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TAFFY NYAWANZA: YOU AND THE LAW

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By Taffy Nyawanza

IT HAS been brought to our attention that the Home Office may soon resume enforced removals of failed asylum seekers to Zimbabwe.

We have been shown what appears to be a standard letter from the Border and Immigration Agency of the Home Office. The letter gives notice of impending enforcement action. It states in part that “…the Border and Immigration Agency is expecting shortly to be able to enforce returns to Zimbabwe”.

We understand that those who have made asylum claims are also receiving refusal letters with that standard statement. In effect of course, the majority of refusals, at least in the Zimbabwean context, should come with the right of an in-country appeal. If such an appeal is lodged in time, an individual cannot be removed until all the appeal rights have been exhausted.

For failed asylum seekers generally, however, enforced returns should follow as a matter of course unless there is a moratorium on returns as has been the case for Zimbabweans.

In the Zimbabwean context, if it is true that there is now an official position to return failed asylum seekers to Zimbabwe, the timing is as unfortunate as it is baffling. This is because there is a high stakes election which is scheduled for March 29, 2008. There has already been wide publicity of the rising political temperature, Mugabe’s ominous threats to the opposition, as well as the beatings of opposition activists and teachers.

The main Country Guidance cases, in particular SM (Zimbabwe), already confirm the existence of an ‘election cycle’ with reference to the heightened risk during election periods and the period immediately after the election. The tribunal has also accepted that this is a pattern which has been followed since 2000 and 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, there is well documented evidence of the post-election retribution on political opponents.

So what the options to failed asylum seekers?

Where enforcement action is threatened, it is important to act fast. It might be useful to contact an MP and request urgent representations. There are also pressure groups and other specialised organisations that may be useful in raising publicity. One such an organisation is the National Coalition of Anti-Deportation Campaigns (NCADC) which has a huge mailing list of partner-activists and solicitors who may be able to assist at short notice.

But the obvious option for individuals who do not want to return to Zimbabwe is to lodge a fresh asylum claim. A fresh asylum claim is defined in Rule 353 of the Immigration Rules which states that;

“When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”

It is important therefore, to demonstrate in submissions that the materials submitted are significantly different from the material that has previously been considered. This could be by reference to a change in the law, or a change in country circumstances, or individual circumstances.

An example would be a failed asylum seeker whose last determination accepted that he was a teacher in Zimbabwe but a low level MDC activist and therefore not at risk. If such a decision pre-dates 2005, SM (Zimbabwe) and other recent case law could be used to argue that there is now new evidence that teachers face a risk of persecution on return to Zimbabwe for simply being a teacher.


Another typical example could be that since a refusal, an individual has become active in a civic organisation or opposition party the UK. The latest Country Guidance case of HS accepts that the Central Intelligence Organisation is known to act extra-territorially and has infiltrated civic organisations in the UK with the obvious aim of passing on intelligence to their Zimbabwe masters. An obvious example is the speed with which the Herald, Zanu PF’s mouthpiece, reported a recent pro-Simba Makoni meeting which took place in London.

The important thing about a fresh claim is that an individual who has made further submissions to the Home Office cannot be returned to their country of origin before the Secretary of State has considered the submissions made in terms of paragraph 353 or otherwise.

It should, therefore, be enough to produce proof that a fresh claim has been submitted in order to stop removal. The Home Office can, however, decide that the evidence submitted does not amount to a fresh claim. A lot depends, therefore, on the quality of the evidence submitted, and the presentation of the supporting arguments.

Ultimately, what is useful is that case law has interpreted Rule 353 as imposing a modest test that the fresh claim has to meet before it becomes a fresh claim. There are three requirements to the test:

One: The fresh claim must have a realistic prospect of success, but not more than that.

Two: There is no requirement that the evidence submitted must make the Home Office achieve certainty of what is alleged, but only to think that there is a real risk of the applicant being persecuted on return.

Three: The Home Office, the adjudicator and the court, must exercise what is called ‘anxious scrutiny’ of the material presented to them because if the preliminary decision is made incorrectly, it may lead to the applicant’s exposure to persecution.

This appears to be a very low threshold and easy test to meet and you would think that the majority of fresh applications should easily pass the first hurdle. The reality is somewhat different, hence the need for representation.

An acceptance by the Home Office that an application is a fresh asylum claim is of course just the beginning. The asylum process will then begin all over, with interviews, NASS entitlement, decisions and the entire appeal process kicking in.

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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