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Court of Appeal says no deportations against Zimbabweans
By Taffy
Nyawanza
Posted to the web:
09/10/2008 14;30:23
THE Court of Appeal has recently promulgated a
very brief judgment but with huge implications for people facing deportation
proceedings.
The decision is not anonymised, which is quite unusual in view of current guidance in asylum and human rights matters. It is the case of Regina v Kingdom Mvumi.
Mr Mvumi, a Zimbabwean national, arrived in the UK in November 2002. His asylum claim had been refused by the Home Office and by the Tribunal and he had in fact exhausted all his appeal rights.
He was still in the UK, however, because of the policy that there are will be no removals to Zimbabwe for the time being due to the deteriorating political situation there.
As with many others in his position, Mr Mvumi was in this legal limbo which meant he was not removable, but could not work. He resorted to buying and using fake documents to obtain work, including a passport, national insurance card, identity badges and a bank account in a different name.
This way, Mr Mvumi was able to register for work with an employment agency. He was caught, prosecuted, and sentenced to a custodial sentence of eight months on the three counts of possession of an identity document with intent, fraud by making a false representation, and possession of an article for the purposes of fraud.
The matter came to the Court of Appeal as an appeal against sentence. Mr Mvumi did not seek to challenge the length of the sentence of imprisonment, but sought to have the recommendation for deportation set aside.
The Court of Appeal allowed the appeal and quashed the deportation order. The court made it clear that this was not a case where an order for deportation was necessary, nor indeed appropriate.
I want to highlight
the two reasons on which this decision was based.
Firstly, the sentencing judge against whose judgement Mr Mvumi was appealing
and who had made the order for deportation, had not given reasons why
he considered that this was an appropriate case for deportation. The
court referred to authority for its proposition that sentencing judges
should give their reasons for making an order for deportation.
It is therefore important for persons who have an order for deportation against them, or have had their sentencing judges recommend deportation, to check whether there are specific reasons given for such an order or recommendation. If no reasons are given, then the recommendation or order for deportation is not sustainable in law and should simply be set aside.
Secondly, and perhaps more importantly, the deportation order in Mvumi was set aside simply because of the current ministerial policy that that there will be no removals of failed asylum seekers to Zimbabwe for the moment.
The court’s exact words were that, “…an order for deportation against a Zimbabwean is absurd given the current policy relating to those whose home country is Zimbabwe."
This is a clear and useful decision. It helps that it is a Court of Appeal decision and has immediate binding effect on the lower courts and tribunals. As long as the current policy to not return Zimbabweans remains in place, all deportation orders are, therefore, unlawful.
But perhaps this is a pyrrhic victory for two reasons. It does not address the legal limbo which means that Zimbabweans still cannot work, even though they may not be returned. Hence the continuous and desperate resort to false documents by people in Mvumi’s position.
There is also the fact that the quashing of deportation orders will at best be temporary and it is conceivable that if enforced returns to Zimbabwe resume, whenever this maybe, deportation proceedings could be resuscitated by the Home Secretary.
For now, it looks like the UK policy on Zimbabwe remains unchanged. The latest statement by the Foreign Secretary David Miliband in the House of Commons on October 6, 2008, seems to confirm this. He said:
“The House will have seen news of the political agreement reached between the parties in Harare on 15 September to form an interim coalition Administration. Three weeks have passed since that moment and still no cabinet has been appointed. The positive momentum generated by the signature is fast evaporating, Zimbabwe's economic and political situation is deteriorating, inflation continues to mount and the people of Zimbabwe are still suffering."
Just finally, with respect to permission to work for Zimbabweans, there has been no official position as far as I know on this and the position remains unclear. There is no harm in making a written application for permission to work. We also know that a number of Zimbabweans have been invited to Asylum Registration Card (ARC) interview. Some of these people already hold ARC cards, a fact which has fuelled speculation that the Home Office may be willing to amend the conditions of Temporary Admission to reflect permission to work.
Until this happens to the first batch of people, however, it is too early to tell what the official position is, and speculation is not useful.
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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