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If Makoni becomes President...
By Taffy
Nyawanza
THE euphoria and hype surrounding Simba
Makoni’s entry into the Zimbabwean presidential race is understandable.
Makoni is a former government minister and until February 5, he was
a member of the Zanu PF politburo.
He broke ranks and defied the ageing Mugabe by formally announcing his bid for high office. He is widely considered to present the most credible and viable alternative to the current rot and decay. He is also a candidate who might legitimately be able to claim that he would be ready to govern from day one.
Will he win though? Too many obstacles seem to stand in his way. He does not have the luxury of time, the requisite grassroots alliances and many doubt whether he is made of the sterner stuff necessary to conduct business in the political cauldron and rough and tumble that is Zimbabwe. But the enduring seduction of the political theatre is its unpredictability, the possibility of the impossible.
I am not about to turn this column into another discourse on the politics in Zimbabwe. Plenty others do a fine job already. My brief is to discuss the implications of Makoni’s win for the thousands of Zimbabwean refugees resident in the UK.
If Makoni wins the election, and the current regime is finally pushed out of office, that would arguably amount to a significant change of circumstances which may trigger a review of refugee status. ‘Significant change’ is a technical concept in UK refugee law which became prominent with the key changes that occurred in 2005.
With effect from August 30, 2005, refugee leave (whether granted at initial decision or following an allowed appeal), is now granted for 5 years. Before that, of course, refugees obtained Indefinite Leave to Remain (ILR) immediately. Similarly, Humanitarian Protection is now granted for 5 years. Humanitarian Protection is the status granted to those who are not refugees; but are recognised to be at risk of torture or inhuman or degrading treatment in their home country.
When these changes were introduced, the justification was that the new policy would ensure that permanent settlement is granted only to those refugees who, after five years, are still eligible to remain in the UK. It was argued that this was is in line with the Refugee Convention which provides that the protection of the Convention will cease to apply in specified circumstances where there is no longer a need for it.
These changes came about as a result of the new five-year plan on asylum and immigration entitled ‘Controlling our borders: Making migration work for Britain’ which the UK government announced in February 2005. It was part of the UK government’s so-called ‘New Asylum Model’ (NAM) which provides that most categories of immigrants, including refugees, should be subject to a minimum five year residency requirement before becoming eligible for permanent settlement.
At the end of the 5 years, a person with refugee status or HP may apply for ILR. Both refugee and HP status are dealt with, or reviewed in the same way (so please read refugee status to include HP for review purposes).
At application for ILR, there should ordinarily not be a full review of the individual’s continued entitlement to refugee status. The Home Office says that there are circumstances, however, in which a person’s entitlement to refugee status may be reviewed. These may be:
(i) where the
actions of the individual indicate that he is no longer entitled to
refugee status, such as returning to visit, or live in the country he
came from;
(ii) where a significant and non-temporary change in the country
of his origin causes ministers to order a review of the grants of refugee
leave to persons from that country; and
(iii) where a person fails to apply for ILR before his refugee leave
expired, there will be a review of whether the individual still requires
protection.
(iv) Where it is discovered that the individual deceived the authorities
in order to be recognised as a refugee;
(v) Where it is discovered that the individual committed certain serious
crimes before applying for asylum; or
(vi) Where there is reason to believe that the individual is a danger
to the security of the United Kingdom or has been convicted of a particularly
serious crime.
Apart from this, and perhaps more importantly in view of what could happen on March 29, 2008, in Zimbabwe, the Home Office position is that a review need not wait until the 5 years are up; a review of refugee status may be triggered where, among other reasons, there has been a significant and non-temporary change in the conditions in a particular country.
It does appear, however, that the decision to review refugee leave is not one that will be taken lightly, judging by the apparent in-built safeguards.
Firstly, it would have to be shown that a country has improved sufficiently to justify the review of the status of those refugees potentially affected by that change. The change must be non-temporary. A regime change without more might not suffice.
Secondly, the decision is an executive decision (taken by ministers) but will be communicated to Parliament, ostensibly to be scrutinised in open debate.
Thirdly, the decision will be taken only after consultation with the United Nations’ specialist organ for refugees, the UNHCR.
Fourthly, even with all of the above, the Home Office will still be obliged to conduct reviews of refugee status within the scope of the ministerial statement on a case by case basis.
In addition, when the decision to actively review a case is made, the individual will be written to and given the reasons for the decision. He will be entitled to explain reasons why he believes that he should be allowed to stay in the United Kingdom. A right of appeal should also be available to allow an independent assessment by the judiciary.
Conceivably, and I could be wrong, if Makoni wins the plebiscite, a whole lot of Zimbabweans would at least consider returning home to build up what Mugabe has destroyed. But there will be many others who have thrown in their lot with the British and now consider this their home.
What would be their options if their refugee status was revoked?
Many will have acquired an education, or still be in college, or got married. It should be possible to make an application to remain in the UK in those other immigration capacities. The Home Office specifically accept that where, following review, a person no longer requires, or is no longer entitled to, protection in the UK, the refugee status will be withdrawn and leave curtailed under the Immigration Rules, unless he qualifies for leave on another basis, in which case leave may be varied. Note the use of ‘may’ though.
Family life and /or a private life may also be viable routes. The argument would be that in the period that the individual has been in the UK, he has so established and socialised himself and his family in UK life that to return him to his country of origin would be unreasonable.
Finally, with respect to the looming election, it is important to remember that case-law accepts as a fact that there is what is called an ‘election cycle’ with respect to Zimbabwe asylum cases. The Tribunal in SM (Zimbabwe) accepted that there is a heightened risk during election periods and their immediate aftermath and confirms that this is a pattern which has been followed since 2000. It states that before an election there is intimidation of real or perceived opposition supporters particularly teachers and civil servants. It also confirms that following an election the phenomenon of post-election retribution is well documented. This is a key argument that can be deployed in ongoing Zimbabwean asylum claims.
Whichever way one looks at it, the forthcoming elections will be interesting for a variety of reasons.
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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