AA immigration case ruling explained

AA immigration case ruling explained

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By Taffy Nyawanza

THE UK Court of Appeal passed down the much anticipated decision in the AA appeal on 12 April 2006. As widely predicted, it was not good news and a fortnight later, judging by the continuous enquiries on the decision, a lot of people remain unclear about its implications and import. To this end, I will attempt a simplified break-down of the key aspects of this somewhat complex decision.

First, a recap of the original decision. The AA litigation arose as a result of the resumption of forced returns of failed asylum seekers to Harare which occurred between 16th November 2004 and the 7th July 2005. As a result of that litigation, the Home Office made the concession to halt removals again pending the final resolution of the AA case in the Court of Appeal. As it turns out, AA is far from being resolved. It is now back with the Tribunal for further hearings.

Readers will remember that the last time we discussed the AA decision, I suggested that the Tribunal, while chastising the Home Office for its handling of removals to Harare, had also given them a lifeline in pointing out aspects which if rectified, could well lead to the overturning of the AA decision. The Tribunal’s main concern then was what it saw as a blatant and cynical abuse of the asylum system. In fact AA himself fitted the bill perfectly, having lied repeatedly on key aspects of his claim and damaging his credibility thereby. He did not even know what MDC stands for, the organisation he claimed to belong to and the basis of his claim.

The Court of Appeal therefore had its work cut out for it. It began by considering the Tribunal’s assessment of the evidence. Significantly perhaps, it accepted the expert evidence of the claimants’ star witness, Professor Terrence Ranger especially with regards to the heavy handedness and brutal tactics of the much maligned CIO. The Court unconditionally accepted that “beatings during interrogation were a fundamental part of CIO practice” and that “the CIO used interrogation, torture and killings to achieve its aims” and “always hunted down opponents of the regime, often using extreme violence”. This in the opinion of the professor, arose because, “the Zimbabwe Government felt more than ever under threat, with calls from Britain, the US and the EU that it should be brought to the Security Council over the clean up operation, with demands from the International Monetary Fund for repayments, and with the threat of suspension by the World Bank”.

The Court of Appeal however went on to decide that the Tribunal must re-hear AA since its initial assessment of the evidence was flawed in that it had failed to recognise that the evidence did not all go one way in favour of the claimants.

It also held that the Tribunal had wrongly failed to distinguish between those who voluntarily returned to Zimbabwe and those who were forced to return by the UK government. Further, that the Tribunal had not explored the distinction (and implications) between involuntary returns of failed asylum-seekers and those who are non-asylum-seekers.

The Court’s position was that the Tribunal had not taken sufficient care in categorising the different returnees to Harare. The Court of Appeal itself came up with 5 categories of passengers who arrived at Harare Airport from the UK: ordinary passengers, overstayers (or others who fell foul of UK immigration laws) who returned voluntarily; failed asylum-seekers who returned voluntarily; overstayers (or others who fell foul of UK immigration laws) who returned involuntarily; and failed asylum-seekers who returned involuntarily.

As a result of these different categories, the concession by the Home Office that if failed Zimbabwean asylum-seekers do as such have a well-founded fear of persecution, this would be for a Convention reason, namely perceived or imputed political opinion, could not be universally applied to all of these categories and needed to be re-visited.

Specifically, the Court was sympathetic to the Home Office’s argument that a person who can voluntarily return in safety to the country of his nationality is not a refugee, notwithstanding that if forcibly returned he would be at risk. Such a person is not outside his home State owing to a well-founded fear of persecution as required by the Refugee Convention.

The question therefore remained whether AA particularly would in fact be safe if he returned voluntarily to Zimbabwe. Whilst accepting that voluntary returnees would not be at risk at the airport, what may happen to a returnee (voluntary or not) beyond the airport remained unresolved and this had not previously been considered by the Tribunal.

Additionally, whether there would be a breach of human rights, in particular Article 3 in a case where the individual refuses to return voluntarily, and whether such an individual would therefore be entitled to humanitarian protection, also needed to be resolved through evidence by the Tribunal according to the Court of Appeal.

It is for these reasons therefore that the Court of Appeal sent back the AA case to the Tribunal for a re-consideration of matters of fact and law, the Tribunal being best suited for this task.

Lastly, the Court considered the LK decision where a Zimbabwean HIV+ lesbian was held to be a refugee on the basis of her homosexuality but additionally, on the basis of the AA country guidance case.

The Court of Appeal decided that the Tribunal was wrong to accept LK's claim to refugee status on both grounds. The reasons given are fairly complex but in simple terms, the Court’s position was that the refugee status of a person like LK (her homosexuality apart) arose entirely from the removal procedures previously in place. Since these had been suspended, the very basis of her asylum claim also fell away. AA of course could not help her, having been held to be wrong in its own right.

This aspect of the decision has a direct impact on people whose refugee status decisions were made on the basis of AA. It follows that they will now have to wait until AA is resolved. As some people will have discovered, there is a difference between the grant of an appeal by the courts and the actual issuance of status papers which is the responsibility of the Secretary of State for the Home Office.

In the meantime, since AA (Zimbabwe) will now be considered again by the Tribunal, a suspension on removals to Zimbabwe is now in place as this newspaper reports elsewhere. The Minister for Immigration, Nationality and Citizenship Mr Tony McNulty has told the House of Commons that, “in line with our original undertaking to the High Court, we will not be enforcing returns to Zimbabwe pending the further hearing the Asylum and Immigration Tribunal is now required to hold.”

The Court ended by saying that in both appeals, they would hear further argument on the appropriate form or forms of relief.

In conclusion and to recap, let us remind ourselves of the key aspects of the AA decision;

1. AA (Zimbabwe) is no longer the Country Guidance case;

2. People whose appeals have been allowed on the basis of AA are unlikely to have status papers given to them by the Secretary of State until AA is fully resolved one way or another.

3. There will be no removals of failed asylum seekers to Harare in the meantime pending the final outcome of AA.

4. The interim legal status of failed asylum seekers remains unclear, hence the invitation by the court to hear argument on the appropriate form or forms of relief.