Implications of AIT judgment in HS (Zimbabwe)

Implications of AIT judgment in HS (Zimbabwe)

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By Taffy Nyawanza

AT 295 chunky paragraphs, and 2 annexures, the long awaited Asylum and Immigration Tribunal (AIT) decision in the HS (Zimbabwe) country guidance case is a lengthy and meaty decision.

I want to try and break it down and suggest what it means for Zimbabwean asylum seekers in the short and long term.

The decision is of course the latest in long-winded legal proceedings beginning with the first AA decision which ambitiously stated that there would be a real risk of harm to failed asylum seekers returned to Zimbabwe simply for having claimed asylum in the UK, regardless of any question of good faith or bad faith.

In the present proceedings in HS, the two issues before the Tribunal, as identified by the three-member panel at paragraph 24, were whether the Appellant would be at risk simply for having made an asylum claim in the UK (the court having already decided that she did not have a political profile at all), and whether the country conditions in Zimbabwe were so poor as to found a claim on that basis alone.

Beginning at paragraph 27, the Tribunal sets out a history of the AA litigation. There had been a moratorium on enforced returns to Harare which was lifted by the British government between November 16, 2004, and July 7, 2005. A country guidance case was then brought to court and announced on May 11, 2005. That case is the case of SM, whose importance I shall return to.

The SM case delineated a number of specific risk categories, including teachers and MDC activists amongst others, and made some vital findings of fact. These included the finding that there is no general risk on return for simply having claimed asylum in the UK, but that there is hostility and suspicion towards returnees from the UK, and there is in place a two-stage interrogation process by the dreaded Central Intelligence Organisation (CIO) at Harare airport. SM also made reference to the cyclical pattern of violence around election times. This is important in view of the proposed combined elections in March 2008.

Following the SM case, and reports of ill-treatment of returnees, removals to Harare were once more suspended with effect from the July 7, 2005. Further AA litigation followed, resulting in the promulgation of the ambitious AA (1) case. This was the case where the Tribunal, while expressing its concern at what it saw as a blatant and cynical abuse of the asylum system, made a finding that there would be risk of persecution for involuntary returnees to Harare simply for having claimed asylum in the UK.

Meanwhile, the Tribunal in that decision gave signals to the Home Office that it would be willing to re-visit this generous decision if the Home Office addressed three areas of concern; namely the fact that the Home Office had sent to Zimbabwe a team from the Home Office Policy Unit instead of the more independent Country of Origin and Information Unit who had the competence for field investigations, buttressing the impression that the investigators had an existing policy in mind rather than the discovery of new facts.

Secondly, the Home Office did not do enough to protect failed asylum seekers from the Zimbabwean authorities and did not carry out sufficient investigations of what actually happens when someone is handed over to the authorities at Harare airport.

Thirdly, the Home Office did not rely on individual cases to prove allegations of real risk in Harare. They argued that if returned asylum seekers were at risk of persecution, then non governmental organisations on the ground would have heard about it.

Clearly therefore, all three of these ‘errors’ were well within the Home Office’s powers to rectify. Indeed the Home Office promptly appealed to the Court of Appeal and the Court of Appeal overturned AA (1) in AA and LK and asked the Tribunal to re-assess the evidence.

In the proceedings known as AA (2), the Tribunal examined a large body of evidence, including the circumstances of 39 returnees and concluded that there could be no risk simply for having claimed asylum in the UK. The importance of that decision is that, whilst being adverse, it confirmed the correctness of the SM risk categories and added two more, being those with a military history (I do not see why police officers should not be included here) as well as those with outstanding and unresolved criminal issues. It also confirmed the two-stage interrogation for all involuntary returnees carried out by the CIO at Harare airport.

The Court of Appeal then found that the evidence of two vital witnesses with respect to the two-stage interrogation process had not been properly considered in AA (2) and so remitted the case to the Tribunal for another re-assessment of the evidence.

These are the proceedings which culminated in HS.

In HS, the Tribunal assessed the witnesses and the country evidence. One of the more interesting findings is at paragraph 58; that the current economic conditions ARE NOT a deliberate aim of government policy. But even more interesting is the suggestion at paragraph 67 that there could very well be a case to be made out that the dire living conditions in Zimbabwe could in certain circumstances breach an individual’s human rights. This has to be read in the context of paragraph 62 however, in order to appreciate the difficulty of making such a claim.

The Tribunal also implicitly re-confirmed the general reliability of Professor Terrence Ranger but refused to accept his opinion that the Zimbabwean government ‘criminalises’ anyone connected with Britain. His particular difficulty was that he had himself travelled to Zimbabwe and been admitted without any difficulties in spite of his reputation as a government critic. The Tribunal also capitalised on Professor Ranger’s interesting analysis of the booming trade in food parcels and cash remittances to Zimbabwe.

With respect to the two witnesses whose evidence needed re-examination, the Tribunal made findings that their evidence was unreliable and subjective. The Tribunal noted at paragraph 206 that one of the witnesses was himself an MDC executive thus putting the objectivity of his evidence in question.

Unfortunately, other witness evidence of what happens to returnees beyond the airport was mostly third-hand and therefore considered unreliable. This, as Sarah Harland of the Zimbabwe Association protested, underscores the difficulties of collating quality evidence from returnees.

Unsurprisingly therefore, the Tribunal made a finding that there would be no general risk on return simply for having claimed asylum in the UK.

But the HS decision also re-affirms the risk categories already identified in SM and expanded in the AA (2) case as well as adding one risk category of its own, being those people associated with civil society organisations (NGO’s) who have attracted adverse attention of the authorities. These therefore are the current recognised risk categories.

A further important finding of fact is tucked away at paragraph 104 of the HS determination where the Tribunal acknowledges that the CIO operate in the UK in order to infiltrate groups and identify supporters and activists of the opposition (MDC).

What are the implications of this decision then?

There is likely to be an announcement regarding returns of failed asylum seekers to Zimbabwe. This is subject to what HS and her legal team decide to do in the short term. An appeal might very well buy time.

People whose asylum appeals were allowed on the basis of AA are very likely to have their appeals overturned where the Home Office appealed in time. There is nothing precluding a fresh claim, however, where engagement with opposition party politics in the UK can credibly be demonstrated within the meaning of the country guidance.

There is also the possibility of arguing the ‘cyclical election violence’ point in view of the planned 2008 combined elections.

Apart from this, there is always paragraph 67.

Taffy Nyawanza is accredited by the OISC and writes in his personal capacity. He can be contacted at profettaffy@yahoo.co.uk

Disclaimer: This article only provides general information and guidance on immigration law. It is not intended to replace the advice or services of a solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information.

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