THIS is an update on recent news reports concerning current developments in the British government’s approach to failed asylum seekers from Zimbabwe.
Those that have been removed or deported are primarily failed asylum seekers who have exhausted their appeal rights and been found to lack credibility in the UK courts. Following this process, they have been granted what is known as “Temporary Admission” or permission to stay in the UK. This is mainly because exhaustion of one’s appeal rights has not necessarily been met with swift or immediate removal. In fact, such a sequence of events has been extremely rare.
To some extent, in Zimbabwean asylum and immigration cases this has been mainly due to the historical policy of the previous UK government of placing a “moratorium” on removals to Zimbabwe because of the social, political, economic, and humanitarian conditions obtaining at the time.
“Temporary Admission” comes with “Reporting Conditions”, which is a regime of dates that the person concerned has to show up at a “Reporting Centre” to confirm that they are still complying with the conditions of their temporary admission and have not absconded.
The UK government announced a resumption in removals following the Tribunal’s decision in the case of EM & Others in April 2011. This was mainly because the court had concluded that there was a marked improvement in the country conditions in Zimbabwe since the case of RN. The court went on to set a rigorous test for applicants to prove when claiming asylum.
The court’s decision therefore provided the newly-formed UK coalition government with a desperately needed moral and legal framework within which to justify the change in policy. This is a change that had been widely expected given the current political climate and the underpinnings of the Conservatives’ immigration policy during the campaign period. This shift in policy was not, however, immediately followed by a dramatic commencement of removals or deportations at a massive scale. Perhaps the idea was, understandably, not to cause immediate alarm and panic to those presenting themselves at reporting centres across the British Isles in line with their reporting conditions.
On June 18, 2012, the Court of Appeal quashed the case of EM & Others. On July 25, 2012, the Supreme Court made a landmark decision in RT (Zimbabwe) and others  UKSC 38, confirming the decision that had been reached by the Court of Appeal on November 18, 2010.
One would have thought that the quashing of the EM & Others would have meant the reversal of the UK government’s policy on removals or deportations given that this was mainly the basis upon which resumption had been justified. The fact that this did not and has not taken place is not only unfortunate, but rather, lamentably, lends credence to the proposition that other reasons than “juristic” ones are at play.
The conclusions and the legal principles reached in the case of RT are ground breaking and wide-reaching and thus not only limited to Zimbabwean asylum cases. In short, the case affirms the fundamental right to not hold a political opinion or to be politically neutral. This put paid to the Home Office’s self-serving attempts to argue that those who do not hold political opinions can always attempt to evade or avoid persecution from despotic regimes by acting “discreetly”.
By any definition, the Home Office got a “bloodied juristic nose” within the context of the decisions reached in the cases of EM& RT, particularly if these are read in line with the case of RN. It is opined that the combined scale of the legal setbacks and uncertainty created by these developments would have been, at the very least, reasonably expected to trigger a reconsideration of the policy of removals or deportations to Zimbabwe.
Instead, inexplicably but not unexpectedly, the UK government’s approach has been to “double down” on removals, as the Americans would say. It is what we say in legal parlance “gross unreasonableness”, as there is no connection between the action taken and current legal developments.
Within the context of Zimbabwean asylum and immigration cases, the cumulative effects of the conclusions reached in the above cases mean that, even those who previously exhausted their appeal rights may arguably now be able to submit fresh claims.
Given the combined effects of how long the moratorium on suspension of removals to Zimbabwe lasted and the “ingenuity” of some of those concerned in stalling or avoiding removal or discovery, a significant proportion of them now have family life in the UK in the form of children and partners. Article 8 of the ECHR has been extensively covered by colleagues in previous articles.
Further, there were a lot of instances in which judges who presided over appeals in the immediate aftermath of the promulgation of the case of RN simply dismissed them on the basis that the claimant is “not a witness of truth” and could simply lie to Zanu PF to prove loyalty. The judges in RT have held such an approach to be flawed and emphasised that the key test is simply whether or not one can demonstrate loyalty. There is however a caveat in that the Judges ruled that those found to lack credibility may fail in their claims for lack of proof or because they come from a “milieu” or area in which Zanu PF loyalty can be assumed, eg Uzumba Maramba Pfungwe!
This is significant if viewed in light of paragraphs 263 and 264 of RN which concluded that the reduction in violence after the June 2008 Presidential election and the formation of the Unity Government was not sufficient to lead to a conclusion that there had been fundamental change in Zimbabwe. The court went on to hold that such a change could only occur if there was a real transfer of power to a new political order. Such a development has clearly not taken place.
Advice to those who are currently reporting or those afraid to contact the authorities for fear of removal
Seek independent legal advice about your case as early as possible. Chances are, if you have been reporting for quite some time without submitting a claim, the Home Office are (rightly so) likely to conclude that you have got no legal basis for staying in the UK.
The removal process is rather swift once you are detained. What happens is that you are caught “unawares” at a local reporting centre without any of your belongings. You are then swiftly transferred to a detention centre somewhere and issued with removal directions.
Trying to find legal representatives at this stage is extremely difficult. Firstly, detention work is highly involving. It involves travel to where the detainee is held at short notice. Further, urgent steps will need to be made to locate the detainee’s file of papers from former representatives, some of whom may have closed, (eg the RLC & IAS). Lawyers have to literally stop work on some of their files to accommodate this kind of work and for this reason, it costs more to instruct a lawyer at this stage of the process.
This is worsened by the fact that the work relating to Judicial Reviews is extremely cumbersome and administratively time consuming. There are a lot of court forms that need to be filled.
Without access to a client’s file of papers, it becomes very difficult to represent someone effectively. More time is also needed to gather evidence from family, friends and other sources in the UK. The quality of the evidence covered always, invariably, makes a difference.
Both the courts and the Home Office are likely to take last minute applications as desperate, contrived and without merit. Consequently, this breeds scepticism and cynicism and may mean that some other meritorious claims whose prospects of success are borderline may be unfairly dismissed.
“Striking first” will likely mean that you have more time to choose who acts for you and thus avoid dodgy or unaccredited representatives. Further, you are likely to have more time to prepare for your case which increases the chances of success.
Judges and lawyers are under extreme “pressure”. In my previous article, I made reference to a new culture of “naming and shaming” judges who were perceived to be “soft” and prone to making positive judgements and how detrimental this was to the administration of justice in the UK.
Unfortunately, lawyers have now joined this list. As you will note, judges have now threatened to “name and shame” lawyers who do not comply with certain obligations in removal cases. Thus, whilst on this occasion the lawyers in question rightly deserved censure, it follows that the net result is that Lawyers will play it “safe” and exercise a lot of caution through increasing the threshold on what kind of cases to take in removal cases, thereby reducing access to legal representation from people who are vulnerable and need it the most.
Those who have not claimed asylum need to appreciate that the decision in RT means that, even though they may not be politically active, their asylum claims may still be successful as long as they are found to be telling the truth and lived in the UK for quite some time. Indeed in our experience asylum claimants who have taken this route have, in recent times, been successful and quite quickly too.
This is likely to be attributable to the uncertainty that is currently obtaining at the Home Office in relation to the boundaries to be applied in interpreting RN, RT and the significance of the quashing of EM & Others by the Court of Appeal.
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 email@example.com, 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