Zimbabwean Asylum Claimants And The New Political Movement: Are The Home Office & Tribunal “Getting it” ?

There clearly is a new protest political  movement emerging   in Zimbabwe  being  propelled substantially  by  social media. Where this  continues  in the long term ( if not  suppressed ),  and where  claimants associated with such movements seek protection in the UK,  then   current rigid   UK  asylum country  guidance caselaw, CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59 (IAC),   becomes increasingly  redundant.

The current question  is whether the  Home Office together with the Tribunal understand the true nature and extent of the new  movement and how it impacts  upon  claimant’s  cases upon application or appeal.  Simply put, are they “getting it ”?   If not and where the guidance in CM obscures  consideration of claims from persons associated with such movements, then there is an inevitable adverse  impact  upon considerations of  risk on return   and  entitlement to protection for affected claimants.

A glimpse of some  articles below  explain the nature of the movement(s):

I dealt recently with a Zimbabwean asylum claimant associated with one such movement and   from initial  consideration of his application  by the Home Office  to adjudication of his appeal in the First Tier Tribunal, there was not only  a complete misunderstanding   of  the nature of the  movement he was involved  with  but also  a failure to appreciate whether he would be at risk on return to Zimbabwe.  Relevant supportive background evidence was  either  not taken into account or  misapplied. The  First Tier Judge  in his decision  expressly admitted  having no idea what  the relevance   of being involved with such a movement meant  as regards issues of risk on  return. On  permission to appeal being granted,  the Upper Tribunal Judge  re-made the  decision   but that did not  take matters  further having regard to CM inevitably  drawing the Judge  to  the guidance in that caselaw. Clearly, the  guidance  in CM is  largely  inapplicable  and unsuited to claimants associated with the new movement(s)  seeking protection in the UK.

The  Home Office and the Tribunal need to appreciate  that  it  is now no longer simply   just about  being a member of the  MDC and having a political  profile  associated with said party, nor just about war  veterans and militia bashing the opposition.

Some new country guidance caselaw may be in order in an appropriate case if  the current Zimbabwean  regime remains in power and if  the  current movement continues.

Perhaps, if the  first wave of Zimbabwean asylum claimants associated with the current continuing political movement starts  hitting   UK shores( as occurred  around 2002 and 2005 and 2008 )   new guidance  might swiftly  be in order.

Foreign Criminal: Court of Appeal Finds Very Significant Obstacles To Integration in Country of Return

The newly notified case of Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813, shows  that sometimes the Secretary of State does not always get  what she wants: ie  churning out of permission applications in deportation appeal  cases with the sole purpose of  convincing  the Upper Tribunal or Court of Appeal  to overturn an allowed deportation appeal.

The Court of Appeal in Kamara made it clear that contrary to the Secretary of State’s  submissions, the case in truth  did not raise important points of principle, however   in a short and to the point judgement has made  important  clarifications  in relation to  the phrase, there would be very significant obstacles to his integration into the country to which it is proposed he is deported”, which appears in Paragraph 399A of the Immigration Rules and Section 117C(4) of the  2002 Act.

The Relevant Law:

Paragraphs 399B and 399C of the Immigration Rules  set out the provisions for granting leave to remain where an Article 8 claim succeeds. Sections 117A to 117D in Part 5A of the Nationality, Immigration and Asylum Act 2002 set out the correct approach to considering ECHR Article 8 claims.

What was in issue in Kamara is the test in paragraph 399A  which corresponds  to section 117C(4) of the 2002 Act.

Paragraph 399A of the Immigration Rules applies where a person has been lawfully resident in the UK for most of his life; and he is socially and culturally integrated in the UK and there would be very significant obstacles to his integration into the country to which it is proposed he is deported.  Section 117C (4), Exception 1 also applies where  a person  has been lawfully resident in the United Kingdom for most of his  life; he  is socially and culturally integrated in the United Kingdom  and there would be very significant obstacles to  his integration into the country to which he  is proposed to be deported.

The Facts:

In short, the deportation appeal concerned a Sierra Leonean man who had been  brought up in the UK  having  come here in 1993 as a young child, aged 6.

The Appellant became subject to deportation proceedings following  a conviction of 10 October 2011 when he was sentenced to imprisonment for 3 years and 6 months for possession of class A drugs with intent to supply.

The Issue:

On appeal to the Upper Tribunal (UT),   the critical issue which the Tribunal had to determine under section 117C was whether Exception 1 applied  in  the Appellant’s case , the test under paragraph 399A being the same.   The principal factual issue in dispute at the hearing was whether  the Appellant  had maintained links with his natural mother in Sierra Leone. The UT found, taking the evidence in the round,  that the Appellant did not have  any contact with his natural mother in Sierra Leone and had no subsisting familial ties to that country, having lost all contact with the country a long time ago. The Upper Tribunal also found that the Appellant  had fully integrated into society in the UK. The UT found that, although a foreign criminal, the Appellant  fell within Exception 1 in section 117C(4) and within paragraph 399A of the Immigration Rules. Weighing this along with the other matters identified in section 117B and section 117C(1) and (2), the Tribunal held that his deportation to Sierra Leone would be disproportionate and would be in violation of his rights under Article 8. It therefore allowed his appeal against deportation

Aggrieved, the Secretary of State appealed to the Court of Appeal.  In that Court, the important question was whether there would be very significant obstacles to the Appellant’s integration into Sierra Leone, if deported there since the  Upper Tribunal found that there would be.

Court of Appeal ‘s Considerations and Conclusions:

  • In the Court ‘s view, the concept of a foreign criminal’s “integration” into the country to which it is proposed that he be deported, as set out in section 117C(4)(c) and paragraph 399A, is a broad one.
  • It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use.
  • The idea of “integration” calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life
  • As regards the Secretary of State’s submission that the conclusion the UT reached regarding Exception 1 and paragraph 399A involved legal error, because the Tribunal failed to have regard to the fact that the Appellant is a young man in good health and capable of work, in the Court’s view, the Tribunal’s decision was a careful and well-reasoned judgment. It was a judgement based on proper self-directions of law and leading to a conclusion which was clearly within the lawful parameters of legitimate evaluative judgment for the Tribunal on the facts of the particular case.
  • The Court of Appeal clarified that there is no special rule regarding the reasons to be given by a tribunal deciding an immigration appeal. The conventional approach applies. The Upper Tribunal’s decision was to be read looking at the substance of its reasoning and not with a fine-tooth comb or like a statute in an effort to identify errors. In giving its reasons, a tribunal is entitled to focus on the principal issues in dispute between the parties, whilst also making it clear that it has considered other matters set out in the legislative regime being applied.
  • The Court did not accept the submission that the UT in this case erred by failing to refer explicitly in its reasons to the facts that the Appellant is a young man in good health and capable of working as these were all matters of which the Tribunal was plainly aware. Further, the representative for the Secretary of State at the hearing before the UT did not base any distinct submission in relation to Exception 1 and paragraph 399A on these particular facts about the Appellant. The Tribunal was aware that the Appellant was a young man in good health and capable of working and obviously took those points into account as the background for its consideration of the case, however, it regarded them as insufficient to cancel out the reasons it gave for finding that, as it set out there, there would be very significant obstacles to his integration into Sierra Leone.


Highly likely to be ignored of course, but a useful reminder to the Secretary  of State having regard to the  case of Greenwood (No. 2) (para 398 considered) [2015] UKUT 00629 (IAC):

“Deportation appeals generally

18.The Upper Tribunal has the impression that the Secretary of State, as a matter of routine, applies for permission to appeal in every deportation appeal in which the appellant succeeds before the FtT. Furthermore, the grounds of appeal are frequently formulated in bland and formulaic terms. Thirdly, the grounds of appeal rarely, if ever, engage with the governing principles which we have rehearsed above.  We would suggest that these observations be carefully considered by those who compile applications for permission to appeal and the Judges who decide them.

19.If there is indeed a practice of this kind it must be disapproved. To slavishly apply for permission to appeal to the Upper Tribunal in every deportation appeal resolved in favour of the appellant, if this be the practice, is not a proper or legitimate invocation of this Tribunal’s jurisdiction.  Decisions on whether to apply for permission to appeal should be the product of conscientious and considered evaluation of the first instance judicial decision in every case.  This, we consider, is what was contemplated by the legislature in making provision for this mechanism.  Inundation of the Upper Tribunal with permission to appeal applications in every case belonging to a given category cannot be considered harmonious with the Parliamentary intention. Moreover, it is unfair to other tribunal users and undermines the important values of legal certainty and finality, which are two of the cornerstones of our legal system”.


Public Interest Considerations :Court of Appeal Gives Guidance On Concept Of “Precariousness”

RoyalCourtsofJusticeimageIn  Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803, the Court  of Appeal  sought to deal with several  matters at once as regards  issues of interpretation of  Sections 117A to 117D in Part 5A of the Nationality, Immigration and Asylum Act 2002 (as inserted by the Immigration Act 2014).  What was in issue  therefore was the public interest question – ie  the question whether an interference with a person’s right to respect for private and family life is justified under Article 8(2) of the ECHR.

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Unlawful detention: Court grapples with the problem of Zimbabwe’s refusal to accept enforced removals from the UK

robert_mugabe_1154591cUndeniably, there  are long standing  “problems”  between the  Zimbabwean  and UK  authorities but  these  are spilling  over and affecting   whether and how soon the  UK authorities can  deport or remove  affected  Zimbabwean nationals to Zimbabwe.


The case of JM (Zimbabwe), R (on the application of) v Secretary of State for the Home Department [2016] EWHC 1773, dealt  with several issues,  ranging from discussion on the  demise  of President Mugabe; whether the Home Office   could   lawfully require the  Claimant, under section 35 of the 2004 Act, to tell Zimbabwean officials that he agreed  to return voluntarily; whether the claimant’s refusal  to  sign  a disclaimer that he would return to Zimbabwe could be seen as deliberate obstruction  rather that a refusal to return voluntarily; whether the Secretary of State  can use section 35 serially, “for as many times as it takes”;  whether  the pursuit of a section 35 prosecution amounted to improper pressure and/or an uncovenanted exercise of the power to detain and whether section 35 can be legitimately used by the Secretary of State both to secure compliance and to justify detention.

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Of Surinder Singh, McCarthy and exercise of treaty rights: Insufficient evidence defeats damages claim for breaches of EU law

EU familyThe case of Benjamin & Anor, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 1626 (Admin)  considers the Surinder Singh  principles,  both in the context of an entry clearance application for an EEA family permit as well as subsequent attempts  to  seek to assert a  right  of entry at port itself.

In Case C-370/90 R v Immigration Appeal Tribunal and Surinder Singh ex parte SSHD [1992] ECR I-4265, the CJEU held that where a national of one EU Member State exercises an EU law right to work or pursue self-employed activity in another EU Member State, she is entitled (on her return to her “home” Member State) to be joined or accompanied by a spouse who is a third-country national, on terms no more onerous than those that would apply if she were seeking to have her spouse join her in a Member State other than her home Member State.

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