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New Zimbabwe Country Guidance out


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The long awaited new Country Guidance case on Zimbabwe is finally out: EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC) (BAILII link here). It includes interesting guidance not only on Zimbabwean asylum claims but also on dealing with cases where children have been resident for seven years or more.

The headnote is as follows:

1.  Evaluating the position as at the end of January 2011, the country guidance at paragraph 267 of this determination replaces that in RN (Returnees) Zimbabwe CG [2008] UKAIT 00083, as follows:

(1)  As a general matter, there is significantly less politically motivated violence in Zimbabwe, compared with the situation considered by the AIT in RN.  In particular, the evidence does not show that, as a general matter, the return of a failed asylum seeker from the United Kingdom, having no significant MDC profile, would result in that person facing a real risk of having to demonstrate loyalty to the ZANU-PF.

(2) The position is, however, likely to be otherwise in the case of a person without ZANU-PF connections, returning from the United Kingdom after a significant absence to a rural area of Zimbabwe, other than Matabeleland North or Matabeleland South. Such a person may well find it difficult to avoid adverse attention, amounting to serious ill-treatment, from ZANU-PF authority figures and those they control.  The adverse attention may well involve a requirement to demonstrate loyalty to ZANU-PF, with the prospect of serious harm in the event of failure.  Persons who have shown themselves not to be favourably disposed to ZANU-PF are entitled to international protection, whether or not they could and would do whatever might be necessary to demonstrate such loyalty (RT (Zimbabwe) [2010] EWCA Civ 1285).

(3)  The situation is not uniform across the relevant rural areas and there may be reasons why a particular individual, although at first sight appearing to fall within the category described in the preceding paragraph, in reality does not do so. For example, the evidence might disclose that, in the home village, ZANU-PF power structures or other means of coercion are weak or absent.

(4)  In general, a returnee from the United Kingdom to rural Matabeleland North or Matabeleland South is highly unlikely to face significant difficulty from ZANU-PF elements, including the security forces, even if the returnee is a MDC member or supporter. A person may, however, be able to show that his or her village or area is one that, unusually, is under the sway of a ZANU-PF chief, or the like.

(5)  A returnee to Harare will in general face no significant difficulties, if going to a low-density or medium-density area. Whilst the socio-economic situation in high-density areas is more challenging, in general a person without ZANU-PF connections will not face significant problems there (including a “loyalty test”), unless he or she has a significant MDC profile, which might cause him or her to feature on a list of those targeted for harassment, or would otherwise engage in political activities likely to attract the adverse attention of ZANU-PF.

(6)  A returnee to Bulawayo will in general not suffer the adverse attention of ZANU-PF, including the security forces, even if he or she has a significant MDC profile.

(7)  The issue of what is a person’s home for the purposes of internal relocation is to be decided as a matter of fact and is not necessarily to be determined by reference to the place a person from Zimbabwe regards as his or her rural homeland. As a general matter, it is unlikely that a person with a well-founded fear of persecution in a major urban centre such as Harare will have a viable internal relocation alternative to a rural area in the Eastern provinces. Relocation to Matabeleland (including Bulawayo) may be negated by discrimination, where the returnee is Shona.

(8)   Internal relocation from a rural area to Harare or (subject to what we have just said) Bulawayo is, in general, more realistic; but the socio-economic circumstances in which persons are reasonably likely to find themselves will need to be considered, in order to determine whether it would be unreasonable or unduly harsh to expect them to relocate.

(9) The economy of Zimbabwe has markedly improved since the period considered in RN. The replacement of the Zimbabwean currency by the US dollar and the South African rand has ended the recent hyperinflation. The availability of food and other goods in shops has likewise improved, as has the availability of utilities in Harare. Although these improvements are not being felt by everyone, with 15% of the population still requiring food aid, there has not been any deterioration in the humanitarian situation since late 2008. Zimbabwe has a large informal economy, ranging from street traders to home-based enterprises, which (depending on the circumstances) returnees may be expected to enter.

(10) As was the position in RN, those who are or have been teachers require to have their cases determined on the basis that this fact places them in an enhanced or heightened risk category, the significance of which will need to be assessed on an individual basis.

(11) In certain cases, persons found to be seriously lacking in credibility may properly be found as a result to have failed to show a reasonable likelihood (a) that they would not, in fact, be regarded, on return, as aligned with ZANU-PF and/or (b) that they would be returning to a socio-economic milieu in which problems with ZANU-PF will arise. This important point was identified in RN, and remains valid.

2.  Guidance is also given on the assessment of the private and family life of a Zimbabwean national present in the United Kingdom for over 11 years with children born and/or resident most of their lives in the United Kingdom.

3.  In the absence of countervailing factors, residence of over 7 years with children well-integrated into the educational system in the United Kingdom, is an indicator that the welfare of the child favours regularisation of the status of mother and children.

I haven’t had time to read through the 138 pages in detail yet. Hopefully the admonishment of the Court of Appeal in PO (Nigeria) v Secretary of State for the Home Department [2011] EWCA Civ 132 regarding accuracy of headnoting has been heeded, even if the advice of the Senior President, Lord Justice Carnwath, on the sheer length of these Country Guideline cases clearly has not!

Regarding the Article 8 case and the children, there were three children in one of the joined cases, aged 13, 9 and 6. The youngest two had been born in the UK and the oldest since 2002. The mother had been resident for coming on 12 years and, as the tribunal say, it was understandable that she did not want to return to Zimbabwe from 2001 onwards, after her original leave expired and the situation in Zimbabwe deteriorated. The tribunal reiterates that the welfare of children is a primary consideration irrespective of the nationality of the parents or children. Lastly, in the very final paragraph of the main determination, Mr Justice Blake says as follows regarding the old seven year policy:

“In the absence of any other policy guidance from the Secretary of State, it remains legitimate for Immigration Judges to give some regard to the previous policy that seven years residence by a child under 18 would afford a basis for regularising the position of the child and parent in the absence of conduct reasons to the contrary, in making a judicial assessment of whether removal is proportionate to the legitimate aim having regard to the best interests of the child.”

Seven years is thereby sort of reinstated as a yardstick. Many lawyers considered that the abolition of the seven year policy should have been advantageous to children because it meant a careful case by case assessment which might well be more generous than the blanket approach. However, in practice some immigration judges started to refuse all cases involving long residence by children because of the absence of any policy on length of residence. Any sensible lawyer or judge would probably agree that a sharply defined length of residence test is too black and white and fails to comply with the obligation to examine cases on their full circumstances. It does at least provide some sort of protection against harsh judicial decision making, though. For better or for worse, the seven year threshold does look like it is back, albeit in a ‘softer’ and more flexible form than previously.

Finally, good work by Shivani Jegarajah, occasional contributor to this blog, fellow tenant at Renaissance Chambers and barrister for one of the successful appellants in this case.

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

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9 Responses

  1. Isn’t this really bad timing? The HO constantly chose to “ignore” RN, stating that violence was lower than in the election and post-election period in 2008. But now, as another election period looms on the horizon, what’s to say that the situation won’t, sadly, go back to being similar to that considered in RN? No doubt the HO will now apply this new CG to the letter, no matter what happens later this year.

    1. It is indeed bad timing, i.e. at least a year too late. The RN situation hasn’t existed for a very very long time, and every rep knew it, even as they submitted that it was reflective of the position at the date of hearing.

      As for the election issue, the tribunal deal with, read para 263.

    2. I would hardly say that Zimbabwe is as rosy as you imply. The House of Lords certainly don’t seem to agree (http://www.theyworkforyou.com/lords/?id=2011-03-10a.1797.0&s=asylum#g1801.0)

      ““We need to be conscious that the security situation in Zimbabwe has not improved greatly and that refugees and asylum seekers should therefore not be pressurised to return home prematurely.”

      ““[The regime] is deploying tens of thousands of militia all over the country in preparation for attacks on the MDC and disruption of the preparations that the opposition are making for the election.”

      This is from a debate that took place only last week. I really fear for those that are inevitably about to be forced to return to that environment. Alas, the UKBA don’t share my concerns!

    3. Where did I imply that it was rosy? It hasn’t been our position that all is well and all can be returned over the past two years since the new government was formed. It has been that the levels of violence detailed in RN have not been there, and that the test in RN therefore should not apply.

      Rather, ZWE should have been treated as with any other country – if there is evidence that the authorities persecute opposition activists and evidence that an asylum claimant is known by the authorities to be such, then they get asylum. This was the previous test under SM.

      The RN test continuing months and months after it should have done has allowed hundreds, and probably thousands, of people who were never more than economic migrants to get asylum.

      Be here as an overstayer for 5-10 years, working illegally with a forged ILR vignette in your PPT (which of course you report missing to the police the week before you rock up at Croydon to claim), add a bit of blatantly insincere and late in the day ‘sur place’ activity (Look at me at the vigil, wearing a ROHR T-shirt I had to pay £240 for, a whole week before my asylum interview!) and Bob was your uncle! (And occasionally, he really was…)

      Does this sound like any of the clients you have argued for in the last couple of years, Colin?!

    4. I haven’t done many Zimbabwean cases of late, David. I’ve met a few very committed Zimbawean activists over the years, though, and activists from other countries, who the Home Office has claimed were manufacturing claims. It is all but impossible to prove definitively (the unofficial standard of proof for the Home Office and some judges) that a person is serious about such activism, though. I personally do not find it hard to believe that a Zimbabwean abroad might want a change of government there. I want a change of government there and I’m not even from the country and don’t have to deal with the consequences of Mugabe’s actions.

      I’ve always thought that the CG system is fatally flawed. I edited the IAS publication that attacked the CG system and I’ve desperately argued in individual cases that the particular client should not be made into a CG martyr because, given the way many CG cases go against the individual appellant it could not possibly be in their best interests. It did make me feel very angry indeed, though, when Woolas said after the RN result that the Home Office thought a blanket approach to asylum cases was wrong – it only seemed to be wrong when the case went the wrong way, he never complained about all the blanket rulings that favoured the Home Office.

    5. Para 264 is a very contentious claim, especially the risk assessment of future possible violence in the upcoming elections given Mugabe’s track record.

      From how quickly violence in Tunisia, Libya, Egypt & Yemen has escalated, I conclude the NCG for Zimbabwe has a weak link in it regarding elections this year.

      Sadly, I think JP’s last sentence will be shown to contain a lot of truth.

  2. Well, the whole saga is in lots of ways a strong argument against the Country Guideline system. The determinations are too long and complicated, the tribunal regularly ties itself in knots and the system is far too slow to respond to a developing situation. On the other hand, where the tribunal has attempted to do shorter CG decisions they have been successfully appealed to the Court of Appeal for missing out bits of evidence. When I was still at IAS we published a critique of the CG system (still on their website), and while some of the criticisms have been addressed the more fundamental ones have not. The whole idea of certainty in the context of asylum claims is a bit of a nonsense in the first place.

    I feel a full post coming on, with PO (Nigeria) as the starting point…