IMMIGRATION lawyers and Zimbabwean nationals in the UK with unresolved asylum claims will temporarily breathe a sigh of relief following news that the Court of Appeal has quashed the case of EM & Others, which was the leading case in Zimbabwean Asylum cases.
EM & Others succeeded the case of RN which had far more favourable conclusions and resulted in huge numbers of Zimbabweans coming out of the shadow to claim asylum at the time.
But the sigh of relief will be temporary as the case has been remitted or sent back to the Upper Tribunal where it will be heard again, but this time featuring evidence that the Home Office had failed to disclose to the Upper Tribunal.
EM was a particularly unwelcome decision in that it significantly raised the level of profile that a claimant needed to show to prove that they faced a real risk of persecutory treatment upon return to Zimbabwe.
The Court of Appeal’s decision is mainly based on the Home Office’s repeated failure to disclose evidence to the court and to the Appellants in the matter during the court process. The evidence related to the Foreign and Commonwealth Office’s (FCO) assessment of the political situation in Zimbabwe from August 1, 2010. When the Home Office finally disclosed the evidence, it was redacted or had certain parts deleted. In fact, the Secretary of State for Foreign and Commonwealth Affairs went as far as issuing a Public Interest Immunity Certificate on December 21, 2010, to justify the failure or refusal to present this evidence to the Upper Tribunal during the court process.
The Upper Tribunal went on decide the case without all the evidence that it needed to come to its decision. One would have thought that it was patently clear that such an approach rendered the proceedings unfair, as it meant that the Appellants’ representatives were hamstrung through a failure to afford them an opportunity to subject evidence which the Secretary of State was seeking to rely on to rigorous scrutiny in a matter dealing with rights of such a fundamental character as the 1951 UN Convention on Refugees and the European Convention on Human Rights.
The Court of Appeal has also concluded that the evidence which has now been disclosed is of such significance that it could be argued that had it been presented to the Upper Tribunal, they might have formed a different view pertaining to what the situation at the time of elections could have been, as well as what was likely to happen during those elections.
The Appeal Judges have also reasoned that the Upper Tribunal’s approach in EM – of according substantial weight to evidence from anonymous sources amounted to an error of law, as it contradicted two cases known as Sufi and Elmr – decided in the European Court of Human Rights which provide guidance to be followed in similar matters.
We can draw the following conclusions from the Court of Appeal’s latest decision:
# The current case of EM and Others (Returnees) Zimbabwe CG  UKUT 98(IAC) is no longer the current Country Guidance case on Zimbabwean asylum claims. It however still remains relevant in relation to the very helpful guidance it provides in Article 8 cases for not only Zimbabweans but migrants of other nationalities who have got children and have been resident in the UK for certain periods of time.
# New Guidance is likely to emerge when the matter is heard in the Upper Tribunal again. This decision has thus created an uncertain legal terrain which needs to be navigated carefully.
# Depending on one’s facts and evidence, the new decision may provide a basis for submitting Fresh Claims.
# Existing claims and appeals are likely to merit further, supplementary representations.
# The case of RN (Returnees) Zimbabwe CG  UKAIT 00083 and other previous Zimbabwean country guidance cases will provide a framework for resolving new and current asylum claims and appeals.
# In practical terms, the Home Office is likely to continue asserting that, given the passage of time since RN was promulgated, improved political, social and economic conditions prevailing in Zimbabwe necessarily entail that the case no longer constitutes reliable guidance.
# In this context, the prevailing country or “objective evidence” plus a claimant or appellant’s credibility will likely define one’s fate. The forthcoming, post GNU elections are inevitably going to be a subject of intense focus.
# Those who are politically initiated will also note the dramatic political lurch to the right throughout Europe which has culminated in huge swathes of the population being anti-immigration. It is thus of great concern that the new case will be heard in this poisoned environment.
# The above dynamic is best illustrated by a June 18 news article in the Daily Telegraph which is a clearly naked, shameful attempt to interfere with the administration of Justice through “naming and shaming” judges who make certain decisions (in this case ruling in favour of migrants) – so that they become apprehensive about doing so.
In conclusion, whilst the quashing of EM & Others is a very welcome development given its harsh and unpalatable conclusions – caution needs to be exercised as, owing to the points raised above, there is no guarantee that the next guidance will not be as uncompromising if not worse.
Brighton Mutebuka is the Principal at Mutebuka & Co Immigration Lawyers in Leeds. He is also registered as a Solicitor with the Law Society of England and Wales and with the OISC. He can be contacted on firstname.lastname@example.org, Tel. 01132473962 or mobile: 07852344915 visit our website at www.mutebukaimmigrationlawyers.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 as a result of the use of this information