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Zimbabwe country guideline case allowed

Zimbabwe country guideline case allowed

MDC logoThis news will be welcomed by Zimbabweans in the UK. The decision in the latest test case, RN (Returnees) Zimbabwe CG [2008] UKAIT 00083 is now doing the rounds with immigration lawyers and will no doubt be properly published in due course on the AIT website. (UPDATE: see here). It is a long decision and I will only quote from three of the final paragraphs to give a flavour of the decision:

258. The evidence establishes clearly that those at risk on return to Zimbabwe on account of imputed political opinion are no longer restricted to those who are perceived to be members or supporters of the MDC but include anyone who is unable to demonstrate support for or loyalty to the regime or Zanu-PF. To that extent the country guidance in HS is no longer to be followed.

259. The fact of having lived in the United Kingdom for a significant period of time and of having made an unsuccessful asylum claim are both matters capable of giving rise to an enhanced risk because, subject to what we have said at paragraph 242 to 246 above, such a person is in general reasonably likely to be assumed to be a supporter of the MDC and so, therefore, someone who is unlikely to vote for or support the ruling party, unless he is able to demonstrate the loyalty to Zanu-PF or other alignment with the regime that would negate such an assumption.

260. The attempt by the regime to identify and suppress its opponents has moved from the individual to the collective. Thus, a person who returns to a home in an area where the MDC made inroads into the Zanu-PF vote at this year’s elections faces an enhanced risk as whole communities are being punished for the outcome in an attempt to change the political landscape for the future and to eliminate the MDC support base.

Teachers and ex-teachers are singled out by the tribunal as being particularly at risk, and the tribunal goes on to recognise that there is a power-sharing arrangement now in place but it is too soon to say whether this will alleviate the risks.

The Home Office has been fighting this litigation tooth and nail in contravention of its obligations under the Refugee Convention, and it would be surprising if the Home Office did not choose to appeal. The view of the Home Office seems to have been (a) there was no risk on return on the basis of perceived disloyalty to the regime and (b) in any event we aren’t removing so what is the fuss about? The Home Office is entitled to take the view there is no risk, although most would say that there was very strong evidence that there was in fact a risk, but I would say that (b) contravenes international obligations. A refugee should be recognised as a refugee and given status. A similar thing happened with Kosovars a few years ago during the conflict there, where the Home Office routinely granted Exceptional Leave to Remain but not refugee status. This led to all kinds of problems later on and it deprived those concerns of their entitlements under international law.

What next for Zimbabwean claims? Fresh claims can be made by those who have no outstanding claims or appeals and upcoming appeals will be allowed on the basis of RN. Will the Home Office appeal? Probably. Will there be another CG case in a few months? Yes. Will the Home Office attempt to appeal allowed cases? Yes. Will the Home Office refuse to issue status papers until the new county guideline appeal is determined? I wouldn’t be surprised, but any delay once the Home Office’s appeal rights are exhausted can be challenged through judicial review.

Free Movement
The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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