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Latest developments in UK asylum cases
By Taffy
Nyawanza
Posted to
the web: 23/01/2009 15:53:57
A NUMBER of Zimbabweans who have had their cases
held up at the Asylum and Immigration Tribunal may find the following
information useful.
In a typical scenario, a Zimbabwean asylum claimant will have won his asylum appeal in the period around 2005 on the limited AA and LK grounds, irrespective of credibility findings, and in fact, even where the claimant was completely disbelieved by the court.
This is because the AA legal position was that any Zimbabwean unwilling to return to Zimbabwe voluntarily was a refugee simply for having made an unsuccessful asylum claim. This literally meant every Zimbabwean. As you may remember, the Home Office appealed that decision, and in 2006 the Court of Appeal ruled that the Tribunal should reconsider. As a result, the Home Office were emboldened to appeal a lot of the decisions allowed by the Tribunal on the limited AA and LK basis.
Most cases have
been stuck in that traffic jam for years. This is because the tribunal
did not want to proceed to the ‘2nd Stage’ and deal with
Zimbabwean cases until the outcome in the test cases in AA2
and HS was known. The AA2 and HS
cases were meant to resolve, among other issues, the important issue
of whether there is risk on return to Zimbabwe simply for having claimed
asylum in the UK.
As it happened, the litigation over this issue went back and forth,
until on November 19, 2008, the case of RN (Zimbabwe) v SSHD
was promulgated by the Tribunal, bringing some measure of finality at
last to the lengthy Zimbabwean asylum litigation.
What is happening now?
Since RN was promulgated, there has been a lot of movement on the reconsideration front. A number of Zimbabwean cases are now being listed for what is called ‘Stage 1’ reconsideration hearing at Field House in London. This is meant to be an assessment of whether there are errors of law in the initial determination.
The Senior Immigration Judge has the choice at that stage of either making the decision that there is an error of law in the first asylum decision, and making a new decision outright. Alternatively, he may decide that the matter should be referred to another hearing to resolve the issues.
In some cases, he may even say the initial decision was not wrong at all and there are no errors of law. This is not likely in Zimbabwean cases because of the wide reach of the RN decision.
Hearings are being listed in courts 81 and 82 at Field House. On the occasions that I have been there for hearings, there have been at least 20 cases in each of the two courts. It also seems that the very same judges who sat on the RN case are doing the ‘Stage 1’ hearings. I think that this is very helpful because they are very much up to speed with the issues. It goes without saying that in spite of their great learning, not every judge will be familiar with the Zimbabwean situation.
When you get a Notice of Hearing therefore, and you get into court, the Senior Judge will, as a starting point, be keen to know what was accepted by the Home Office in their original refusal letter, or what the last determination by the Tribunal found in terms of the claim made.
Determinations are not usually easy to follow, but what you want to focus on is the paragraph that is usually headed ‘Findings of Fact/Credibility Findings’. Sadly, most findings are not findings at all. They are more like musings where the adjudicator or Immigration judge prevaricates and does not commit himself.
A useful determination would say for instance: “I do not accept that the appellant was as prominent in the MDC as he claims. I do find, however, that he was a low level MDC activist. I also make a finding of fact that he was a teacher in Zimbabwe.”
If you have a determination that reads like that, you are generally speaking 90% towards a positive final decision. This is because the case of RN then kicks in. The relevant paragraph for the above scenario will be the paragraph which says that teachers and ex-teachers are particularly at risk in Zimbabwe.
It is then up to the Home Office Presenting Officer (HOPO) to either argue that even that is not enough to prove risk, or to accept that the matter cannot be contested, in which event the Judge might then allow the appeal outright.
On the day that I was in Court, there was a HOPO who adopted a common sense approach and essentially conceded in straight forward cases, usually involving teachers and low level MDC activists. On a different day, there was a not so reasonable HOPO who contested every case.
In the cases where credibility is in issue, and the appellant was not believed on any aspect of his claim, the Judge will invariably refer the matter for a full re-hearing on all the issues. If your matter is referred to a re-hearing, you will have a choice of having it at Field House, or somewhere nearer to where you live.
Usually, in reconsideration appeals, new issues and evidence should not be introduced without good reason. However, in light of the peculiar circumstances of the Zimbabwe situation, and because the country conditions have dramatically changed over a few years, the judges have been accepting that new evidence can be introduced. This can be evidence of political engagement in the UK, or the development of a family life in the UK.
It would not be a very wise thing to go back to court a second time and re-argue the same case, nuts and bolts. You are likely to be met by a creature called Devaseelan, in short a legal argument that the same case should not be re-heard.
The important thing is that at last there is some real movement in these cases. On a rough assessment, Field House is going through about 40 cases a day, which is about 200 in a week. This is easily a thousand cases being resolved one way or the other each month.
A final thought. If you are invited to a hearing at Field House, tuck into a good breakfast and be prepared for a long wait. The general unwritten rule of thumb in the Tribunal is that in spite of the order of the list, barristers are heard first, then lawyers, then the unrepresented. The hearing itself is usually over in about 10 minutes.
Good luck.
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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