean still make an asylum claim?

RN (Returnees) Zimbabwe CG (2008) UKAIT 00083 is still the country guidance case for Zimbabwean Asylum Cases. The Asylum and Immigration Tribunal is in general still applying RN. The Home Office will always put forward evidence to show why RN no longer applies.

However, in the absence of a significant change in Zimbabwe, the country guidance remains the same. The key point to note is that a country guidance case supersedes Operational Guidance.

The Operational Guidance is an internal document used by the Home Office in their decision making. This does not make it law and it does not override Country Guidance cases.

A country guidance case should continue to be treated as an authoritative finding on the country guidance issue(s) identified until it is removed from the AIT website list of CG cases. If a case remains on the website as a CG case, it continues to furnish country guidance unless a later case expressly supersedes or replaces it as CG.

The Tribunal in the case of RN did consider the situation where it would be appropriate to revisit its determination and it states the following at paragraphs 263 & 264;

“Although a power sharing agreement has been signed between Mr Mugabe on behalf of Zanu-PF and Mr Tsvangirai on behalf of the MDC, it is too early to say that will remove the real risk of serious harm we have identified for anyone now returned to Zimbabwe who is not able to demonstrate allegiance to or association with the Zimbabwean regime.

Further international intervention or some unforeseen upheaval inside Zimbabwe itself may change the position, for example, by giving the MDC real control of the police. In such an eventuality it will be for judicial fact finders to determine the extent to which the evidence before them differs from that which is before us, pending fresh country guidance.”

The arguments being put forward by the Home Office to depart from the case of RN are issues that were put before the Tribunal in RN and dealt with in detail. The Home Office is simply trying to circumvent the law by failing to apply RN.

It is, therefore, very important to obtain legal advice before embarking on appeals before the Tribunal. I have dealt with some appeal refusals where a person has appeared without representation at the Tribunal and noted with concern that the AIT failed to apply RN at all and in some cases failed to apply it correctly.

In conclusion, Zimbabweans who are in the asylum process or who have a genuine fear of persecution should not give up with their cases simply because of the Prime Minister’s comments and from rumours in the community that all asylum claims are now being refused.

True, there are more refusals now in comparison to the beginning of the year, but there are still cases that are being allowed by the Home Office and at the Asylum and Immigration Tribunal. The key is to obtain legal advice at all stages and to keep oneself up to date with the changing political environment in Zimbabwe.

Genuine asylum seekers should not give up on their cases and continue the fight for protection from the British government. The situation in Zimbabwe is better but cannot be said to be safe. There is a wealth of objective evidence to show that the situation remains volatile and uncertain.

In the next post, I will give an update on decisions where there are children who have lived in this country for a long time and also with a frequently asked question about what will happen in five years time to those fortunate people that have been granted refugee status.

Rumbidzai Bvunzawabaya is a Solicitor at RBM Solicitors based in Coventry. She can be contacted at info@rbmsolicitors.co.uk or telephone: 02476520999