Updates, commentary, training and advice on immigration and asylum law

Zimbabwe gay guidance case


Older content is locked

A great deal of time and effort goes into producing the information on Free Movement, become a member of Free Movement to get unlimited access to all articles, and much, much more


By becoming a member of Free Movement, you not only support the hard-work that goes into maintaining the website, but get access to premium features;

  • Single login for personal use
  • FREE downloads of Free Movement ebooks
  • Access to all Free Movement blog content
  • Access to all our online training materials
  • Access to our busy forums
  • Downloadable CPD certificates

The latest Country Guidance case on Zimbabwe finds, in essence, that despite vociferous and violent pronouncements about homosexuality at the highest level in that country, Zimbabwe is a safe haven for lesbians and gays. The case is LZ (homosexuals) Zimbabwe CG [2011] UKUT 00487 (IAC) and it was reported on 26 January 2012.

In some ways the case appears at first blush to represent simple common sense: each case must be argued on its own facts. However, the effect of a Country Guidance case is more pernicious than may first appear. It introduces a starting presumption as to the outcome of the case which must be rebutted by the party whose case is negatively affected by the case in question. Practice Direction 12 for the tribunal states that Country Guidance cases are authoritative and that it will likely be an error of law not to follow a Country Guidance case.

The case highlights long held concerns about the entire principle of having Country Guidance cases. Compare the following two sentences from paragraphs 17 and 24:

“Before us, the appellant did not rely only on general risk to homosexuals, or to female homosexuals.”


“[The appellant’s lawyer] invited us to allow the appeal primarily because all homosexuals, male and female, are at risk of persecution throughout Zimbabwe.”

The Appellant’s primary case was said to be about the individualised risk to her alone, based on the unique facts of her own case. That might be described as the traditional approach to arguing a legal case – many might be surprised to learn there is any other approach, in fact. However, the appellant’s representative argued and presented considerable evidence that an entire class of persons, lesbians and gays in Zimbabwe, were refugees. Only one of that class of persons was represented before the tribunal but the lawyer took it on himself to argue the case for everyone, no doubt encouraged by directions from the tribunal to do so.

I can myself fairly easily think of arguments concerning the evidence put forward by the Home Office in this case but I have no idea if these arguments were put to the tribunal. Why was the evidence of Women of Zimbabwe Arise (WOZA) considered to be relevant and given any weight, for example? In what way were they qualified to give evidence about the treatment of lesbians or others and why would they not suffer from the same deep rooted homophobia as the rest of Zimbabwean society?

The determination is open to legal criticism (where is the evidence to support the findings, apart from anything else?) and an appeal might normally be expected. But here too arises another problem with Country Guidance cases: the particular appellant actually succeeded and will be recognised as a refugee. She therefore cannot appeal, and the negative generalised conclusions that had nothing to do with her case will now stand for several years creating a presumption in other cases.

This type of Country Guidance case is anathema to the common law system of precedent and offends against the general prohibition on judgments in rem. The tribunal should not be reporting such cases.

It is unfair to be excessively critical of the lawyer or lawyers in this case because plenty of others do the same. Being involved in a Country Guidance case raises one’s profile and it is exciting, opening up all sorts of legal interest and enabling generous Legal Services Commission funding for expert evidence and other preparatory work. However, these Country Guidance cases where the arguments and evidence is extraneous to the clients best case are very different to traditional  test cases where one is forced to argue a novel point of law because the client’s case depends on it or with the limited number of Country Guidance cases where, like those on Somalia, the client’s best case is actually the generalised risk.

I was once memorably (to me!) and I thought rather unfairly described as ‘wholly disingenuous’ in a reported determination when I resisted the tribunal’s attempts to force me to make generalised arguments beyond the scope of the particular facts of my client’s case. It continues to surprise and depress me that others don’t do the same.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

Relevant articles chosen for you
Picture of Free Movement

Free Movement

The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


One Response

  1. I have some views on country guidance cases, based on my involvement as a supporter of a married couple claiming asylum. In relation to their country of origin , in 2010 a new country guidance case was reported, this in part concerned changes to the law in their country of origin, designed to give proper legal protection to women. My couple had an expert report from the leading UK authority on the laws of the country of origin. The expert was scathing about the effects of the new legislation “on the ground” because in their country of origin the rule of law was not overly evident. The 2010 CG case was later than this expert report. In the CG case the court found that the new law had significantly improved the situation for women. In the CG case the expert input on laws in the country of origin came from an academic who , from my reading of the situation, was of inferior status to the aforementioned expert. The negative CG case was one of the factors which caused the couple’s legal representatives ( who are very highly regarded ) to suggest that they stood little chance of success in the AIC. In the event the couple’s claim succeeded in the AIC. In fact in the determination, the judge completely failed to mention the CG case. When I looked at the determination I was fearful that the HD would spot this ommision and appeal. However they did not. I am guessing that they did not due to incompetence. The CG case was not the only factor militating against success at the AIC, additionally when the couple had made a first asylum claim several years earlier the judge had made many negative findings of fact against the couple. In the determination from the succesful appeal the judge pointed out that he could not challenge these findings of fact where no new evidence was presented. New evidence was presented on one of the points and the judge did override the original finding of fact. However, reading between the lines, I get the strong impression that the judge did believe all of their account. So I guess the judge decided to ignore the CG case and see if the HD would do anything about it. As far as I can see many/most CG cases are negative decisions for the claimants. I guess the HD might say that the number of CG cases is not a large enough to allow statistical analysis to be carried out rigorously. My whole impression of the asylum system from dealing with this case is that the HD and ( perhaps to a lesser degree ) the courts are quite random in their approach, and driven by political pressure. To my mind that is why a UK bill of rights can never be a substitute being able to take cases to the ECtHR.