Landmark AIT Ruling for Zim Asylum Seekers

A THREE-MEMBER panel of the Asylum and Immigration Tribunal has promulgated a case called RN (Zimbabwe). RN has been designated the latest Zimbabwean Country Guidance case.

RN arrived in the United Kingdom in January 2006 and claimed asylum the following day. She held no political beliefs and had engaged in no political activities but had in the past worked as a teacher. Her claim was that as someone who did not actively support Zanu PF, she would be assumed to be a supporter of the opposition, particularly because she would be returning after spending some time in the United Kingdom. She had also fallen out with her abusive former boyfriend before fleeing Zimbabwe.

The appeal was heard over five days, and had to be especially re-convened after the agreement between President Robert Mugabe and opposition leader Morgan Tsvangirai on a power sharing arrangement was signed.

The Home Office took the very unusual step of not disputing any of the country witnesses’ evidence, and indeed, did not cross-examine those witnesses at all. This was in part because of the impeccable credentials of the witnesses.

The Home Office’s real argument was that this was not a good time for a new Guidance Case because the situation in Zimbabwe kept changing. The Tribunal disagreed, and said that there had been a significant deterioration in country conditions for ordinary Zimbabweans, and sufficient change in those country conditions to require a departure from existing country guidance. That there continues to be change in the country conditions was not a reason for the Tribunal to avoid giving guidance.

The RN decision acknowledged that country conditions in Zimbabwe are volatile and extremely fluid and may change significantly shortly. The decision, therefore, takes the very latest political developments into account. In summary, RN says the following:

1. The latest country evidence establishes that anyone who is unable to demonstrate support for or loyalty to the regime or Zanu PF will be at risk. This position significantly goes beyond the current risk categories, and in particular the previous position that one would be at risk on return if identified as a member or supporter of the Movement for Democratic Change (MDC) or as an active critic or other opponent of the regime. This is because the regime now seeks to repress by violent and discriminatory means anyone who is a seen as a potential supporter of the opposition, not just those identified as supporters of the opposition.

2. Not everyone will be able to meet this requirement (SEE 1). In other words, not everyone is anti-Zanu PF. Ultimately, this may come down to a simple assessment of credibility in each case.

3. Anyone who has lived in the United Kingdom for a significant period of time and has made an unsuccessful asylum claim may be at risk; and these factors are capable of giving rise to an enhanced risk. A returnee from the UK and a newcomer to an area would be very likely to encounter enquiries as to his background, history and associations which would be likely to expose him.

4. The Zimbabwean regime no longer attempts to identify particular individuals for persecution; whole communities are being punished for the recent electoral outcome in an attempt to change the political landscape for the future and to eliminate the MDC support base.

5. Teachers have once again become targets for persecution in Zimbabwe. The fact of being a teacher or having been a teacher in the past again is capable of raising an enhanced risk, whether or not a person was a polling officer, because when encountered, it will not be known what a particular teacher did or did not do in another area.

6. The evidence shows that the well trained and well resourced CIO remain responsible for monitoring returns to Harare airport. The evidence confirms the continuation of the two stage interrogation process identified in previous case-law whereby the CIO attempt to isolate MDC activists and supporters, or those of adverse interest, for purposes of referring such people for further interrogation at which stage they will be at real risk of persecution.

7. The power sharing agreement signed on 15th September 2008 in Harare has as of now not resulted in the Mugabe regime ceding any real power to the MDC. In any event, it is too early to say that that will remove the real risk of serious harm identified for anyone now returned to Zimbabwe who is not able to demonstrate allegiance to or association with the Zimbabwean regime.

8. It is possible that there may be a radical change in Zimbabwe whereby, for example, the MDC may obtain real control of the police. If that happens, and the country evidence supports it, the lower Tribunals may very well depart from this Country Guidance case pending the promulgation of a new Guidance case.

9. With respect to claims made on the basis of the terrible conditions in Zimbabwe, the Tribunal refused to depart from the HS position. This is that poor as they are, the country conditions do not establish that the generality of those returning to Zimbabwe today would be subjected to conditions so grave as to breach their human rights, although this does not mean that each such claim must fail. Each case must be considered on its own facts.

The Tribunal allowed RN’s appeal. The Tribunal underlined her profile as someone who had previously worked as a teacher, had claimed asylum in the UK and would, therefore, be unable to demonstrate that she had voted for or supported the ruling party. The tribunal stated that it is reasonably likely that her identity would become apparent, whether she remained in her home area or sought to establish herself elsewhere.

This is a huge outcome. From the attitude of the Home Office at the hearing, it is very unlikely that the Home Office will be challenging this decision, unless there is a radical development in the political dynamics, such as Mugabe capitulating to the MDC. Many people think pigs may fly before that happens.

As always, if you think the issues raised in this article affect you, you must seek legal advice.

Taffy Nyawanza works for Bake & Co Solicitors of Birmingham. He can be contacted on info@bakesolicitors.co.uk, ph. 0121 616 5025 or visit Bake & Co Solicitors’ website at www.bakesolicitors.co.uk

Source : Article Published in New Zimbabwe on Tuesday 18 November 2008.