Implications of UK asylum decision

Implications of UK asylum decision

• Taffy Nyawanza: The right to family life

• Taffy Nyawanza: New UK changes to managed migration

• Taffy Nyawanza: UK immigration rules on marriage, domestic servants

• Taffy Nyawanza: Switching from work permit to indefinite stay

• Taffy Nyawanza: Immigration and you

• Taffy Nyawanza: Makosi and the real Big Brother

By Taffy Nyawanza

THE news spread like wildfire.

Zimbabwean failed asylum seekers in the UK had won a reprieve. And yet amidst the euphoria, those of us trawling through the bulky judgement in AA had a nagging feeling that things remained murky and uncertain. This is because whilst the Asylum and Immigration Tribunal (AIT) chastised the Home Office for its handling of the case, it also made clear that the decision could be overturned on appeal.

Readers will remember that the case in question was to resolve the issue of whether rejected asylum seekers are at risk of persecution on their return to Zimbabwe. This was a test case brought by the Refugee Legal Centre, the independent legal organisation that provides free legal representation to asylum seekers and refugees. Test cases by nature are meant to establish a legal precedent or clarify a difficult point of law. In this case, the difficult question was what to do with the thousands of Zimbabweans in no man’s land, having exhausted all available avenues of the law but unreturnable because of the continuing political meltdown in Zimbabwe.

The matter was a remittal from the High Court which had been persuaded to halt Judicial Review proceedings on the basis that there might be a finding of fact to support the claim that failed asylum seekers are in danger of persecution merely for having claimed asylum in the UK. The AIT was the appropriate forum for this duel, it being the specialist court that examines questions of fact and allows oral evidence to be adduced. Each side had its trump card; the Appellant had in his corner the revered historian, Professor Terrence Ranger; the Home Office had a Field Report compiled by their team which visited Zimbabwe between the 4th and the 10th November 2005.

The Appellant in AA was not relying on any merit in his claim, in fact there was none. In the words of the court, ‘he relies instead solely on the consequences arising from the fact that the claim has been made and rejected.” To spice up the matter, not only had the Appellant failed on the merits, he had lied repeatedly on key aspects of his claim, and thereby damaged his credibility. And to complete the caricature of the asylum seeker so despised by the right-wing media, the Appellant did not even know what MDC stands for, the organisation he claimed to belong to and the basis of his entire claim. The Court considered at the outset that his was a ‘distinctly unattractive argument’ for the simple reason that it would literally open the floodgates to thousands upon thousands of fraudulent asylum seekers who would use the opportunity to ‘cynically manipulate the asylum system’.

Be that as it may, the court was of the view that it was bound by legal principles and precedent. Firstly, the universally recognised principle that a claimant can found a claim on the basis of events arising after leaving his country of origin. Secondly, the long held principle which recognises that an asylum seeker whose case has failed on the merits, may subsequently seek asylum on the grounds that the making of the asylum application itself has created the possibility of persecution for a Refugee Convention reason, namely political opinion. Thirdly, a recent Court of Appeal case which held that the benefits of the Refugee Convention were available to those who qualified for them regardless of any question of good faith or bad faith.

All the Appellant had to do therefore in order to succeed in this claim was to establish a real risk of harm to returned asylum seekers by evidence and logic. He did not need to show that all, or even nearly all, returned asylum seekers would be harmed. In this regard, the AIT’s task was therefore to make a finding on the facts and an assessment of whether this risk existed.

The AIT duly proceeded to examine the evidence before it. It then confirmed that rejected asylum seekers were at risk of ill-treatment on return. The court made heavy weather of the process of return and reception in Zimbabwe which it said differed from other countries with which it was familiar. In Zimbabwe, the dreaded CIO is used to screen returnees thereby raising the likelihood of ill-treatment.
But what does this judgement mean for the thousands others in AA’s position? First, we need to understand why the Home Office lost this case because that has a bearing on whether they can do anything about the decision or not. The Home Office lost because of 3 crucial errors on their part.

Firstly, they sent to Zimbabwe a team from its Policy Unit, in-spite of the fact that they have at their disposal the Country of Origin and Information Unit with the competence for field investigations. The fact that this more independent body was not used buttressed the possibility that the investigators had an existing policy in mind rather than the discovery of new facts.

Secondly, the investigation was considered not to be sufficiently thorough; in spite of the resources and the level of the investigation, it revealed nothing of what actually happens when someone is handed over at the Harare airport. The team did not investigate this aspect at all.

Thirdly, the Home Office did not rely on individual cases to prove allegations of real risk in Harare. They argued from silence - asserting that if returned asylum seekers were at risk of persecution, the NGOs on the ground would have heard about it. This was considered to be a mistaken view. Because of their resources and information at their disposal, their failure to trace and monitor any individual complainants was considered ‘exceedingly surprising’.

The Court then ruled that the Appellant had therefore become a refugee with all the attendant benefits. The Tribunal however left the Home Office a window of opportunity. It pointed out the 3 areas that could be rectified by the Home Office and which could be re-visited by the Court. The Court added that had these matters been handled differently, it might have led to different conclusion.

Firstly, the Home Office was told that a different view might have been taken if the UK government had made arrangements that those forcibly removed to Zimbabwe were not distinguishable on arrival, as this aroused adverse interest from the CIO and the possibility of persecution. The UK government was chided for its lack of interest in what happened to those handed over to the Zimbabwean authorities. If it had provided information that no harm befell them, the decision would have turned out differently.

Secondly, the Home Office went into the hearing having already conceded that once a finding that ill-treatment of returned asylum seekers was likely, then this would amount to a Refugee Convention reason, being imputed political opinion, and lead to a grant of refugee status.

Thirdly, the Court wondered aloud whether it was time to re-visit the decision that established the principle that the benefits of the Refugee Convention were available to those who qualified for them regardless of any question of good faith or bad faith. The court also wondered whether perhaps the alternative European Convention for Human Rights (EHCR) would adequately cover such persons, without giving them the benefits of refugee status. Was this an invitation to litigate? It does seem so to me.

In the round therefore, these are points which can be rectified by the Home Office. This raises the real possibility of an appeal by the Home Office.
What are the implications of the decision for a failed asylum seeker from Zimbabwe then?

I advise strongly that you approach your solicitor as a matter of urgency. This applies to people who have already made an asylum claim, or are awaiting a decision. It applies to those bringing an appeal, or who are having a reconsideration of their cases. It applies to those who have received a final and negative determination. It applies as well to those who were returned to Zimbabwe, got mistreated and having come to the UK for a second time, have made another claim. The decision may also mean the possibility of a reconsideration of NASS support for hard cases involving end of the line individuals who cannot be removed.

This in no way suggests that there will be a positive outcome in all cases. It merely suggests that a window may have opened because of the AA decision which has the added authority of being a Country Guidance case, meaning that in the absence of new evidence, Immigration Judges will be bound to follow its ruling. This window may close soon if the Home Office appeals successfully.

In any event, readers will remember from previous discussions that where a positive decision is received and refugee status conferred, anyone granted asylum and recognised as a refugee in the UK from 30 August 2005 onwards will no longer obtain Indefinite Leave to Remain (ILR). They will now get 5 years leave to remain which will be kept under active review. If circumstances change in Zimbabwe, this may be revoked. This remains the Home Office’s trump card.

Taffy Nyawanza is accredited by the OISC and writes in his personal capacity. He can be contacted at profettaffy@yahoo.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
JOIN THE DEBATE ON THIS ARTICLE ON THE NEWZIMBABWE.COM FORUMS
shapiro@newzimbabwe.com