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UK asylum decision throws lifeline for Zimbabwe teachers
By Taffy
Nyawanza
ON DECEMBER 5, 2007, the UK Court of Appeal passed down an important
and generous decision that may give rise to viable fresh claims, apart
from assisting with live claims. The decision is the case of SC
(Zimbabwe) v Secretary of State for the Home Department [2007] EWCA
Civ 1278.
In this case, the appellant, known as SC, approached the Court of Appeal after an unsuccessful re-consideration appeal.
Some of the pertinent facts about the appellant were that she had arrived in the UK as a visitor initially, then switched to a student visa until 2002, after which her visa ran out and she overstayed for two years before claiming asylum. She was also HIV+ and it had been accepted that without medication, her life expectancy would be 6 months. More importantly for the hearing, she had been a teacher in Zimbabwe.
In the first appeal, the Tribunal had accepted that the appellant was a teacher and concluded that she would therefore be at risk. The Tribunal reached this decision because it accepted that “the background material indicates clearly that teachers are readily identified as members of the MDC and are frequently mistreated as such.” This was in-spite of the fact that the appellant was herself not a member of the MDC.
The Home office appealed this generous finding. On re-consideration, the Tribunal found for the Home Office and said that the first Tribunal had made an error in law because it had reached its conclusion on the premise that it is unsafe to return any teacher to Zimbabwe.
SC approached the Court of Appeal which differed with the Re-consideration Tribunal and stated that it was clear that the appeal had been allowed by the first judge, not because SC was a teacher, but because she might be perceived to be an MDC supporter because she was a teacher.
The Court of Appeal also accepted that the background material clearly indicates that teachers are readily identified as members of the MDC and are frequently mistreated as such.
The Court of Appeal made a specific finding that SC would probably be identified as a teacher from the endorsement in her passport and once the authorities at the airport in Harare identified her as a teacher, it would be obvious or readily ascertainable that she was not a Zanu PF-supporting teacher.
What are the implications of this decision?
SC is not a country guidance case and does not purport to supersede the case of SM [2005] UK IAT 100, which is the operative Country Guidance case which identifies the risk categories as confirmed and expanded in the latest Country Guidance case of HS.
However, SC is a
decision of the Court of Appeal and therefore has the authority and
impact of a higher court decision.
It is important to read the case as being specific to the peculiar facts
of the appellant that came before the Court of Appeal but with wider
applicable findings emerging from it.
The main finding in SC is that where a returnee might be recognised as being, or having been a teacher in Zimbabwe, then there would necessarily be a perception that they are an MDC supporter. Indeed, although this is a much more generous finding, it is not an entirely revolutionary finding because of what SM says about teachers, i.e that there does continue to be a risk for teachers with an actual or perceived political profile of support for the MDC.
Taken together, therefore, it seems to me that this case might be useful particularly where a documented returnee might have a passport with an endorsement that they are teachers.
It is important to note that in the SM case, there is confirmation of the two-stage interrogation process for all involuntary returnees carried out by the CIO at Harare airport. It could, therefore, be argued that even an undocumented returnee whose past as a teacher would not be immediately apparent could be at risk because of this interrogation process which might conceivably reveal a teaching past.
Indeed in SM, the Tribunal specifically stated that returnees from the UK to Zimbabwe are regarded with contempt and suspicion on return and do face a very hostile atmosphere and that whilst all returnees may not be at real risk of persecution, they are liable to have their background and circumstances carefully scrutinised by the authorities.
At its highest, the SC case therefore seems to suggest that it is sufficient to be demonstratably a teacher in order to establish risk on return, which seems to be wider than what was contemplated by the SM case. At the very least, SC is very useful arsenal in related claims.
Taffy Nyawanza works for Bake & Co Solicitors of Birmingham. He can be contacted on info@bakesolicitors.co.uk, ph. 0121 616 5025 or visit Bake & Co Solicitors’ website at www.bakesolicitors.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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