EM asylum judgment: underlining the positives

FOR some time now, representatives dealing with Zimbabwean matters had waited with baited breath for the promulgation of the country guidance case of EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC).

That wait ended on Monday when the Upper Tribunal of the Immigration and Asylum Chamber delivered its judgment.

The initial reaction is for one to lament the restriction of the risk categories from the very accommodating range in the previous country guidance case of RN to the current levels under EM so helpfully set out by my colleague Taffy Nyawanza in his usual expeditious manner on Monday.

However, a closer examination of the evidence leads one to applaud a very significant development in the manner in which the evidence presented was assessed by the Tribunal in this case.

The Tribunal showed an understanding of the situation developing in Zimbabwe and demonstrated a willingness to go through a massive amount of evidence, 724 separate pieces of evidence, in addition to hearing oral evidence. The legal boffins amongst the readers will chide me saying but that is what is to be expected of any immigration country guidance case. But therein is a lesson to be learnt, and more keenly to be considered very seriously by clients and practitioners alike. The reason for this will be found in the manner in which the Tribunal has considered issues such as the different implications of the different geographical spheres of persecution.

The Tribunal considered evidence up to the end of January 2011. In the decision, the Tribunal engages in a full analysis of the disruptions in Harare and Bulawayo as a result of the constitutional outreach meetings and the clashes between the MDC and Zanu PF supporters in Epworth and Mbare. The Tribunal accepts that an individual, even with no or minimal political profile, may find it difficult to return to Manicaland, Mashonaland East, Mashonaland Central, the Midlands and Masvingo.

However, there is a rider to this as the Tribunal states that one’s “home area” is not necessarily the same as that which we understand it to be. Thus, “…the fact that a person feels an attachment to a rural area and even has relatives living there does not mean that that area falls to be treated as the home area …” Asylum seekers would be familiar with having been asked to complete subjective details about one’s last place of residence, and the different places that one lived.

The significance of this type of evidence is how the Tribunal recommends a very subjective assessment of each case. Over and over again, the tribunal emphasises that although it is setting up broad categories, each case must be examined on its on facts. Thus, the background evidence for constituencies, profiling recent events or happenings in a particular area, putting forward as much historical and current evidence becomes critical.

The Tribunal showed a propensity to go into the nitty gritty of such evidence, even isolating certain instances for particular mention such as the interesting case of the Muzarabani villager who offered to sell his chickens in order to pay for international election observers, stating that his community could not face a repetition of 2008 when “SADC observers were relaxing in hotels while we got beaten here”.

Even whilst accepting that Matabeleland North and South were, on the evidence provided, safe areas, the Tribunal stated that “even in Matabeleland North and Matabeleland South, however, there may be occasional instances of a particular village or other area being under the sway of a Zanu PF chief, or the like.” The proof, one supposes, is in the evidence led. One must stoop to the very closest subjective evidence and give a full account of one’s options for relocation in Zimbabwe, fully particularising the presence or lack thereof of family members.

In relation to the impending elections, the Tribunal does not rule out that the cycle of violence may start again and urges that a naïve assessment of the situation, given the appearance of calm in some areas of Zimbabwe, should be avoided. Unfortunately, the Tribunal is confined to considering evidence before it and cannot speculate about what may happen once an election has been called. Any unfortunate descent into the levels of violence of 2008, or of sufficient deterioration, will have to form the basis of a request for a new country guidance case.

The Tribunal has very helpfully created a safety net in paragraph 265 stating: “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 Home Office is cautioned against ignoring such a change in circumstances as the Tribunal stated that: “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.”

Readers requiring further explanation are asked to contact their lawyer or representative for a fuller explanation of how this case affects or changes their situation. A point to note is that the Home Office has indicated for sometime now that it intends to commence enforced removals to Zimbabwe. The promulgation of the country guidance case was holding things back. It is important to seek full advice on one’s current position.

Yvonne Gwashawanhu is a solicitor at Bake & Co Solicitors. She can be contacted on email ygwashawanhu@bakesolicitors.co.uk or mobile 07817885736