The two main issues that were addressed in the HS case are:

- Whether the appellant would be at risk on return on account of having made an unsuccessful claim for asylum in the United Kingdom.
- Whether the general country conditions are themselves sufficiently poor as to enable the appellant to resist removal to Zimbabwe on that account alone.

The Tribunal stated that they do not accept either that all those seen as having claimed asylum in the UK will be thought to be supporters of the MDC on that basis alone. The Tribunal reaffirmed the risk categories set out in the case of SM and added another risk category of those associated with the civil society organisations that have attracted adverse interest from the Zimbabwean authorities will face the same level of risk as those perceived to be political opponents.

In simple terms, this means that not every person who claimed asylum in the UK will be deemed to be a refugee and will face the risk of persecution if returned to Zimbabwe. This position had been stated in the earlier case of SM and that is the position that the Tribunal has been adopting. This decision in the HS case does not come as a surprise. It has simply established the country guidance in this matter.

GENERAL COUNTRY CONDITIONS

The comments of the judges in relation to the general conditions in Zimbabwe are interesting. The legal team in the HS case argued that the general country conditions in Zimbabwe are now so bad that there would be an infringement of her rights under article 3 of the ECHR if she were required to return.

The Tribunal did not accept that the current economic crises and near collapsed infrastructure is a deliberate, intended consequence of the actions of the government. The Tribunal stated that the evidence does not establish that the current country conditions are the intended aim as opposed to the unintended consequence of government policy. It was further accepted that poor living conditions are capable of raising an issue under article 3 if they reach the minimum level of severity.

The learned judges stated that not all the people that are returned to Zimbabwe will face living conditions sufficiently severe to reach the article 3 threshold. Each case must be considered on its own merits. There may be some people whose living conditions are sufficiently desperate to establish the required minimum level of severity necessary to engage article 3. The evidence indicates that some have no housing, income, access to basic services including healthcare and education, as well as no dependable source of drinking water or adequate supply of food or basic shelter.

In HS’s case, the Tribunal held that they were not satisfied that removing her to Zimbabwe would cause an infringement of the United Kingdom’s obligations under Article 3 on account of the general country conditions or the living conditions that she would be returned to.

This however does not mean that every case will fail. Each case will be determined on its own merits. The role of an individual’s legal representative will be to distinguish their case from that of HS and invoke an article 3 argument regarding the general country conditions to their individual circumstances. It all depends on the circumstances of the case.

REMOVALS TO ZIMBABWE

Is the Borders and Immigration Agency (BIA) already removing failed asylum seekers? Since the decision of HS was promulgated on November 23, I personally have not heard of any removals that have taken place nor have any been reported in the press. The BIA has not made any official announcements to state that they will recommence removals to Zimbabwe.

The BIA may recommence removals or they may not immediately do so. I am unable to say definitively. The Refugee Council have not made any announcements with regard to whether they will appeal this decision and on what grounds. What is certain however is that the BIA is proposing to make life very difficult for failed asylum seekers and illegal immigrants? There are two laws that have been proposed which will directly affect failed asylum seekers and illegal immigrants and I will discuss these briefly.

CHANGES TO NHS TREATMENT FOR FAILED ASYLUM SEEKERS

The rules say asylum seekers should have free NHS care until their application to stay is refused. Then they may have free care from a GP - although the some reports say many GP surgeries turn them away. It appears that not only are the regulations preventing desperately ill people getting the help they need, they are also preventing people getting the care they are entitled to.

An Arab with bowel cancer was admitted to hospital as an emergency because of uncontrolled bleeding. But once the hospital discovered he was a refused asylum seeker, he was billed for thousands of pounds and his operation was cancelled.

There are at least 200,000 failed asylum seekers in Britain - nobody has an exact figure. Around 5,500 qualify for support on various grounds including the inability to leave the UK because of illness or late pregnancy.

The government is now threatening to extend restrictions to primary care, meaning refused asylum seekers would have to pay to see their GP -- something almost all asylum seekers would be unable to do. The Refugee Council is asking MPs to sign up to Early Day Motion 220, which highlights support for their campaign.

Readers should Mail their MPs and ask them to sign the motion as soon as possible before parliament takes a holiday on 18 December. This proposal will make life very difficult for many ill people who cannot afford medical care.

COMPULSORY ID CARDS IN 2008

The Government is setting out new measures to prevent illegal working following a consultation with UK businesses. Under a new system of civil penalties, employers who negligently hire illegal workers could face a maximum fine of £10,000 for each illegal worker found at a business. If employers are found to have knowingly hired illegal workers, they could incur an unlimited fine and be sent to prison.

These measures, which take effect in February, will make it easier than ever before for employers to carry out checks and for the Border and Immigration Agency to deal with non-compliance.

The civil penalties form part of the biggest immigration shake-up for forty years, sitting alongside a programme of changes that will ensure the system is fit for the future. Over the next 12 months, the Agency will also introduce:

- An Australian-style points-based system to make sure only workers with the skills to benefit Britain’s economy come to the UK;

- A single border force bringing together the Border and Immigration Agency, Customs and UK visas providing a tougher, highly visible policing presence at Britain’s ports and airports; and

- Compulsory ID cards for foreign nationals, allowing the UK to know who is here and what they are entitled to.

Home Secretary Jacqui Smith said of the new civil penalties: “By stamping out illegal working we are making the UK a less attractive destination for illegal migration.

“The new civil penalties are a more effective way of dealing with employers who use slipshod or exploitative recruitment methods. Together with the introduction of compulsory identity cards for foreign nationals next year, there can be no excuse for not checking the identity of those applying for jobs.

“By working together with employers and others we have developed a system that delivers the migrants the UK needs, but which also keeps out those that it does not.”

The Border and Immigration Agency undertakes regular enforcement operations against illegal working throughout the UK. Last month 49 people were arrested in a single raid in Chinatown, while an operation in Gateshead led to ten arrests; and 14 people were arrested after an operation at a restaurant in Ipswich.

In 2006 alone, the Agency carried out over 5,200 illegal working operations and removed more than 22,000 people from the UK.

The new measures are part of a broader package of proposals introduced to toughen border controls, increase enforcement activity and enhance joint working with police and other Government agencies in order to tackle illegal immigration and its consequences.

Many failed asylum seekers are not entitled to any benefits and are not allowed to work legally in this country. They are, therefore, pushed underground and are forced to work illegally. There are many reports of people who are being arrested for possessing fake papers and using these to work. Some of these people are literally forced into crime as they are looking for a means of survival and to support the many starving relatives who look to them for support from their home countries. It is not an excuse for committing crime but an explanation of why individuals resort to these methods

The coming years promise to be very difficult for illegal immigrants and failed asylum seekers as the immigration rules and the laws of this country continue to change.

I deal on a daily basis with people who are frustrated with the current situation in this country in that their immigration status is insecure and they are unable to work or study. Furthermore, they are separated from family and loved ones and unable to return to Zimbabwe because of the political and economic climate in that country. It is a case of being stuck between a rock and a hard place. There are no easy answers.

For those who are professionals, it may be advisable to consider moving to countries that are in need of their particular skills e.g. New Zealand, Australia or South Africa. The governments of these countries are in need of migrants in certain areas and it may be worth considering leaving the UK for these greener pastures.

The Immigration Rules themselves have many concessions which I will not discuss in this article but may do so in a future commentary. The difficulty that many foreign nationals have found themselves in is due to lack of proper legal advice and listening to the man on the street. This has left many people in a situation where they have no papers and are living underground, constantly running away from the Immigration Authorities. If you are in such a situation, it is better to seek Legal Advice from the many voluntary organisations that offer advice or from a reputable solicitor.

The impact of the HS decision will only be seen in the next few weeks or months as we see what the Home Office decides to do regarding removals but in the meantime, failed asylum seekers and illegal immigrants should brace themselves for tough times ahead.

Rumbidzai Bvunzawabaya is a solicitor at RBM Solicitors, based in Coventry. She was admitted on the Roll of Solicitors for England and Wales in 2003 and admitted in Zimbabwe in 1998 as a Legal Practitioner. RBM Solicitors are reachable on telephone number: +442476243685