By Taffy Nyawanza
WE NOW have confirmation that the UK government will not be appealing the recent test-case judgement in RN (Zimbabwe).
The Immigration Advisory Service, who are the instructing solicitors in the matter, have made a media release to this effect. This brings some measure of closure to the lengthy litigation involving Zimbabwean asylum seekers and could mean that a great many cases may now be resolved.
In addition and more importantly, the Home Office has published a new Operational Guidance Note (OGN) on Zimbabwe cases. OGNs are the internal guidance which informs Immigration Officers and case owners in their assessments of claims from particular countries.
The latest one on Zimbabwe, dated the 1st December 2008, quotes copiously from the RN case and concludes by stating that:
"Zimbabweans who have given a credible account and established that on return they would be unable to demonstrate that they are supporters of, or loyal to, Zanu PF should be treated as being at real risk of mistreatment on return to Zimbabwe and should be granted asylum."
It does confirm that credibility on this key issue will continue to be a significant issue in decision-making at the UK Border Agency.
To recap, the case of RN (Zimbabwe) v SSHD was promulgated on November 19, 2008. The appellant in RN arrived in the UK in January 2006. She claimed asylum the following day. She had no political beliefs and had engaged in no political activities but had in the past worked as a teacher.
In the appeal proceedings, the Home Office did not dispute any of the country witnesses’ evidence and did not cross examine the witnesses.
Their argument in submissions was that this was not a good time for a new Guidance Case because the political situation in Zimbabwe was a highly fluid and fast moving one.
The Tribunal disagreed, and said the fact that country conditions kept changing was not a reason for the it to avoid giving guidance. It allowed RN’s appeal.
The main points that emerge from the RN case are as follows:
1. Anyone who is not able to demonstrate loyalty to the Zanu PF regime will be at risk. This means that it is no longer only MDC members and supporters who are likely to be targeted by the Mugabe regime. This should mean that members of other political parties and civic groups should also benefit from the RN ruling.
2. The question of whether someone is not loyal to the Mugabe regime is one of credibility to be assessed on the facts.
3. Anyone who has lived in the United Kingdom for a long time and has made an unsuccessful asylum claim may be at risk. A long time in this sense is not defined but from the facts in RN, it is arguable that the threshold should be two years.
4. The Mugabe regime now targets, not only particular individuals for persecution, but whole communities in certain areas.
5. Teachers and ex-teachers are singled out as being at risk on return.
6. The Central Intelligence Organisation (CIO) continues to be in charge of monitoring returns to Harare airport. This increases the risk of persecution for those who are not pro-government because the CIO keep records and are highly networked and resourced.
7. It is too early to tell whether the power sharing agreement signed between the MDC and Zanu PF on September 15, 2008, will remove the real risk of serious harm to those who are not able to demonstrate allegiance to or association with the Zimbabwean regime.
8. The political situation in Zimbabwe may change, and if it does, the courts may depart from the RN Country Guidance case until a new Guidance case is published.
9. There will be some cases that will succeed on the basis that the general country conditions and living conditions in Zimbabwe have continued to deteriorate. The recent cholera outbreak brings this into sharp focus and indeed the new OGN acknowledges as much. These claims are by nature very difficult to run but, I suspect that there will be people such as HIV sufferers, minors, and the disabled whose vulnerability naturally lends itself to this argument. Each case will be considered on its own facts.
The huge importance of the RN case is best demonstrated by the profile of RN herself. She succeeded even though she had no political profile, and the only factors going for her really were that;
a) She previously worked as a teacher in Zimbabwe, and;
b) She had been absent from Zimbabwe for two years.
That lightweight profile demonstrates the potential significance of this decision. Failed asylum seekers in particular should be able to make fresh claims on the back of these findings, and those whose cases have been held up at the High Court should be able to re-activate them by Judicial Review proceedings.
Taffy Nyawanza works for Bake & Co Solicitors of Birmingham. He can be contacted on firstname.lastname@example.org, ph. 0121 616 5025 or visit Bake & Co Solicitors’ website at www.bakesolicitors.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 or inconvenience as a result of the use of this information