Undocumented Zimbabweans who have been irremovable for lack of a valid passport or ETD: Should the UK Government regularise their status?

There is a world of difference between advising a person on what they need to hear as opposed to what they want to hear.  The difference is essential- correct advice results in the taking of proper effective steps to counter and solve a particular legal problem.   Presentation of grossly sugar-coated advice simply so as to make it palatable to the hearer, in particular in the subject area of enforced removals, has the real potential of depriving a claimant of the proper advice they need in order to galvanise them into much needed action earlier on.

It is one thing to say simply to the UK Government, here I am, let me stay in the UK, I have been here way too long, it would be wrong and unfair of you to remove me, I really won’t know where to start from if you remove me to Zimbabwe.

It is however  quite another to argue along the following basis: I need the UK Government to regularise my stay in the UK because I fulfil the requirements of this and that immigration rule; additionally, there are exceptional or compassionate circumstances applicable to my case; it is clear that there would be a breach of my human rights if I am returned home; I have a genuine fear of return to Zimbabwe and therefore should be granted protection in the UK.

There seems to be quite a lot of panic and fear among failed or undocumented Zimbabweans currently. It seems the spectre of enforced removals is in the air – although of course it has been no secret for the last 6years that the UK Government has a policy of enforced removals to Zimbabwe.

“Where and how does the UK Government possibly expect me to start from in Zimbabwe after 16years residence in the UK?”, they are asking.

Such a question may likely however prompt not any answer but in turn provoke the following questions: how can a person remain undocumented in the UK for 16or more years and without the UK Government taking any removal or deportation action? Having stayed undocumented in the UK for so long, wouldn’t an individual have received some sort of notification at some point from the Home Office that they are liable to removal to Zimbabwe? What’s stopping such individuals from submitting a claim to the Home Office?

 

Problems faced by undocumented Zimbabweans living in the UK

As highlighted in previous blog posts, long term residing Zimbabwean failed asylum seekers are faced with various problems in the UK. This includes possible destitution, inability to work with some unfortunately taking their own lives rather than return to Zimbabwe.

But such circumstances, which affect not only just undocumented Zimbabweans but other irregular immigrants in the UK, do not provide any basis for arguing that leave should be granted to Zimbabwean failed asylum seekers. After all, some affecting changes were specifically brought in intended to create a “ hostile environment”   so as to nudge those without any basis of stay to leave the UK.

 

Why does there seem to be so many undocumented Zimbabweans with lengthy residence in the UK?

Although some failed Zimbabwean asylum seekers might have been granted leave to remain over the years due to either the Legacy Programme which ran from 2006 until at least 2014 or having regard to some other basis, it is apparent  that 9years ago there was noted to be a considerable number of undocumented Zimbabweans residing in the UK

There seemed to be some indications in 2009, that there were 70,000 failed Zimbabwean asylum seekers or Zimbabweans living in the UK without valid leave to remain:

“Research undertaken in March 2009 by the Phoenix Fund for Zimbabwe and published in a report, Zimbabwe: Rebuilding a Nation, found:

“The relationship between the Zimbabwean community in the UK and the UK Border Agency is extremely tense and the high levels of suspicion and mistrust could undermine any initiatives that are linked to return”.

The report quotes the United Kingdom Border Agency’s January 2009 estimates for Zimbabweans in the UK, which suggest that there may be living here as many as 70,000 failed Zimbabwean asylum seekers or Zimbabweans without valid leave to remain. This figure suggests those potentially eligible for removal to Zimbabwe could present the UKBA with a huge task, with concomitant strain on pre-removal detention centres. If the so-called normalisation of returns policy to Zimbabwe is pursued, I suspect there will be prolonged legal battles in many cases…” Lords Hansard text for 4 November 2009, https://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/91104-0011.htm

The following might provide the answer as to why a considerable number  of  Zimbabwean nationals with lengthy residence in the UK remained undocumented but not subject to forcible removal over the years:

 

(a). Inability of the UK Government to remove non- consenting undocumented Zimbabweans:

For 16years, the UK Government has been unable to forcibly remove non- consenting   undocumented Zimbabweans from the UK.

In the case of JM (Zimbabwe), R (on the application of) v Secretary of State for the Home Department [2016] EWHC 1773, the Court made it clear that it had been the settled position of the Zimbabwean authorities since 2002 that they would only accept voluntary returnees. Returnees would be asked if they wished to return. It followed in the Court’s view, that anyone who told the Zimbabwean authorities, in answer to their question, that he was unwilling to return would, in practice, be irremovable.

It is clear that most Zimbabwean nationals who arrived in the UK several years ago, no longer have valid current national passports. The absence of a valid passport, regardless of whether the Home Office retain the expired one, necessitated that an Emergency Travel Document (ETD) be obtained from the Zimbabwean Embassy in order to effect removal or deportation.  Obtaining an ETD however required two things: first the person had to sign a disclaimer indicating the willingness to return to Zimbabwe and second he had to attend an interview at the Zimbabwean High Commission.  The majority of affected Zimbabwe nationals, whether detained or nor not have however withheld consent to such a procedure resulting in an inability to practically enforce removal, even where the UK policy of enforced removals to Zimbabwe has been consistently in place since 2010.

Following on from a previous blog post, Is Mnangagwa’s New  Government paving the way for  UK mass removals of failed Zimbabwean Asylum Claimants ?, the burning question currently however is whether or not agreement has indeed been reached between the UK government and the Zimbabwean government enabling the forcible removal of undocumented non-consenting Zimbabweans on emergency travel documents( ETD’s) so long as the Zimbabwean government accepts the returnee as one of their own. No public announcements have however been made by either Government to clarify the position.

 

(b). On and off moratorium or shield against enforced removals to Zimbabwe between 2002 and 2010:

The Home Office position as regards enforced returns to Zimbabwe fluctuated over the years depending upon the country conditions in Zimbabwe, foreign policy reasons and further having regard to the direction UK Country Guidance caselaw was flowing at a particular time as it affected Zimbabwean asylum claimants in the United Kingdom.

  • Initial announcement of 2002, the Moratorium: – On 16 January 2002, the then Home Secretary decided to suspend removals to Zimbabwe until after the presidential election were held. It was announced that the UK Government would then assess the country situation and the risks faced by individual returnees and decide whether to resume removals. In the meantime, consideration of individual applications for asylum were to continue. http://www.publications.parliament.uk/pa/ld200102/ldhansrd/vo020116/text/20116-03.htm

 

  • Reversal of policy in 2004, end of temporary suspension of enforced removals:- On 16 November 2004, the Government clarified further their policy position as it related to the return of failed asylum seekers to Zimbabwe. It was stated that the January 2002 announcement of temporary suspension of removals of failed asylum seekers to Zimbabwe was in response to concerns at that time about the serious deterioration in the situation in Zimbabwe in the run-up to the presidential election held in March that year. The UK Government did not regard it as unsafe to return failed asylum seekers to Zimbabwe, but in view of the turbulent political conditions it had been considered that it would be appropriate not to enforce returns at that time. While it was noted that there had not been any improvement in conditions in Zimbabwe since enforced removal of failed asylum seekers were suspended, it was considered that the proportion of claimants whose claims were viewed not to be well founded had increased markedly over the period of the suspension. It was viewed that the absence of enforced returns increasingly acted as a pull factor for Zimbabweans, and for others posing as Zimbabweans, who did not need international protection but none the less made asylum claims confident that even when unsuccessful they would not be forcibly removed. This was stated to be a misuse of the asylum system. The UK Government therefore on 16 November 2014 decided to bring their policy on returns of failed Zimbabwean asylum seekers into line with that on every other country and ended the temporary suspension of enforced returns of failed Zimbabwean asylum seekers. http://hansard.millbanksystems.com/written_statements/2004/nov/16/zimbabwe-asylum-seekers

 

  • U- turn in 2005: – On 18 July 2005, the UK Government announced a reversal of their policy position. It was announced that the UK policy on enforcing the return of failed asylum seekers to Zimbabwe had not changed. The Government remained of the view that the correct way to operate a fair but credible asylum system was to consider each asylum claim on its individual merits, to grant protection to those who needed it, and to seek to remove those who did not and who had no other basis of stay in the country, and who would not leave voluntarily. It was noted that the UK courts had set a hearing on 4 August 205 to consider the evidence provided by the Refugee Legal Centre relating to the treatment of failed asylum seekers upon their return to Zimbabwe. It was considered that this would provide an opportunity for all the objective information relating to their treatment to be assessed. Therefore pending the 4 August 2005 hearing, the UK Government announced that out of respect and courtesy to the clearly expressed wishes of the court, they had agreed not to enforce the removal of Zimbabwean failed asylum seekers to Zimbabwe. The Government stated that it continued to have grave concerns about the human rights situation in Zimbabwe, and would continue to press for an end to abuses. It was also made clear that the Government would   continue to provide protection through the asylum system for Zimbabweans with a well founded fear of persecution. http://www.publications.parliament.uk/pa/ld200506/ldhansrd/vo050718/text/50718-07.htm

 

  • Continuation of non-enforced returns in 2006 to 2009: – On 16 January 2006 the UK Government announced that a recent Asylum and Immigration Tribunal determination did not find that Zimbabwe generally was unsafe for failed asylum seekers to return to or that voluntary returnees were at risk, only that the method by which the Home office at that time enforcing returns put enforced returnees at risk. As a consequence, the UK Government stated that it would not enforce the return of failed asylum seekers to Zimbabwe until they had addressed the concerns of the tribunal. It was however stated that in the meantime, voluntary returns to Zimbabwe were possible and were continuing. The Government therefore stated that it expected failed asylum seekers to return voluntarily to Zimbabwe and would assist them in doing so through the International Organisation for Migration (IOM). http://www.publications.parliament.uk/pa/cm200506/cmhansrd/vo060116/text/60116w57.htm

 

  • On 20 April 2006, the UK Government announced that 12 April 2006 the Court of Appeal had allowed the Government’s appeal against two determinations of the Asylum and Immigration Tribunal (AIT). The court found that the Asylum and Immigration Tribunal had erred in its approach to the evidence before it in finding that the particular way the Government was enforcing returns of failed Zimbabwean asylum seekers to Harare airport put them at risk of mistreatment. The AIT’s determination in that case had therefore been set aside and the AIT would consider the case afresh. The UK Government therefore announced that in line with their original undertaking to the High Court, they would not be enforcing returns to Zimbabwe pending the further hearing the Asylum and Immigration Tribunal was required to hold. The Government however stated that they continued to expect those who had exhausted their rights of appeal and been found not to need international protection to leave the UK voluntarily. https://www.theyworkforyou.com/wms/?id=2006-04-20b.29WS.1

 

  • On 6 May 2009, the UK Government noted that a court judgment on 19 November 2008 found that there was no prohibition to removing people who had no right to be in the UK to Zimbabwe. However, the policy of the Government was that they would always take account of the political and humanitarian factors before doing so. It was noted that Home Secretary had announced in September 2006 that they would be halting enforced returns to Zimbabwe and the UK Government was not currently enforcing the return of Zimbabwean nationals.  http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090505/text/90505w0008.htm

 

  • Permanent change of policy in 2010– returns to be enforced:- On 14 October 2010, the UK Government announced that enforced returns to Zimbabwe had been suspended in September 2006 because the unstable political situation in the country meant that the safety of individuals could not be guaranteed.  But since the formation of the Inclusive Government in 2009, the country was now considered stable enough to receive returnees. It was stated that this meant that all Zimbabweans living in the UK illegally now faced enforced removal. Damian Green, Minister for Immigration therefore announced the resumption of enforced returns to Zimbabwe for failed asylum seekers as it was stated that they had been judged by the independent courts to have no right to remain in the UK. It was considered that the Court’s decision reflected the improved stability in Zimbabwe since 2009 and the UK court’s view that not all Zimbabweans were in need of international protection. It was considered that those facing return would join the hundreds who had returned voluntarily, responding to calls by the then Zimbabwean Prime Minister Morgan Tsvangirai to return home and help rebuild their country. https://www.gov.uk/government/news/enforced-returns-to-zimbabwe-will-resume

 

  • The Home Office Operational Guidance Note: Zimbabwe (v9.0 April 2012) at paragraph 5.1, confirmed that there was no policy which precluded the enforced return to Zimbabwe of failed asylum seekers who had no legal basis of stay in the United Kingdom. The Home Office Operational Guidance Note: Zimbabwe (v12.0 November 2013), reiterated   the same UK policy once again at paragraph 6.1 of that Guidance.

It has therefore been clear from October 2010 what the UK Government’s policy has been towards enforced removals to Zimbabwe, ie that there is no longer any general shield against forcible returns. The only hinderance however facing the UK Government has  been the procedural administrative difficulty in obtaining consent from affected claimants to the emergency travel document procedure as clarified above.

It is undeniable that it had therefore become almost the norm over the years that undocumented Zimbabwean claimants without any claims pending, have been able to report regularly to the immigration authorities in the expectation that they will not t be detained- in practice,  the UK Government tolerated such a state of affairs.

 

(c). Inability to satisfy the requirements of the Immigration Rules:

Whilst a person, with no other basis of stay, who might have arrived in the UK in 2002, would have accrued 14years long residence in 2016, on 9 July 2012, the UK Government moved the goalposts even further by abolishing the 14year long residence Rule. This Rule would have enabled those with 14years residence, legal or illegal, to become eligible to apply for indefinite leave to remain in the UK.  Instead, those adults seeking to rely on established private lives are now required to show as a starting point that they have at least 20years residence in the UK. Such a person then, who arrived in the UK in 2002, will therefore be in a position to meet the new requirements on long residence in 2022.

Seeking to meet the other requirements of the Immigration Rules intending to argue that nonetheless, a claimant should be granted leave to remain on the basis of  lengthy residence of less than 20years,  requires that the person show that there are very significant obstacles to integration to life in Zimbabwe – a high threshold indeed and in practice the Home Office are reluctant to grant leave to remain to adults with less than 20years residence in the UK(apart from young adults who have spent half their lives in the UK and are aged between 18 and  at below 25years of age).

Faced with such changes in the law, over the years, some affected undocumented Zimbabwe asylum claimants have continued to report to the immigration authorities as required but without any  further claims having been submitted to the Home Office, in the full knowledge of the procedural problems faced by the Home Office in effecting their removal to Zimbabwe.

 

(d). Missing out on claiming asylum at the opportune moment or missing out on favourable Home Office programmes:

There are persons who remained in the UK but either failed to claim asylum at a period when the level of Home Office grants of refugee status were high or at a time when the strength of favourable caselaw such as RN (Returnees) Zimbabwe CG [2008] UKAIT 00083 applied.

Others also failed to elicit success when they missed out on placing reliance upon the so called “Legacy Programme”.  The legacy programme or scheme was set up to deal with the vast backlog of cases that had by 2006 been identified.  In respect of asylum applications made prior to 5 March 2007 which had not been disposed of – several hundreds of thousands – responsibility for dealing with such cases was transferred to the Casework Resolution Directive (CRD).   Many of those potentially within the programme were liable to removal, having previously exhausted their appeal rights. Many sought thereafter to lodge fresh submissions and representations. By mid-2011 there were still over 100,000 cases remaining to be disposed of.  In July 2011 the remaining cases and those in controlled archive were transferred for resolution by a new unit called the Case Assurance and Audit Unit (CAAU).  In the past few years therefore, persons caught by the programme were granted either indefinite leave to remain or limited to remain, however others, including some Zimbabweans regrettably fell out of the net and were not be granted any leave to remain.

 

(e). Other Reasons:

 

There are then cases where persons, whether undocumented from the beginning or having held indefinite leave to remain at some point, are left undocumented following initiation of deportation proceeding after committing criminal offences in the UK. A person who has become subject to deportation proceedings having committed criminal offences in the UK faces quite a battle in seeking to regularise their position in the UK.

Some Zimbabweans arrived in the UK, but simply never took any action to regularise their status and instead went to ground: either out of fear of coming to the attention of the immigration authorities having overstayed their leave to remain or in the full knowledge that without a current Zimbabwean passport, in the absence of their consent, they would be irremovable.

 

Current position

(i). Asylum claims:

There now needs to be drawn a sharp distinction between the Mugabe era and Mnangagwa’s rule, so far as concerns viability of asylum claims.  Whilst Mugabe was in power, the persecution, ill-treatment and repression of political dissenters, perceived or real, was well publicised.  So as far as concerns current issues relating to the consideration of asylum claims from Zimbabwean nationals, we know what the UK Government view is regarding Mnangagwa’s Government, “While the tone of political rhetoric has been more conciliatory since Mr Mnangagwa came to power, there is a lack of clear and cogent evidence that the government has fundamentally changed the political environment or how it treats those opposed to the state”, as per the Country policy and information note Zimbabwe: opposition to the government, April 2018 published on 30 April 2018 by the Home Office.  Whilst this signals some level of misgivings towards the current Zimbabwean government, it is however an inescapable truth that the current levels of political violence in Zimbabwe can in no way be treated as comparable to those seen in 2008 or subsequent years prior to Mugabe’s departure.

It is important however to recall that each asylum claim is considered on its own individual basis and as such, there is absolutely nothing to stop a person who fears return to Zimbabwe for political or other reasons from claiming protection from the UK government.

 

(ii). Other claims:

There is also nothing to prevent an undocumented Zimbabwean in the UK from relying upon the immigration rules, human rights provisions and exceptional circumstances as a basis of regularizing their position in the UK.

 

Misunderstanding of the effect of the Babbage line of case

Cases such as Babbage, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 148 and  JM (Zimbabwe), R (on the application of) v Secretary of State for the Home Department [2016] EWHC 1773 were often understood by some to mean that any Zimbabwean national detained under UK immigration powers is irremovable. This is not correct. The Home Office have incrementally been detaining Zimbabwean failed asylum seekers upon reporting and some are indeed being removed forcibly to Zimbabwe. So long as the Home Office manage to get hold of a person’s valid and current Zimbabwean passport, either during the application process or during an enforcement visit, where it can be shown that a person no longer has a basis of stay in the UK, then removal is likely to go ahead.

A misunderstanding that also arises in conjunction with Babbage is that it gives rise to a basis for applying for or obtaining leave to remain in the UK. This is also incorrect.

It must be appreciated that the question which arose in the Babbage litigation was whether the Home Secretary could justify Babbage’s continued detention when he had made it clear that he would not agree to his return to Zimbabwe. The Court’s answer was “no” as the primary reason for so holding was that there had been no reasonable prospects of returning Babbage to Zimbabwe since, at least, August 2015.

The current Home Office position is clear as set out above: there has since 2010 been no policy in place which precludes the enforced return to Zimbabwe of failed asylum seekers who have no legal basis of stay in the United Kingdom.

For Zimbabweans without a legal basis of stay but in relation to who the Home Office hold valid and current Zimbabwean passports, the position is that they remain liable for removal or deportation, whether nor not the person gives consent to voluntary return. This is because possession of such a document precludes the need for the Home Office to approach the Zimbabwean embassy in relation to the returnee to request the issue of an emergency travel document. Cases such as Babbage and JM(Zimbabwe) are therefore likely to be of little or no use in such circumstances and as regards substantive applications for leave to remain having regard to the facts and issues raised in those cases.

 

Prolonged stay in the UK due to absence of return documentation

For failed asylum seekers or undocumented Zimbabwean nationals who have over the years not been able to return to Zimbabwe simply due to a lack of travel documentation, the Secretary of State could take the following position:

The lack of return documentation to Zimbabwe created an impediment to return which the Secretary of State could not circumvent- the Zimbabwean Government would not issue an ETD to non -consenting returnees.  Where an unsuccessful applicant for asylum refused to co-operate to obtain a travel document, he was in precisely the same situation as any other failed asylum seeker whom the Secretary of State is unable to return for one reason or another. The applicant was precisely in the situation of any other failed asylum seekers who would not be at risk in their own state but could for technical reasons be returned home. The existence of technical obstacles did not entitle them to leave to remain. Such persons could only be returned with the necessary documentation, and if and when the impediment caused by lack of the relevant documentation was overcome.

It is therefore unlikely to form part of a viable argument in a substantive claim for leave to remain to seek to argue as a factor that the applicant ‘s residence in the UK was prolonged due to being unable to return to Zimbabwe for lack of a travel document. The Secretary of State’s position may be that it would have been up to an individual over the years to voluntarily approach the Zimbabwean embassy for issue of an emergency travel document once it was known there was no longer any basis of stay in the UK.

 

Prolonged stay in the UK as a result of the past volatile political situation in Zimbabwe

The volatile political situation that prevailed in  Zimbabwe over the years under Mugabe’s rule is likely not sufficient to justify a grant of leave to remain for a person who never applied for asylum in the UK or who did claim asylum but whose claim was never accepted as credible by the Home Office or the Tribunal/Courts.

It is the norm, that in the consideration of further submissions, a resultant negative decision from the Home Office will make as its starting position,  a setting out of the previous basis of refusal of that past asylum claim, at times quoting at length passages of negative findings arising from a previous Judge’s decision or determination on that previous asylum claim.

 

Prolonged stay in the UK and acquisition of skills or educational qualifications

It may be thought that the acquisition of skills and educational qualifications in the UK might be of aid as a supportive factor in a human rights claim. That might be so, however the Home Office could refuse such a claim and state:

“ You are of working age, you have been highly educated whilst in the UK and it is also noted that you have completed a degree at …… University. All of this highlights the fact that you are highly resourceful and highly educated. It is therefore considered that you can use these skills in order to assist you in gaining employment upon your return to Zimbabwe where it has been found that you do not have a well founded fear of persecution…….Additionally, it is considered that you would be able to find employment and re-integrate within Zimbabwean society”.

 

Prolonged stay in the UK due to on and off policy against  enforced returns to Zimbabwe

It is important to be aware of the periods over which there were no enforced returns to Zimbabwe so as to appreciate how it is many Zimbabweans might have found themselves in the UK undocumented over such lengthy periods of time. With such an understanding , it is also possible to counter statements from the Home office as to why a claimant did not return to Zimbabwe much earlier. A prolonged absence from Zimbabwe, the prevailing country conditions in Zimbabwe over the years, combined with an active on and off UK Government policy against enforced returns to Zimbabwe, the prolonged unsettled litigation over the years regarding the return of failed asylum seekers or Zimbabweans generally, all in combination form part of the factors to be taken into account in the proportionality balancing exercise as regards the consideration of a human rights claims based on length of stay in the UK.

 

How to approach an Article 8 private life human rights claim\representations based on lengthy residence in the UK in non criminal cases:

Those who have been here less than 20years might find inspiration from a previous blog post: Zimbabwean national with 17years UK residence satisfies the rigorous “very significant obstacles to integration” requirement in both tiers of the Tribunal. This case is now on the Upper Tribunal website as an Unreported Case.

Do :

  • Set out a full factual and immigration history of the individual claim;
  • Where relevant and with supportive documentary evidence in sight, rely on the Immigration Rules showing that the claimant has lived continuously in the UK for at least 20 years (discounting any period of imprisonment);
  • Show by reliance upon the Immigration Rules that the claimant is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.  Show a combination of factors applicable to the claim as set out in the material before the Secretary of State which mean that the requirements of the Immigration Rules have been met. By reliance upon the background evidence, show the country conditions applicable to Zimbabwe ie the  unemployment problem, any hunger and water shortages generally in Zimbabwe and the place of return, cash shortages in Zimbabwe and impact against reintegration. As regards the employment issue, efforts need to be shown that the claimant has sought to source employment from Zimbabwe whilst in the UK, e.g sending out email applications for employment attaching a CV also showing the source of the corresponding job advert and ultimately showing any responses or lack thereof received to the job applications.  Show the inability to transfer skills to Zimbabwe and obtain employment.
  • In seeking to reply upon Exceptional Circumstances, place reliance upon any delays in the consideration of past claims and refer to relevant caselaw on the effect of delay upon the proportionality balancing exercise in this regards. Where relevant, seek to show the lack of any ties or support network in Zimbabwe. Where there is family in Zimbabwe, show why it is not possible to rely upon them for support following arrival. If there are any family members  or friends in the UK, explain why reliance cannot be placed upon money remittances from them to enable integration. Additionally, explain why any financial support to be provided via the UK Voluntary Return Assistance scheme  will likely be depleted in a relatively short time upon arrival in Zimbabwe. Seek to research the cost of rental accommodation in Harare or the place to origin in Zimbabwe and explain why the claimant would be unable to afford the rental. Where relevant, show any applicable particularly strong features of the applicant’s private life in the UK such as volunteer work relying on paragraphs 47 and 50 of Akhalu (health claim: ECHR Article 8) [2013] UKUT 00400 (IAC).  Rely also on periods of non- returns to Zimbabwe as a factor prolonging length of stay in support of the claim.

 

Where a human rights claim is effectively prepared from the start, then if refused without a right of appeal, chances are that a subsequent judicial review claim challenging such a decision might succeed.

 

The undocumented Zimbabwean: what to do

There is no need to panic. Panic can paralyze a person into fear-fear may in turn lead to inaction.

Affected persons should seek to regularize their stay in the UK.

Submit that application. File that appeal. Pursue that judicial review claim.

MP representations or other avenues are unlikely to be workable on their own without a pending application or representations with the Home Office.

The “ language” the Home Office understands mostly is reliance on law, policy and procedure.  Contrary to some recent views being bandied about, it is doubtful the “Zimbabwean problem” can in any way be equated to the Windrush scandal.   In effect, members of the Windrush generation, who arrived in the UK from 1948 onwards, as well as their children, were wrongly targeted by the UK government’s “hostile environment” policies designed to deter illegal immigrants.

Those comfortable with the law and procedures can chose to self – represent.

Others may continue to instruct lawyers of their own choice, bearing in mind that it is not only lawyers of Zimbabwean origin who understand problems faced by Zimbabwean claimants.

Do not be afraid to seek a second opinion on your case. This is your life: feel free to change long standing legal representation where need be rather than allow stagnation to seep in nor tolerate being told to wait for this and that to happen before an application/representations can be submitted to the Home Office.

Do not allow yourself to listen to this and that opinion on immigration matters from just about anybody. Do not be distracted.  Seek immigration legal advice only from regulated individuals, ie advisors regulated by the OSIC, an immigration Solicitor or an immigration Barrister.

Do not compare your case with so and so. Remember each case is different and will be considered on its own merits.  Home Office decision makers do not decide cases as a “collective project”.

Do not give up following receipt of negative decisions from the Home Office. Be persistent. Drive home your points regularly to the Home Office.

Do try and move away from advancing weak asylum claims where such a claim was not previously accepted by the Home Office or the Tribunal/Courts more so where you have absolutely no new fresh significant evidence on the issue. Explore other basis of stay in the UK.

Where it all becomes overwhelming, do seek appropriate help so as to better cope mentally.

Approach relevant charitable organizations for help with issues such as destitution.

Above all, as the applicant or client,  lead in the  direction of your own case, taking appropriate and reliable legal advice and be proactive in providing the supportive documentation and information.

 

 

 

 

 

 

 

 

 

Just when the Home Office thought Iraqi protection claims were well and truly buried, resurrection emanates from the Upper Tribunal

The Home Office has for well over a year been angling to throw a spanner in the works so far as continued reliance upon the guidance flowing from AA (Article 15(c)) ( Iraq CG [2015] UKUT 544 (IAC) is concerned.   The Secretary of State’s general position as set out in currently published Country Information Notes is that the security situation in Iraq has significantly improved. As is clear from those Notes, he has persistently sought to consign to the legal dustbin, the viability of continued reliance upon AA (Iraq )2015.

 

The Secretary of State’s currently published Information Notes on Iraq have been intended to bury the effect of AA(Iraq)2015, which has opened the doorway to a good number of Iraqi claimants succeeding in the Tribunal in their claims for protection owing to the security conditions in Iraq.

 

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After Kiarie and Byndloss: Applicant has a second bite of the cherry in a Section 94(B) certification case

QR (Pakistan), R (on the application of) v The Secretary of State for the Home Department [2018] EWCA Civ 1413 (21 June 2018) addresses several important strands arising out of a challenge in the Court of Appeal to a Section 94(B) Certificate.

 

 

Interestingly, in QR(Pakistan), the Court of Appeal granted permission for judicial review in a case where the Applicant had prior to his deportation in February 2017, unsuccessfully mounted a challenge in relation to a previously issued Section 94(B) certificate. After his deportation and following the publication Kiarie and Byndloss in June 2017 in the Supreme Court, well out of time, the Applicant sought to resurrect his previous claim by lodgement of further judicial proceedings in September 2017 whilst abroad.

 

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EEA nationals and deportation: Inapplicability of Kiarie and Byndloss effect to take sting out of Regulation 33 Certification

Quietly but determinedly the UK Government continues to detain EEA nationals subject to deportation. Some are deported, not on the basis of any crime committed in the UK but by reliance upon a previous adverse criminal history in the country of origin. Removal directions follow shortly after detention, even if the EEA national has a pending appeal yet to be heard in the immigration Tribunal.

 

 

In Wandzel, R (On the Application Of) v Secretary of State for the Home Department (Rev 1) [2018] EWHC 1371 (Admin), the Claimant, a Polish EEA national subject to deportation, sought to argue that following the decision of the Supreme Court in Kiarie and Byndloss, the Regulation 33 certification applied to his case was unlawful.

 

On the facts of his case, the argument failed to properly lift off the ground with the Administrative Court seemingly making short shrift of them, holding that certification was not unlawful. 

 

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Article 3 medical condition cases: The Paposhvili test returns to plague the Court of Appeal

Following MM (Malawi) & Anor, R (on the application of) v The Secretary of State for the Home Department [2018] EWCA Civ 1365 (12 June 2018), it has become increasingly  clear that there are now two applicable  tests in medical condition cases:

 

    • the test in article 3 medical cases as expounded in N v Secretary of State for the Home Department [2005] UKHL 31; [2005] 2 AC 296, i.e. that, where an individual suffers from a serious medical condition, it would breach article 3 to remove him from the UK only where he would face an early and undignified death

    •  the test in article 3 medical cases as per the criteria in Paposhvili v Belgium [2017] Imm AR 867,ie the “Paposhvili test”.  The Court in MM(Malawi) observed that the effect of Paposhvili upon existing jurisprudence was considered in AM (Zimbabwe) v Secretary of State for the Home Department [2018] EWCA Civ 64, at paragraph 38:   “So far as the [European Court of Human Rights] and the [ECHR] are concerned, the protection of article 3 against removal in medical cases is now not confined to deathbed cases where death is already imminent when the applicant is in the removing country. It extends to cases where ‘substantial grounds have been shown for believing that [the applicant], although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy’ (paragraph 183). This means cases where the applicant faces a real risk of rapidly experiencing intense suffering (i.e. to the article 3 standard) in the receiving state because of their illness and the non-availability there of treatment which is available to them in the removing state or faces a real risk of death within a short time in the receiving state for the same reason. In other words, the boundary of article 3 protection has been shifted from being defined by imminence of death in the removing state (even with the treatment available there) to being defined by the imminence (i.e. likely ‘rapid’ experience) of intense suffering or death in the receiving state, which may only occur because of the non-availability in that state of the treatment which had previously been available in the removing state.”

 

A previous blog post explores the Court of Appeal ‘s decision in AM (Zimbabwe): A very modest extension of the protection under Article 3 in medical cases: Court of Appeal rules upon meaning and effect of the guidance in Paposhvili

It is therefore possible to argue that a claimant satisfies the criteria in Paposhvili but not that in N.

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