Mugabe’s “ We are not Gays ” UN Speech: On Risk on Return to Zimbabwe, Would the UK Tribunal still Hold that this is a Rabble –Rousing Distraction ?

The Telegraph reported on 29 September 2015 that, Zimbabwean president Robert Mugabe strayed from his script in startling fashion on Monday evening, and blurted out: “We are not gays” during his UN General Assembly speech. The 91-year-old used his speech to criticise the UN for its “archaic” organisation which, he argued, excluded the poorest countries. He criticised EU sanctions against his country, and voiced his anger at the Security Council’s failure to represent developing nations. But it was during a section in which he criticised the UN for trying to impose human rights rules on countries that he made the off-the-cuff comments. “We reject the politicisation of this important issue and the application of double standards to victimise those who think and act independently of the self-anointed prefects of our time,” he said. “We equally reject attempts to prescribe ‘new rights’ which are contrary to our values, norms, traditions and beliefs.” He then blurted out: “We are not gays!” Homosexuality is illegal in Zimbabwe, and Mr Mugabe has made no secret of his distain for homosexuals.

The Country Guidance case of LZ (homosexuals) Zimbabwe CG [2011] UKUT 00487 (IAC) by the Upper Tribunal noted at paragraph 20 of that decision that, President Mugabe is most vociferous. He has blamed the LBGT community for Africa’s ills and repeatedly denounced its members as “worse than pigs and dogs.”  And at paragraph 103 of their decision, “The public expression of homophobia in Zimbabwe is relatively recent and politically motivated – more of a rabble-rousing distraction”. LZ however concluded among other matters that despite there being much public expression of extreme homophobia at the highest levels in recent years, applying HJ & HT [2010] UKSC 31, [2010] Imm AR 729, there is in Zimbabwe no general risk to gays or lesbians. The Tribunal found that prosecutions are very rare. Lesbianism is not criminalised. Although some homosexuals suffer discrimination, harassment, intimidation, violence and blackmail from the general public and the police, the Upper Tribunal concluded in LZ that there is no general risk. They also concluded that “corrective rape” is rare, and does not represent a general risk. The Tribunal further   considered that GALZ (Gays and Lesbians of Zimbabwe) had taken a realistic view ie that Zimbabwe is, “not the worst place in the world to be gay or lesbian even though the President, government officials and church leaders have whipped up a climate of hysterical homophobia”.

LZ had sought sought asylum in 2009 in the UK, based on the risk of persecution as a lesbian. Although the outcome in LZ is somewhat restrictive having regard to the reasoning and conclusions therein , LZ’s appeal itself was allowed on refugee grounds on the basis that although the Tribunal find that LZ would be personally discreet in Zimbabwe, by choice, nevertheless, her sexual identity, in the context of her family connections among the Zimbabwean elite, gave rise to a risk. It was considered that there were no findings on this family relationship in the initial Judge’s decision determination. It is not however possible to extract much from the Upper Tribunal’s decision regarding LZ ‘s actual personal circumstances. The Tribunal noted from the start that LZ did not rely only on general risk to homosexuals, or to female homosexuals but that she relied on her unique circumstances – it is however not clear what those unique circumstances are as the Tribunal stated that the   parties had agreed during proceedings that it was not desirable for their decision to make her identity public. The Tribunal thus gave her anonymity and acknowledged that they had not included matters likely to identify her in the main body of their decision.

The remarks made by President Mugabe a few days ago in relation to gay people and those noted   by the Upper Tribunal are not the only ones he has uttered.

On 30 June 2015 , Ibtimes in a news article titled, Zimbabwe President Mugabe Proposes To Obama, Mocks Gay Marriage Supreme Court Decision, stated, Zimbabwe’s President Robert Mugabe jokingly said he would travel to the White House and propose to U.S. President Barack Obama,…….. “I’ve just concluded since President Obama endorses the same-sex marriage, advocates homosexual people and enjoys an attractive countenance – thus if it becomes necessary, I shall travel to Washington, D.C., get down on my knee and ask his hand,” Mugabe, 91, was quoted as saying by Turkey-based news website AWDnews. Mugabe, who was elected Zimbabwe’s president in 1987, said the United States was run by perverted Satan-worshippers. “I can’t understand how this people dare to defy Christ’s explicit orders as our Lord prohibited mankind from sodomy,” he said, according to AWDnews. The Zimbabwean dictator, who strongly opposes homosexuality, has made countless controversial remarks against the LGBT community in the past. Mugabe, who is also the African Union chairperson, has said that gay people are lower than “pigs, goats and birds” and they should go to “hell,” according to Newsweek.”Let Europe keep their homosexual nonsense there and live with it. We will never have it here. The act [of homosexuality] is not humane,” Mugabe reportedly said in a July 2013 speech to his ruling Zanu PF party supporters. “Any diplomat who talks about homosexuality will be kicked out. There is no excuse and we won’t listen to them.” Homosexuality is barred in Zimbabwe and Mugabe has criticized Obama for encouraging gay rights on the African continent. “We have this American president, Obama, born of an African father, who is saying we will not give you aid if you don’t embrace homosexuality. We ask, was he born out of homosexuality?” Mugabe reportedly said at a 2013 campaign rally”.

LZ considered background evidence only up till 26 September 2011 – on the basis of President Mugabe’s subsequent several anti -gay statements following that decision including most recently and also having regard to relevant recent background evidence,  could this be good enough reason to argue a departure from LZ ?

RELEVANT INTERNATIONAL LAW

The legislative framework to these types of applications/appeals includes international and European Union law including the Refugee Convention and the European Convention on Human Rights and the Council Directive 2004/83/EC.

Article 1A(2) of the Convention relating to the Status of Refugees 1951, as applied by the 1967 Protocol, provides that a refugee is a person who:

“…owing to well-founded fear of being persecuted for reasons of

race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country…”

Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, provides:

“Article 9

Acts of persecution

  1. Acts of persecution within the meaning of article 1 A of the Geneva Convention must:
(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or

 

(b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a).
  1. Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of:
(a) acts of physical or mental violence, including acts of sexual violence;

 

(b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner;

 

(c) prosecution or punishment, which is disproportionate or discriminatory;

 

(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;

 

(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2);

 

(f) acts of a gender-specific or child-specific nature.
  1. In accordance with Article 2(c), there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1”.

“Article 10

Reasons for persecution

  1. Member States shall take the following elements into account when assessing the reasons for persecution:
(a) the concept of race shall in particular include considerations of colour, descent, or membership of a particular ethnic group;

 

(b) the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief;

 

(c) the concept of nationality shall not be confined to citizenship or lack thereof but shall in particular include membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State;

 

(d) a group shall be considered to form a particular social group where in particular:

members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and

 

that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society;

depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this Article;

 

(e) the concept of political opinion shall in particular include the holding of an opinion, thought or belief on a matter related to the potential actors of persecution mentioned in Article 6 and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant.
  1. When assessing if an applicant has a well-founded fear of being persecuted it is immaterial whether the applicant actually possesses the racial, religious, national, social or political characteristic which attracts the persecution, provided that such a characteristic is attributed to the applicant by the actor of persecution”.

SOME RELEVANT CASELAW

HJ (Iran) & HT (Cameroon) v SSHD [2010] UKSC 31  concerned appeals which raised the question as to the test to be applied when considering whether a gay person who is claiming asylum under the Refugee Convention has a well-founded fear of persecution in the country of his nationality based on membership of that particular social group.

Lord Hope said at paragraph 35:

“This brings me to the test that should be adopted by the fact-finding tribunals in this country… It is necessary to proceed in stages.

(a) The first stage, of course, is to consider whether the applicant is indeed gay. Unless he can establish that he is of that orientation he will not be entitled to be treated as a member of the particular social group. But I would regard this part of the test as having been satisfied if the applicant’s case is that he is at risk of persecution because he is suspected of being gay, if his past history shows that this is in fact the case.

(b) The next stage is to examine a group of questions which are directed to what his situation will be on return. This part of the inquiry is directed to what will happen in the future. The Home Office’s Country of Origin report will provide the background. There will be little difficulty in holding that in countries such as Iran and Cameroon gays or persons who are believed to be gay are persecuted and that persecution is something that may reasonably be feared. The question is how each applicant, looked at individually, will conduct himself if returned and how others will react to what he does. Those others will include everyone with whom he will come in contact, in private as well as in public. The way he conducts himself may vary from one situation to another, with varying degrees of risk. But he cannot and must not be expected to conceal aspects of his sexual orientation which he is unwilling to conceal, even from those whom he knows may disapprove of it. If he fears persecution as a result and that fear is well-founded, he will be entitled to asylum however unreasonable his refusal to resort to concealment may be. The question what is reasonably tolerable has no part in this inquiry.

 (c) On the other hand, the fact that the applicant will not be able to do in the country of his nationality everything that he can do openly in the country whose protection he seeks is not the test. As I said earlier (see para 15), the Convention was not directed to reforming the level of rights in the country of origin. So it would be wrong to approach the issue on the basis that the purpose of the Convention is to guarantee to an applicant who is gay that he can live as freely and as openly as a gay person as he would be able to do if he were not returned. It does not guarantee to everyone the human rights standards that are applied by the receiving country within its own territory. The focus throughout must be on what will happen in the country of origin.

(d) The next stage, if it is found that the applicant will in fact conceal aspects of his sexual orientation if returned, is to consider why he will do so. If this will simply be in response to social pressures or for cultural or religious reasons of his own choosing and not because of a fear of persecution, his claim for asylum must be rejected. But if the reason why he will resort to concealment is that he genuinely fears that otherwise he will be persecuted, it will be necessary to consider whether that fear is well founded.

 (e) This is the final and conclusive question: does he have a well-founded fear that he will be persecuted? If he has, the causative condition that Lord Bingham referred to in Januzi v Secretary of State for the Home Department [2006] 2 AC 426, para 5 will have been established. The applicant will be entitled to asylum.

36.It should always be remembered that the purpose of this exercise is toseparate out those who are entitled to protection because their fear of persecution is well founded from those who are not. The causative condition is central to the inquiry. This makes it necessary to concentrate on what is actually likely to happen to the applicant. As Lord Walker says in para 88, the inquiry is directed to what will happen in the future if the applicant is returned to his own country. An approach which disregards what is in fact likely to occur there in the case of the particular applicant is wrong and should not be adopted”

 Lord Rodger said at paragraph 82:

 “When an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality.

If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant’s country of nationality.

If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country.

If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution – even if he could avoid the risk by living “discreetly”.

If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so.

If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, e g, not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay.

If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution. To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect – his right to live freely and openly as a gay man without fear of persecution. By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him”.

SOME BACKGROUND EVIDENCE AFTER LZ

The contentious issue in LZ appeared to be the lack of supporting background evidence to support the arguments regarding the general risk of persecution of gays in Zimbabwe.

The Tribunal in LZ noted at paragraphs   34 of their decision, that GALZ at interview said that they were not aware of any cases of consenting adults prosecuted for sodomy in 2009, 2010 or 2011. At paragraph 35 of their decision, it was noted that ZLHR were similarly not aware of any convictions for sodomy in 2009, 2010 or 2011. They were aware of threats of arrest being used regularly to harass homosexual men and women.   At paragraph 41 of their decision, the Tribunal observed that Zimbabwe has a lively press, although largely subservient to President Mugabe. There were active human rights organisations which follow gay and lesbian issues, and publish reports. The Tribunal stated that if consensual homosexual conduct was being prosecuted, even in the lower courts with minimal penalties, they considered that there would have been some press reporting, and that organisations like GALZ and ZLHR would know about it. It was noted the other sources before the Tribunal including the US State Department Country Report, consistently stated that there have been no recent prosecutions of consensual homosexual conduct. To the Tribunal, the only conclusion sensibly available was that such conduct is not prosecuted to any meaningful extent. At paragraph 49 of their decision, the Tribunal noted murders with a homophobic element may of course occur in Zimbabwe, and may not appear as such in any public record. It was stated that neither party referred the Tribunal to any evidence of such events and the Tribunal had nothing to support the proposition that this is a real risk to homosexuals of either gender. At paragraph 58 of their decision the Tribunal stated that from the references made to the sources before them, their assessment is that “corrective rape” was rare. The Tribunal accepted that it did happen, and of its nature must often be a hidden crime, but it did not represent a real risk to homosexuals of either gender. At paragraph 72 of their decision, the Tribunal noted that at the end of 2004 there were 9 different regional groups or associations affiliated with GALZ. There was no evidence that any of these regional groups subsequently ceased to function. It followed that in these nine towns or cities there are some, although perhaps limited, opportunities for homosexuals to meet and socialise – Bulawayo; Chipinge; Chitungwiza; Marondera; Masvingo; Mutare; Penhalonga; and Victoria Falls. The Tribunal also noted at paragraph 82 of their decision that GALZ is a long established organisation, with nine affiliated organisations across Zimbabwe, whose existence is tolerated. If a lesbian is willing to join the organisation (which can be done on line without visiting Harare) GALZ is able to provide some support to her, including practical support in providing access to lawyers (through ZLHR), and to doctors and clinics which are not homophobic.

It has been several years since LZ was notified and as such references will be made to some readily available recent background evidence below to see whether the Tribunal’s assessment and reasoning having regard to current background evidence could possibly remain the same:

“The Zimbabwean government should immediately stop persecuting members of Gays and Lesbians of Zimbabwe (GALZ), Human Rights Watch said today in a letter to Prime Minister Morgan Tsvangirai and President Robert Mugabe. On August 20, 2012, police officers entered and occupied the offices of GALZ in Harare for six hours, producing a warrant only after the GALZ lawyers demanded it. They confiscated documents, advocacy materials, and computers. GALZ advocates for the rights of lesbian, gay, bisexual, and transgender (LGBT) people in Zimbabwe. “This latest police raid on the country’s leading LGBT group shows the government’s intolerance of the rights of Zimbabwe’s sexual and gender minorities,” said Monica Tabengwa, LGBT researcher at Human Rights Watch. “By intimidating and harassing members of GALZ, the authorities are violating their rights to freedom of expression and association.” In the past decade, Zimbabwean authorities have intensified attacks against members of GALZ including intimidation, arbitrary arrests, and beatings. Mugabe, in office since 1980, has been at the forefront of anti-gay harassment, repeatedly using his office to insult and denigrate gay and lesbian Zimbabweans. He has vowed not to allow the inclusion of LGBT rights in Zimbabwe’s new constitution, which is being drafted”- 27 August 2012 Zimbabwe: End Attacks on LGBT People, https://www.hrw.org/news/2012/08/27/zimbabwe-end-attacks-lgbt-people

“Zimbabwean President Robert Mugabe on July 5 said authorities should arrest gays and lesbians who don’t conceive children. “I should like to shut them-up in some room and see if they get pregnant; if they don’t then it’s jail because they have claimed they can have children,” the tabloid New Zimbabwe quoted Mugabe as saying during a rally in Harare, the country’s capital, at which he unveiled the platform of his party, ZANU-PF, ahead of the African nation’s July 31 elections. “So, to that kind of rot, we say no, no, no, no!” The tabloid further reported that Mugabe criticized the Anglican Church for blessing same-sex marriages. The Zimbabwean Broadcasting Corporation noted Mugabe also blasted President Obama’s support of nuptials for gays and lesbians. “Obama said he wished that we in Africa accepted gay marriages,” Mugabe said. “Parents, tell your children that we are against gay marriage.” ,8 July 2013, Zimbabwe president: Arrest gays who don’t conceive children – See more at: http://www.washingtonblade.com/2013/07/08/zimbabwe-president-arrest-gays-who-dont-conceive-children/#sthash.c2Zrq1tN.dpuf

“Harare, February 22, 2014 – Zimbabwean authorities have stepped up their antipathy towards the activities of gays and lesbians after summoning the leader of the Gays and Lesbians of Zimbabwe (GALZ) to stand trial Monday on charges of running an “unregistered” organisation. Police recently served summons on GALZ chairperson Martha Tholanah to appear in court 5 at Harare Magistrates Court where her trial is scheduled to commence… Human rights groups fear that by pressing ahead with the prosecution of the GALZ leader even though the High Court recently exempted GALZ from registering under the PVO Act,  representatives of the National Prosecuting Authority could be abusing their powers and bend on persecuting gays and lesbians in Zimbabwe. President Robert Mugabe and his Zanu PF party supporters are infamous for their anti-homosexual stance. Mugabe has described gays and lesbians as “worse than pigs and dogs” while in recent years, GALZ has been banned from participating at some of the country’s high profile fairs and meetings”. 22 February 2014, Zim Authorities Target GALZ In Renewed Judicial Persecution, http://www.radiovop.com/index.php/national-news/10637-zim-authorities-target-galz-in-renewed-judicial-persecution.html

“BULAWAYOA 22-year-old man who allegedly stabbed a gay for proposing love to him has been acquitted by a Bulawayo court. Bongani Phiri was appearing before regional magistrate Sikhumbuzo Nyathi facing attempted murder charges. Phiri, who pleaded not guilty to the charges, indicated during his defence that he was constantly being nagged and harassed by the complainant Walter Kwanele Ndlovu over a relationship. “According to the complainant, Phiri, behaved like a gay and had submitted that the latter would sometimes caress him without his consent. Before passing his verdict, magistrate Nyathi cited among other issues the contradiction and inconsistencies of evidence put forward by the State and that of the witnesses. Since Phiri was being charged for attempted murder, Nyathi said he was not satisfied that he had an intention to kill when he committed the alleged crime. With regard to the nature of the case, Nyathi also admitted that issues pertaining to homosexuality in Zimbabwe were controversial. “In Zimbabwe, the issue of homosexuality is a controversial one to such extent that it has drawn into the fray, the highest office in the country. Some people are known to hold strong views on homosexuality,” he said. As a result Nyathi, found Phiri not guilty. According to the State papers, on October 26, last year at around 10pm outside a shebeen in Nguboyenja suburb, the two engaged in an argument after Phiri accused Ndlovu of being gay. The altercation got nastier which led to Phiri drawing an okapi knife from his pocket before stabbing the complainant on the upper left part of the chest. The complainant sustained a deep cut and had to be ferried to a hospital”, 26 March 2014, Gay Stabber Acquitted, http://www.dailynews.co.zw/articles/2014/03/26/gay-stabber-acquitted?

“MDC-T councillor for Harare’s Ward 33 (Budiriro) Sydney Chirombe, who was allegedly caught having sex with another man last week, yesterday said the State’s case against him was weak because the medical affidavit did not indicate any anal penetration. Chirombe (49) is facing a sodomy charge following his arrest last week in Willowvale where he was allegedly having sex with Joseph Muchena (23) in a car. The two appeared before Harare magistrate Mr Milton Serima jointly charged with sodomy. Prosecutor Ms Sharon Mashavira opposed a bail application by Chirombe’s lawyer, Mr Shadreck Chisoko.“The accused were apprehended while committing the offence although they are yet to be convicted their presumption of innocence falls away….. Ms Mashavira alleges that at around 2:30am on May 15, a police patrol unit in Glen Norah approached a Toyota Noah (ACH 7644) parked on Godwin Road in Willowvale, and found Chirombe sodomising Muchena on the front passenger seat. A half-naked Chirombe allegedly tried to flee from the scene but was arrested.”. 22 May 2014, Sodomy Pair Remanded in Custody, http://www.zimbabwesituation.org/?p=39559

22 year-old Joseph Muchena and Sydney Chirombe aged 49 years had been on trial since early July on charges of committing sodomy in contravention of Section 73 of the Criminal Law (Codification and Reform) Act Chapter 9:23. State prosecutors claimed that Muchena, who was represented by Kennedy Masiye of Zimbabwe Lawyers for Human Rights and Chirombe, who was represented by Shadreck Chisoko acted unlawfully when the two men allegedly performed anal sexual intercourse on 15 May 2014 while in a vehicle parked along Godwin road in Willowvale industrial area in Harare.But Muchena and Chirombe on Monday 28 July 2014 walked to freedom after being acquitted at the close of the State case by Harare Magistrate Renika Dzikiti who ruled that there was no evidence produced in court to prove an essential element of the offence”   28 July 2014, Court acquits duo accused of sodomy http://www.thezimbabwean.co/2014/07/court-acquits-duo-accused-of/

“The young man gathered himself and with difficulty said he thought he had contracted a sexually transmitted disease. As he removed his pants in front of the nurse, she shouted: “I knew when you entered that something is wrong with you! Are you a man or a woman?” Stunned, Tavira pulled up his pants, walked out of the room and never went back. This wasn’t the first time he was treated this way.“I, like every other gay person, has to give in to a lot of insults and degrading inhuman utterances every day,” Tavira confides after relating the recent incident. He is open about his sexuality and the discrimination he faces at the hands of health personnel in Zimbabwe. For Zimbabwe’s LGBTI community, disclosing one’s sexual orientation is a major barrier to getting accurate, appropriate and relevant medical treatment. Gays and Lesbians of Zimbabwe (Galz) is an organisation that works to protect the interests of this minority group in the country. Its programmes manager Samuel Matsikure highlighted that as Zimbabwe’s leadership has openly denounced homosexuality, discrimination and stigma against the LGBTI community goes unpunished and will take a long time to uproot. President Robert Mugabe has made it clear that homosexuality will never find a place in Zimbabwe……This state-endorsed homophobia has made it difficult for Galz to get HIV and Aids prevention messages out to its 2100 members and the LGBTI community at large, who face a backlash from government and society and receive no support from public health institutions. About 15% of Zimbabwe’s adult population is living with HIV and Aids. There is currently no data available on the LGBTI community specifically. “The hostile environment the gay community is exposed to, especially at health facilities in the country, has impacted negatively on their rights to basic services such as health,” Matsikure said. “Some have been keeping sexually transmitted infections for six to eight months without seeking help.”“Such discrimination and stigma at the highest level makes our lives difficult and we remain a secretive and isolated community always fearing for our lives,” Tavira added”. 7 October 2014, Zimbabwe: The LGBTI community’s struggle for healthcare access http://voicesofafrica.co.za/zimbabwe-lgbti-communitys-struggle-healthcare-access/

“LGBT individuals reported widespread societal discrimination based on sexual orientation. In response to social pressure, some families reportedly subjected their LGBT members to “corrective” rape and forced marriages to encourage heterosexual conduct. Such crimes rarely were reported to police. Women in particular were subjected to rape by male family members. LGBT persons often left school at an early age due to discrimination and had higher rates of unemployment and homelessness. Many persons who identified themselves as LGBT did not seek medical care for sexually transmitted diseases or other health problems due to fear that health providers would shun them…” Zimbabwe 2014, Human Rights Report, US Department of State, www.state.gov/documents/organization/236634.pdf

Two prisoners who were allegedly sodomising each other, made so much noise that they woke up another prisoner, who caught them red-handed in the act. Christopher Jani (36) allegedly had “noisy” sex with his alleged male lover Mbonisi Ncube (28) in a cell at around 3am on 3 March.Another prisoner, Edgar Majasi, allegedly woke up after hearing “high pitched sounds of delight” as the pair had sex and removed a blanket with which the “lovebirds” had covered themselves. Majasi, who said he was disgusted by what he saw, reported the matter to prison officials who forwarded a report to the police leading to the duo’s arrest. Jani and Ncube appeared before magistrate Tancy Dube facing a charge of sodomy. They were not asked to plead and they were remanded in custody to March 30. However, they denied having sex saying Majasi only found them sharing a blanket” – 18 March 2015, Prisoners caught red-handed in sodomy act http://bulawayo24.com/index-id-news-sc-national-byo-64616.html

“A former Zimbabwean civil servant is reportedly challenging his dismissal from his job after he was arrested for allegedly attending a gay party at a hotel in Bulawayo. The man, Raymond Sibanda, was arrested together with many others after police raided a Gays and Lesbians’ Association of Zimbabwe (Galz) end of year party in December 2013, according to a New Zimbabwe.com report…….Sibanda has since moved to file an application at a labour court in Bulawayo, challenging his dismissal, according to the state-owned Chronicle newspaper. He argued, among other things, that being present at the hotel at the same time as the Galz event did not mean he was part of it. Sibanda cited the Minister of Youth, Indigenisation and Economic Empowerment, Patrick Zhuwawo and the Civil Service Commission (CSC) as the respondents. “The respondents alleged that I was associated with gays, but the supreme law of the country, which is the Constitution under section 58, states that every person has freedom of assembly and association,” Sibanda argued. “Are the respondents therefore claiming that I was not supposed to be at Windermere Hotel just because there was a Galz party being hosted there?” But the respondents maintained Sibanda’s conduct was tantamount to tarnishing the image of government. They also said the decision by the disciplinary committee to fire Sibanda followed adequate evidence linking him to the alleged offence”.25 September 2015, Zimbabwe civil servant fights dismissal after being arrested at gay party, http://www.timeslive.co.za/africa/2015/09/25/Zimbabwe-civil-servant-fights-dismissal-after-being-arrested-at-gay-party

CONSIDERATION AND CONCLUSION

The Upper Tribunal in LZ, did say that personal circumstances place some gay men and lesbians at risk. Although not decisive on its own, being openly gay may increase risk. A positive HIV/AIDS diagnosis may be a risk factor. Gay rights activists and other persons who openly campaign for gay rights in Zimbabwe face the risk of arbitrary arrests by the police, and the harassment by state agents.   As regards fear of ill-treatment by non-state actors, the Upper Tribunal in LZ found that the police and other state agents do not provide protection.

There may be a paucity of background evidence as regards actual convictions for acts of sodomy between consenting adults, however there are indeed meaningful prosecutions as per the background evidence in relation to acts of sodomy between consenting adults and indeed sometimes a mere perception of being gay  is enough to be subjected to discriminatory behavior. As regards the suggestions that GALZ can provide support to gay people, the background evidence after the decision in LZ shows the persecution of the group itself. In combination with prosecution of consenting adults for sodomy as well as President Mugabe’s repeated anti – gay statements over the years, this belies GALZ’ s statements of 2011 that Zimbabwe is not the worst place in the world to be gay.

The Tribunal in LZ also noted at paragraph 86 of their decision a BBC news item of 24 October 2011 which stated that the then Zimbabwe’s Prime Minister Morgan Tsvangirai had reversed his position on gay rights, saying he now wanted them enshrined in a new constitution. He had told the BBC that gay rights were a “human right” that conservative Zimbabweans should respect. At paragraph 88 of their decision, the Tribunal in LZ stated that they recognised that in making this a public issue, Mr Tsvangirai’s words may have the short term effect of provoking even more homophobic rhetoric, however they thought it also showed the underlying reality that the general public is not as hostile to homosexuals as the President’s political bombast suggested. The Tribunal stated that the news item had not altered their conclusions, but it tended to reinforce them. General elections were however  held in Zimbabwe on 31 July 2013. Robert Mugabe, was re-elected as President however the elections ended the inclusive government between Robert Mugabe’s Zanu PF party and Morgan Tsvangirai’s Movement for Democratic Change, MDC.  Mr Tsvangirai is no longer Prime Minister in Zimbabwe.

The situation in Zimbabwe may be argued to be indeed hostile towards people of gay orientation having regard to the recent background evidence and rather than being a mere rabble-rousing rouse, in combination,   President Mugabe’s recent statement only makes stronger the argument that the case of LZ should  no longer be followed on issues of general risk.

Somalians and Protection:ECHR Gives Great Weight to UK Upper Tribunal ‘s Assessment of Risk On Return To Somalia

Somalians seeking to resist return  to Somalia may seek to rely on several heads of protection  such as upon the Refugee Convention, Article 3 of the ECHR, Humanitarian Protection and any relevant exceptional personal circumstances.

In the Upper Tribunal in MOJ & Ors (Return to Mogadishu) Somalia CG 2014, UKUT 00442(IAC)   the issues were whether the current situation in Mogadishu was such as to entitle nationals of Somalia whose home area is Mogadishu or whose proposed area of relocation is Mogadishu to succeed in their claims for refugee status, humanitarian protection status under Article 15(c) or protection against refoulment under Articles 3 or 2 of the ECHR solely on the basis that they are civilians and do not have powerful actors in a position to afford them adequate protection.  The Upper Tribunal in MOJ 2014 however did not consider the position of clans(including minority clans/groups)  in southern and northern outside of Mogadishu. The Upper Tribunal in their decision sought to narrow the categories of those persons who might be considered at risk on return to Somalia and the European Court of Human Rights, has this month sought to place considerable weight upon the case of MOJ 2014 in concluding that a Somali woman aged 26 would not be at risk on return having regard to Article 3 of the ECHR in the case of R.H v Sweden 4601/14 notified on 10 September 2015.

POSSIBLE HEADS OF CLAIM

(1)Asylum Claim -Majority and Minority Clan Groups:

A person may fear ill- treatment by non- actors on account of a person’s membership of a majority clan or minority group.

The Upper Tribunal in MOJ 2014, however  stated at paragraph 77 of their judgement, ” Perhaps good indication of the very real change that has taken place in Mogadishu is that some commentators when referring to a “minority clan” now base that not on ethnicity but the fact of the clan being in a numerical minority in a particular area, despite its status as a majority clan on a national basis. It is clear that there have been very significant population movements in Somalia in recent years “.

The Tribunal in MOJ 2014  held  that the significance of clan membership in Mogadishu had changed. Clans now provide, potentially, social support mechanisms and assist with access to livelihoods, performing less of a protection function than previously. There are no clan militias in Mogadishu, no clan violence, and no clan based discriminatory treatment, even for minority clan members.  On the basis of MOJ 2014, minority clan/group members are unlikely to face persecution on the basis of their ethnic or social group alone in Mogadishu.

The Home Office however  still leave room for consideration of claims based on fear of return based on clan membership in their Country Information and Guidance, South and Central Somalia: Majority Clans and Minority Groups- March 2015.    The Guidance clarifies  that the four  ‘noble’ (majority), clans are the  Darod, Hawiye, Isaaq, and Dir, while two further clans, the Digil and Mirifle, (also collectively referred to as Rahannweyn)  take an intermediate position between the main clans and the minority groups.

Minority  groups are considered to comprise of ethnic and religious minorities and occupational/out-caste groups. The latter are of the same ethnicity as members of the majority clans. Ethnic and religious minorities include the urban coastal  communities of the Benadir region(the Reer Hamar, Barawani-also known as Reer Brava or Bravanese-and the Bajuni) and the Bantu. Occupational and out-caste groups include members of the  Tumal, Midgan and Yibir.  Members of majority clans can be considered minorities where they live in an area  mainly populated by other majority clans.

The Home Office Guidance clarifies that while there have been reports of clashes between majority clans, country information does not indicate that there is widespread discrimination of majority clans because of their ethnicity/clan alone. It is therefore unlikely that any Somali belonging to one of the majority  clan families( Hawiye, Darood Dir and Isaaq)- or immediate clan groups or associated sub-clans- is able to demonstrate that they have a well founded fear  of ill treatment on return on their basis of their clan affiliation alone.

The Guidance  also states that  country information generally indicates that members of minority groups are likely to face political, social, economic and judicial discrimination, and human rights abuses including harassment and violence, killings and torture, rape, kidnapping for ransoms, and looting of land and property which in some circumstances may amount to persecution, however each case should be considered on its own taking into account a person’s personal circumstances. The Home Office consider that there is existing case-law that considers the position of minority groups and remains relevant  to assessing cases for groups particularly those outside Mogadishu, however that caselaw is based on country information up to 2005/2006 and so does not take into account recent changes in the country’s  human rights situation and in clan dynamics. The Home Office consider that whether a person from a minority group is at risk of persecution in areas outside of Mogadishu will depend on the minority group to which the person belongs; their ability to obtain protection and/ or support from a dominant clan; the area to which they are returning and their individual circumstances.

The Guidance considers that as regards minority groups who become Internally Displaced Persons(IDP) in any part of south and central Somalia and who have no choice but to live in an IDP camp are likely  to be at real risk of persecution on the basis of their social group or ethnic origin and are likely to qualify  for asylum. This is because they may face discrimination and various human rights violations including economic exploitation, extortion, forced labour, harassment and forced evictions which amounts to persecution. This particularly applies to  single women or a woman who is head of a household who may also be liable to gender-based violence and trafficking.

The Home Office also accept that minority group women without family or clan support or a real prospect of securing access to a livelihood are in general, likely to be at real risk on return and are likely to qualify for asylum. This is because women from minority groups  have experienced gender- based violence, rape, domestic violence, robbery, exploitation and economic discrimination. Crimes against women especially amongst women from minority groups are often perpetrated with impunity and women and girls  from minority groups and clans suffer a lack of access to justice, due process and clan protection.

The Home Office Guidance also sets out  issues in relation to internal relocation.  Internal relocation to Mogadishu and other areas of south and central Somalia not controlled by Al Shabab may be a viable option depending on the facts of the case. Relocation to Mogadishu for a person who has no clan or family support, not in receipt of remittances from abroad and who has no real prospect of securing access to a livelihood in the city, is however likely to be unreasonable. Internal relocation to areas controlled by Al Shabab will not generally be viable.  Internal relocation to Somaliland and Puntland will only be viable for former residents and members of locally based minority groups.

(2)Asylum Claim – Imputed political opinion- Fear of Forcible recruitment by Al Shabab or Association with Al Shabab:

AMM and others found that on the assumption that Al-Shabab’s likely behaviour towards those who transgress its rules is as found in their determination, the position is as “extreme” as the factual basis in RT (Zimbabwe) [2010] EWCA Civ 1285. In the light of RT, a person from an Al-Shabab area who can show they do not genuinely adhere to Al-Shabab’s ethos will have a good claim to Refugee Convention protection, once outside Somalia (subject to internal relocation and exclusion clause issues), regardless of whether the person could and would “play the game”, by adhering to Al-Shabab’s rules

The Tribunal in MOJ 2014 however subsequently found in particular, that a claimant will not be at real risk simply on account of having lived in a European location for a period of time of being viewed with suspicion either by the authorities as a possible supporter of Al Shabaab or by Al Shabaab as an apostate or someone whose Islamic integrity has been compromised by living in a Western country. The Upper Tribunal found that there had been durable change in the sense that the Al Shabaab withdrawal from Mogadishu was complete and there was no real prospect of a re-established presence within the city. There was no real risk of forced recruitment to Al Shabaab for civilian citizens of Mogadishu, including for recent returnees from the West.

(3)Asylum Claim – Women and Gender Based Persecution:

The Home Office Country Information and Guidance , Somalia: Women fearing Gender -Based Harm/Violence , February 2015,  accepts that women in  Somalia form a particular social group within the meaning of the 1951 UN Refugee Convention. This because they share an  immutable( or innate) characteristic  – their gender- that cannot be changed, and they form a distinct group in society as evidenced by widespread  discrimination in their fundamental rights.

The Upper  Tribunal in AMM and Others (conflict; Humanitarian crisis; returnees; FGM) Somalia CG 2011 ,UKUT 000445 (IAC)  found the incidence of Female Genital Mutilation(FGM ) in Somalia as universally agreed to be over 90%. The societal requirement for any girl or woman to undergo  FGM is strong. In general an uncircumcised, unmarried woman up to the age of 39 will be at real risk of suffering FGM. The risk will be greatest in cases where both parents are in favour of FGM. Where both are opposed, the question of whether the risk will reach the requisite level will need to be determined by reference to the extent to which the parents are likely to be able to withstand the strong societal pressures. Unless the parents are from a socio-economic economic background that is likely to distance from mainstream social attitudes, or there is some other particular feature of their case, the fact of parental opposition may well as a general matter be incapable of eliminating the real risk to the daughter that others(particularly relatives) will at some point inflict FGM on her.

The February 2015 Home Office Guidance clarifies there is generalised and widespread discrimination towards women in Somalia. Sexual and gender- based violence including domestic violence, rape, sexual abuse exploitation and trafficking is widespread and committed with impunity by a range of actors including government security forces, members of armed opposition groups, militias, family and community actors and AMISOM peacekeepers.

The Guidance also states that women and girls  in Al- Shabab areas also face serious risks of being abducted and raped by Al- Shabab and forced into marriage with Al – Shabab fighters. They can also be forced to  work for All – Shabab as cleaners, cooks and porters. In some cases, girls have been used as suicide bombers as well. Female returnees  in particular face threats against the person in IDP camps, where the Somali National Police Force  are unable to provide protection, especially those belonging to minority clans. Further, women travelling without male friends or relatives are in general likely to face a real  risk of sexual violence as per paragraph  605 of AMM and others. Women who are without family/friends/clan connections or without resources are in general likely to be at risk of sexual and gender based violence on return. Factors to be taken into account include access to family support networks or clan protection and support, age, heath, economic status, family responsibilities, connection with the diaspora and other individual circumstances of the person.

The Home Office Guidancstates that FGM is almost universally practised throughout Somalia and a very strong cultural belief persists in its practise.

As regard protection issues, the Guidance states that in south and central Somalia(including Mogadishu)  effective system protection is in general unlikely to be available for women fearing sexual or gender based violence. The situation may be otherwise in Somaliland and Puntland where an assessment of whether effective protection is available needs to be considered in relation to the particular circumstances and profile of the person. Internal relocation to Mogadishu to avoid risk from gender based violence may be viable in some cases. Somaliland and Puntland in general only accept back persons who were former residents of those regions and are members of locally based clans or sub-clans. The practise is stated to be declining in Somaliland and Puntland and a woman may be less  likely to be at risk of being forced to undergo such a procedure there. The Guidance acknowledges that a woman who demonstrates a real risk or reasonable likelihood of ill-treatment  on return to Somalia on account of their gender and  who is also able to show that she is   unable to secure effective protection or relocate elsewhere in Somalia to escape that risk will qualify for asylum.

(4) Article 3 of the ECHR and Humanitarian Protection:

A claimant may resist removal  to Somalia on the basis that there is a general humanitarian or security situation in Somalia so severe as to make removal a breach of Article  3 of the ECHR.  Article 3 states, ” No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.   Removal may give rise to an issue under Article 3 of the ECHR where substantial grounds have been shown for believing that the person concerned if removed would face a real risk of being subjected to treatment contrary  to Article 3.

A claim may also be submitted on the basis that the security situation in Somalia presents a real risk which threatens life or person such that removal would be in breach of Article 15(c) of European Council Directive 2004/83/C of 29 April 2004 ( the “Qualification Directive”). Since 9 October 2006, UK legislation and policy on Humanitarian Protection has reflected the subsidiary protection provisions of Articles 15-19 of the Qualification Directive. Subsidiary protection is intended to be complementary and additional to the protection available in the Refugee Protection. It is only if the person does not qualify under the Refugee Convention that an assessment  needs to be made of the need for protection firstly under Article 3 of the ECHR and if that is unsuccessful, under Article15(C) of the Qualification Directive, ie claim for Humanitarian Protection.

Humanitarian Protection as set out under paragraph 339C of the Immigration Rules is commonly referred to as ‘subsidiary protection’, and is defined under Article 15 of the Qualification Directive.

Article 2(e) of the Qualification Directive provides;

“For the purposes of this Directive:

………..(e) ‘person eligible for subsidiary protection’ means a third country national…. who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, … would face a real risk of suffering serious harm as defined in article 15, … and is unable, or, owing to such risk,unwilling to avail himself of the protection of that country.”

Article 15 provides of the Qualification Directive provides ;

“Serious harm

Serious harm consists of

(a) death penalty or execution; or

(b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or

(c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict”

European and domestic caselaw has established the interpretation of Article15(C), firstly in the Court of Justice of the European Union, in Elgafaji  2009 EUECJC-465-07, secondly in the Court of Appeal, in QD(Iraq) v SSHD 2009 EWCA Civ  620 and in the summaries of the correct legal position as set out in the Upper Tribunal Country Guidance cases of HM and Others, (Article 15(C) Iraq CG 2012 UKUT 00409 (IAC): AMM and Others(conflict; humanitarian crisis; returnees; FGM) Somalia CG 2011 UKUT 00445(IAC) and AK( Article 15(c) Afghanistan CG (2012) UKUT 163).

On assessing whether the general security situation may breach Article 15c, the case-law of QD (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ 620, held at parpgah 36 of the judgement that whilst there is no need for an internal armed conflict to be ‘exceptional’ in its nature for 15c to be breached, what is required is an intensity of indiscriminate violence ‘which will self-evidently not characterise every such situation and which is great enough to meet the test set out in Elgafagi.

QD Iraq summarises at paragraph 40 of its judgement:

“We would put the critical question, in the light of the Directive, of the ECJ’s recent jurisprudence and of our own reasoning, in this way:

Is there in Iraq or a material part of it such a high level of indiscriminate violence that substantial grounds exist for believing that an applicant such as QD or AH would, solely by being present there, face a real risk which threatens his life or person?”.

The two questions referred to the ECJ in Elgafaji  2009 EUECJC-465-07 by the Dutch Raad van State (council of state) were these:

“1. Is Article 15(c) of [the Directive] to be interpreted as offering protection only in a situation in which Article 3 of the [ECHR], as interpreted in the case-law of the European Court of Human Rights, also has a bearing, or does Article 15(c), in comparison with Article 3 of the [ECHR], offer supplementary or other protection?

  1. If Article 15(c) of the Directive, in comparison with Article 3 of the [ECHR], offers supplementary or other protection, what are the criteria in that case for determining whether a person who claims to be eligible for subsidiary protection status runs a real risk of serious and individual threat by reason of indiscriminate violence within the terms of Article 15(c) of the Directive, read in conjunction with Article 2(e) thereof?”

The Court held, that “it is article 15(b) of the Directive which corresponds, in essence, to article 3 of the ECHR”. It continued (§28):

“By contrast, article 15(c) of the Directive is a provision, the content of which is different from that of article 3 of the ECHR, and the interpretation of which must, therefore, be carried out independently, although with due regard for fundamental rights, as they are guaranteed under the ECHR.”

The Court went on to address the question whether article 15(c) required proof of a threat directed at the individual applicant, and, if not, what was the correct test. It said:

“31 In order to reply to those questions, it is appropriate to compare the three types of ‘serious harm’ defined in Article 15 of the Directive, which constitute the qualification for

subsidiary protection, where, in accordance with Article 2(e) of the Directive, substantial grounds have been shown for believing that the applicant faces ‘a real risk of [such] harm’ if returned to the relevant country.

 32 In that regard, it must be noted that the terms ‘death penalty’, ‘execution’ and ‘torture or inhuman or degrading treatment or punishment of an applicant in the country of origin’, used in Article 15(a) and (b) of the Directive, cover situations in which the applicant for subsidiary protection is specifically exposed to the risk of a particular type of harm.

 33 By contrast, the harm defined in Article 15(c) of the Directive as consisting of a ‘serious and individual threat to [the applicant’s] life or person’ covers a more general risk of harm.

34 Reference is made, more generally, to a ‘threat … to a civilian’s life or person’ rather than to specific acts of violence. Furthermore, that threat is inherent in a general situation of ‘international or internal armed conflict’. Lastly, the violence in question which gives rise to that threat is described as ‘indiscriminate’, a term which implies that it may extend to people irrespective of their personal circumstances.

 35 In that context, the word ‘individual’ must be understood as covering harm to civilians irrespective of their identity, where the degree of indiscriminate violence characterising the armed conflict taking place – assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred – reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to the serious threat referred in Article 15(c) of the Directive.

36 That interpretation, which is likely to ensure that Article 15(c) of the Directive has its own field of application, is not invalidated by the wording of recital 26 in the preamble to the Directive, according to which ‘[r]isks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm’.

37 While that recital implies that the objective finding alone of a risk linked to the general situation in a country is not, as a rule, sufficient to establish that the conditions set out in Article 15(c) of the Directive have been met in respect of a specific person, its wording nevertheless allows – by the use of the word ‘normally’ – for the possibility of an exceptional situation which would be characterised by such a high degree of risk that substantial grounds would be shown for believing that that person would be subject individually to the risk in question.

 38 The exceptional nature of that situation is also confirmed by the fact that the relevant protection is subsidiary, and by the broad logic of Article 15 of the Directive, as the harm defined in paragraphs (a) and (b) of that article requires a clear degree of individualisation. While it is admittedly true that collective factors play a significant role in the application of Article 15(c) of the Directive, in that the person concerned belongs, like other people, to a circle of potential victims of indiscriminate violence in situations of international or internal armed conflict, it is nevertheless the case that that provision must be subject to a coherent interpretation in relation to the other two situations referred to in Article 15 of the Directive and must, therefore, be interpreted by close reference to that individualisation.

39 In that regard, the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection.

 40 Moreover, it should be added that, in the individual assessment of an application for subsidiary protection, under Article 4(3) of the Directive, the following may be taken into account:

– the geographical scope of the situation of indiscriminate violence and the actual destination of the applicant in the event that he is returned to the relevant country, as is clear from

Article 8(1) of the Directive, and

– the existence, if any, of a serious indication of real risk, such as that referred to in Article 4(4) of the Directive, an indication in the light of which the level of indiscriminate violence required for eligibility for subsidiary protection may be lower.…….

43 Having regard to all of the foregoing considerations, the answer to the questions referred is that Article 15(c) of the Directive, in conjunction with Article 2(e) of the Directive, must be interpreted as meaning that:

– the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances;

– the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place –- assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred — reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat.

44 It should also, lastly, be added that the interpretation of Article 15(c) of the Directive, in conjunction with Article 2(e) thereof, arising from the foregoing paragraphs is fully ompatible with the ECHR, including the case-law of the European Court of Human Rights relating to Article 3 of the ECHR (see, inter alia, NA. v. The United Kingdom, § 115 to 117 and the case-law cited).”

SOMALIA – DOMESTIC CASELAW ON ARTICLE 3 OF THE ECHR AND HUMANITARIAN PROTECTION

HH & others (Mogadishu: armed conflict: risk) Somalia CG [2008] UKAIT 00022:
Applying the definitions drawn from the Tadic jurisdictional judgment, the Upper Tribunal in HH and others found that for the purposes of paragraph 339C of the Immigration Rules and the Qualification Directive, on the evidence before them, an internal armed conflict exists in Mogadishu. The zone of conflict was confined to the city and international humanitarian law applied to the area controlled by the combatants, which comprised the city, its immediate environs and the TFG/Ethiopian supply base of Baidoa. The Upper Tribunal also decided that a person was not at real risk of serious harm as defined in paragraph 339C by reason only of his or her presence in that zone or area. Neither the TFG/Ethiopians nor the Union of Islamic Courts and its associates were targeting clans or groups for serious harm. Whilst both sides in the conflict had acted from time to time in such a way as to cause harm to civilians, they were not in general engaging in indiscriminate violence. Clan support networks in Mogadishu, though strained, had not collapsed. A person from a majority clan or whose background disclosed a significant degree of assimilation with or acceptance by a majority clan would in general be able to rely on that clan for support and assistance, including at times of displacement as a result of security operations, etc. Majority clans continued to have access to arms, albeit that their militias no longer controlled the city. The Upper Tribunal found that a member of a minority clan or group who had no identifiable home area where majority clan support could be found would in general be at real risk of serious harm of being targeted by criminal elements, both in any area of former residence and in the event (which is reasonably likely) of being displaced. That risk was directly attributable to the person’s ethnicity and was a sufficient differential feature to engage the Refugee Convention, as well as article 3 of the ECHR and paragraph 339C/article 15(c) of the Qualification Directive. The evidence disclosed no other relevant differentiating feature for the purposes of those Conventions and the Directive.

The Upper Tribunal considered that the evidence suggested that certain minority groups may be accepted by the majority clan of the area in question, so as to be able to call on protection from that clan. On the current evidence, it was therefore not appropriate to assume that a finding of minority group status in southern Somalia was itself sufficient to entitle a person to international protection, particularly where a person’s credibility was otherwise lacking.

AM & AM (armed conflict: risk categories) Somalia CG [2008] UKAIT 00091:

 The Upper Tribunal in AM & AM stated that when considering the question of whether a person is eligible for refugee protection on the basis of exposure to armed conflict, Adan [1998] 2 WLR 703 did not permit decision makers to reject their claims per se. A person may be able to succeed in a claim to protection based on poor socio-economic or dire humanitarian living conditions under the Refugee Convention or Article 15 of the Qualification Directive or Article 3, although to succeed on this basis alone the circumstances would have to be extremely unusual. In the context of Article 15(c) the serious and individual threat involved does not have to be a direct effect of the indiscriminate violence; it is sufficient if the latter is an operative cause. The Upper Tribunal decided that the Opinion of the Advocate General in Elgafaji, 9 September 2008 in Case C-465/07 did not afford an adequately reasoned basis for departing from the guidance given on the law in the reported cases of the Tribunal on Article 15(c), namely HH and others (Mogadishu: armed conflict: risk) Somalia CG [2008] UKAIT 00022 and KH (Article 15(c) Qualification Directive) Iraq CG [2008] UKAIT 00023. Before the Tribunal will take seriously a challenge to the historic validity of a Tribunal country guidance case, it would need submissions which seek to adduce all relevant evidence, for or against, the proposed different view. The historic validity of the guidance given in HH and Others was confirmed. The Upper Tribunal in AM & AM however stated that as regards the continuing validity of the guidance given in HH, the Tribunal considered that there have been significant changes in the situation in central and southern Somalia, such that the country guidance in that case was superseded to the following extent:

There was now an internal armed conflict within the meaning of international humanitarian law (IHL) and Article 15(c) of the Refugee Qualification Directive throughout central and southern Somalia, not just in and around Mogadishu. The armed conflict taking place in Mogadishu currently amounted to indiscriminate violence at such a level of severity as to place the great majority of the population at risk of a consistent pattern of indiscriminate violence. On the present evidence Mogadishu was no longer safe as a place to live in for the great majority of returnees whose home area is Mogadishu;

Assessment of the extent to which internally displaced persons (IDPs) face greater or lesser hardships, at least outside Mogadishu (where security considerations are particularly grave,) will vary significantly depending on a number of factors;

For those whose home area is not Mogadishu, they will not in general be able to show a real risk of persecution or serious harm or ill treatment simply on the basis that they are a civilian or even a civilian internally displaced person (IDP) and from such and such a home area, albeit much will depend on the precise state of the background evidence relating to their home area at the date of decision or hearing;

As regards internal relocation, whether those whose home area is Mogadishu (or any other part of central and southern Somalia) would be able to relocate in safety and without undue hardship would depend on the evidence as to the general circumstances in the relevant parts of central and southern Somalia and the personal circumstances of the applicant. Whether or not it was likely that relocation would mean that they have to live for a substantial period in an IDP camp, would be an important but not necessarily a decisive factor; Where a particular route and method of return is implicit in an immigration decision it is within the jurisdiction of the Tribunal to deal with issues of en route safety on return: see AG (Somalia) [2006] EWCA Civ 1342. But in the context of Somali appeals currently, the method of return is far too uncertain and so any opinion the Tribunal expresses on such issues can only be given on an obiter basis.

AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 00445 (IAC):

On the assumption that Al-Shabab’s likely behaviour towards those who transgress its rules is as found in this determination, the position is as “extreme” as the factual basis in RT (Zimbabwe) [2010] EWCA Civ 1285. In the light of RT, a person from an Al-Shabab area who can show they do not genuinely adhere to Al-Shabab’s ethos will have a good claim to Refugee Convention protection, once outside Somalia (subject to internal relocation and exclusion clause issues), regardless of whether the person could and would “play the game”, by adhering to Al-Shabab’s rules.

Despite the withdrawal in early August 2011 of Al-Shabab conventional forces from at least most of Mogadishu, there remained in general a real risk of Article 15(c) harm for the majority of those returning to that city after a significant period of time abroad. Such a risk does not arise in the case of a person connected with powerful actors or belonging to a category of middle class or professional persons, who can live to a reasonable standard in circumstances where the Article 15(c) risk, which exists for the great majority of the population, does not apply. The significance of this category should not, however, be overstated and, in particular, is not automatically to be assumed to exist, merely because a person has told lies.

The armed conflict in Mogadishu does not, however, pose a real risk of Article 3 harm in respect of any person in that city, regardless of circumstances. The humanitarian crisis in southern and central Somalia has led to a declaration of famine in IDP camps in Mogadishu; but a returnee from the United Kingdom who is fit for work or has family connections may be able to avoid having to live in such a camp. A returnee may, nevertheless, face a real risk of Article 3 harm, by reason of his or her vulnerability.

Except as regards the issue of female genital mutilation (FGM), it is unlikely that a proposed return to Mogadishu at the present time will raise Refugee Convention issues.

Outside Mogadishu, the fighting in southern and central Somalia is both sporadic and localised and is not such as to place every civilian in that part of the country at real risk of Article 15(c) harm. In individual cases, it will be necessary to establish where a person comes from and what the background information says is the present position in that place. If fighting is going on, that will have to be taken into account in deciding whether Article 15(c) is applicable. There is, likewise, no generalised current risk of Article 3 harm as a result of armed conflict. In general, a returnee with no recent experience of living in Somalia will be at real risk of being subjected to treatment proscribed by Article 3 in an Al-Shabab controlled area. “No recent experience” means that the person concerned left Somalia before the rise of Al-Shabab in 2008. Even if a person has such experience, however, he or she will still be returning from the United Kingdom, with all that is likely to entail, so far as Al-Shabab perceptions are concerned, but he or she will be less likely to be readily identifiable as a returnee. Even if he or she were to be so identified, the evidence may point to the person having struck up some form of accommodation with Al-Shabab, whilst living under their rule. On the other hand, although having family in the Al-Shabab area of return may alleviate the risk, the rotating nature of Al-Shabab leadership and the fact that punishments are meted out in apparent disregard of local sensibilities mean that, in general, it cannot be said that the presence of family is likely to mean the risk ceases to be a real one.

Al-Shabab’s reasons for imposing its requirements and restrictions, such as regarding manner of dress and spending of leisure time, are religious and those who transgress are regarded as demonstrating that they remain in a state of kufr (apostasy). The same is true of those returnees who are identified as coming from the West. Accordingly, those at real risk of such Article 3 ill-treatment from Al-Shabab will in general be refugees, since the persecutory harm is likely to be inflicted on the basis of imputed religious opinion. Although those with recent experience of living under Al-Shabab may be able to “play the game”, in the sense of conforming with Al-Shabab’s requirements and avoiding suspicion of apostasy, the extreme nature of the consequences facing anyone who might wish to refuse to conform (despite an ability to do so) is such as to attract the principle in RT (Zimbabwe). The result is that such people will also in general be at real risk of persecution by Al-Shabab for a Refugee Convention reason. The same considerations apply to those who are reasonably likely to have to pass through Al-Shabab areas.

For someone at real risk in a home area in southern or central Somalia, an internal relocation alternative to Mogadishu is in general unlikely to be available, given the risk of indiscriminate violence in the city, together with the present humanitarian situation. Relocation to an IDP camp in the Afgoye Corridor will, as a general matter, likewise be unreasonable, unless there is evidence that the person concerned would be able to achieve the lifestyle of those better-off inhabitants of the Afgoye Corridor settlements.

Internal relocation to an area controlled by Al-Shabab is not feasible for a person who has had no history of living under Al-Shabab in that area (and is in general unlikely to be a reasonable proposition for someone who has had such a history). Internal relocation to an area not controlled by Al-Shabab is in general unlikely to be an option, if the place of proposed relocation is stricken by famine or near famine.

Within the context of these findings, family and/or clan connections may have an important part to play in determining the reasonableness of a proposed place of relocation. The importance of these connections is likely to grow, as the nature of the present humanitarian crisis diminishes and if Al-Shabab continues to lose territory.

Travel by land across southern and central Somalia to a home area or proposed place of relocation is an issue that falls to be addressed in the course of determining claims to international protection. Such travel may well, in general, pose real risks of serious harm, not only from Al-Shabab checkpoints but also as a result of the present famine conditions. Women travelling without male friends or relatives are in general likely to face a real risk of sexual violence.

An issue that may have implications for future Somali appeals is the availability of air travel within Somalia (including to Somaliland). Flying into Mogadishu International Airport is sufficiently safe. There is no evidence to indicate a real risk to commercial aircraft flying to other airports in Somalia.

The Upper Tribunal stated that the present appeals were not designed to be vehicles for giving country guidance on the position within Somaliland or Puntland. There is no evidential basis for departing from the conclusion in NM and others, that Somaliland and Puntland in general only accept back persons who were former residents of those regions and were members of locally based clans or sub clans. In the context of Somali immigration to the United Kingdom, there is a close connection with Somaliland.

A person from Somaliland will not, in general, be able without real risk of serious harm to travel overland from Mogadishu International Airport to a place where he or she might be able to obtain an unofficial travel document for the purposes of gaining entry to Somaliland, and then by land to Somaliland. This is particularly the case if the person is female. A proposed return by air to Hargeisa, Somaliland (whether or not via Mogadishu International Airport) will in general involve no such risks.

The incidence of FGM in Somalia is universally agreed to be over 90%. The predominant type of FGM is the “pharaonic”, categorised by the World Health Organisation as Type III. The societal requirement for any girl or woman to undergo FGM is strong. In general, an uncircumcised, unmarried Somali woman, up to the age of 39, will be at real risk of suffering FGM.

The risk will be greatest in cases where both parents are in favour of FGM. Where both are opposed, the question of whether the risk will reach the requisite level will need to be determined by reference to the extent to which the parents are likely to be able to withstand the strong societal pressures. Unless the parents are from a socio-economic background that is likely to distance them from mainstream social attitudes, or there is some other particular feature of their case, the fact of parental opposition may well as a general matter be incapable of eliminating the real risk to the daughter that others (particularly relatives) will at some point inflict FGM on her.

MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC):

Generally, a person who is “an ordinary civilian” (i.e. not associated with the security forces; any aspect of government or official administration or any NGO or international organisation) on returning to Mogadishu after a period of absence will face no real risk of persecution or risk of harm such as to require protection under Article 3 of the ECHR or Article 15(c) of the Qualification Directive.  In particular, he will not be at real risk simply on account of having lived in a European location for a period of time of being viewed with suspicion either by the authorities as a possible supporter of Al Shabaab or by Al Shabaab as an apostate or someone whose Islamic integrity has been compromised by living in a Western country. There has been durable change in the sense that the Al Shabaab withdrawal from Mogadishu is complete and there is no real prospect of a re-established presence within the city. That was not the case at the time of the country guidance given by the Tribunal in AMM. The level of civilian casualties, excluding non-military casualties that clearly fall within Al Shabaab target groups such as politicians, police officers, government officials and those associated with NGOs and international organisations, cannot be precisely established by the statistical evidence which is incomplete and unreliable. However, it is established by the evidence considered as a whole that there has been a reduction in the level of civilian casualties since 2011, largely due to the cessation of confrontational warfare within the city and Al Shabaab’s resort to asymmetrical warfare on carefully selected targets. The present level of casualties does not amount to a sufficient risk to ordinary civilians such as to represent an Article 15(c) risk. It is open to an ordinary citizen of Mogadishu to reduce further still his personal exposure to the risk of “collateral damage” in being caught up in an Al Shabaab attack that was not targeted at him by avoiding areas and establishments that are clearly identifiable as likely Al Shabaab targets, and it is not unreasonable for him to do so. There is no real risk of forced recruitment to Al Shabaab for civilian citizens of Mogadishu, including for recent returnees from the West.

 

A person returning to Mogadishu after a period of absence will look to his nuclear family, if he has one living in the city, for assistance in re-establishing himself and securing a livelihood. Although a returnee may also seek assistance from his clan members who are not close relatives, such help is only likely to be forthcoming for majority clan members, as minority clans may have little to offer. The significance of clan membership in Mogadishu has changed. Clans now provide, potentially, social support mechanisms and assist with access to livelihoods, performing less of a protection function than previously. There are no clan militias in Mogadishu, no clan violence, and no clan based discriminatory treatment, even for minority clan members.

 

If it is accepted that a person facing a return to Mogadishu after a period of absence has no nuclear family or close relatives in the city to assist him in re-establishing himself on return, there will need to be a careful assessment of all of the circumstances. These considerations will include, but are not limited to:

 

  • circumstances in Mogadishu before departure;
  • length of absence from Mogadishu;
  • family or clan associations to call upon in Mogadishu;
  • access to financial resources;
  • prospects of securing a livelihood, whether that be employment or self employment;
  • availability of remittances from abroad;
  • means of support during the time spent in the United Kingdom;
  • why his ability to fund the journey to the West no longer enables an appellant to secure financial support on return.Put another way, it will be for the person facing return to explain why he would not be able to access the economic opportunities that have been produced by the economic boom, especially as there is evidence to the effect that returnees are taking jobs at the expense of those who have never been away.It will, therefore, only be those with no clan or family support who will not be in receipt of remittances from abroad and who have no real prospect of securing access to a livelihood on return who will face the prospect of living in circumstances falling below that which is acceptable in humanitarian protection terms. The evidence indicates clearly that it is not simply those who originate from Mogadishu that may now generally return to live in the city without being subjected to an Article 15(c) risk or facing a real risk of destitution. On the other hand, relocation in Mogadishu for a person of a minority clan with no former links to the city, no access to funds and no other form of clan, family or social support is unlikely to be realistic as, in the absence of means to establish a home and some form of ongoing financial support there will be a real risk of having no alternative but to live in makeshift accommodation within an IDP camp where there is a real possibility of having to live in conditions that will fall below acceptable humanitarian standards.

SOMALIA -RELEVANT ECHR CASELAW ON ARTICLE 3 OF THE ECHR AND HUMANITARIAN PROTECTION

Case of Sufi and Elmi v United Kingdom (Applications nos. 8319/07 and 11449/07) – 28 June 2011- found in summary that:

“248. The Court considers that the large quantity of objective information overwhelmingly indicates that the level of violence in Mogadishu is of sufficient intensity to pose a real risk of treatment reaching the Article 3 threshold to anyone in the capital. In reaching this conclusion the Court has had regard to the indiscriminate bombardments and military offensives carried out by all parties to the conflict, the unacceptable number of civilian casualties, the substantial number of persons displaced within and from the city, and the unpredictable and widespread nature of the conflict.

“250.Consequently, the Court concludes that the violence in Mogadishu is of such a level of intensity that anyone in the city, except possibly those who are exceptionally well-connected to “powerful actors”, would be at real risk of treatment prohibited by Article 3 of the Convention”.

Case of K.A.B. v. Sweden (Application no. 886/11) – 5 September 2013 found in summary that:

“91. The Court is aware that the human rights and security situation in Mogadishu is serious and fragile and in many ways unpredictable. However, in the light of the above, in particular the fact that al-Shabaab is no longer in power in the city, there is no front-line fighting or shelling any longer and the number of civilian casualties has gone down, it finds that the available country information does not indicate that the situation is, at present, of such a nature as to place everyone who is present in the city at a real risk of treatment contrary to Article 3 of the Convention. Therefore, the Court has to establish whether the applicant’s personal situation is such that his return to Somalia would contravene the relevant provisions of the Convention”.

Case of R.H. v. Sweden (application no. 4601/14)- 10 September 2015:

The case concerned the removal of a Somali asylum-seeker. The applicant, R.H., was a Somali national who was born in 1988. She applied for asylum in Sweden in December 2011, claiming that she had just arrived in the country. The Migration Board and migration courts examined her situation and eventually rejected her asylum application in June 2013 and ordered her deportation to Somalia. Those instances found that the applicant’s statements to the authorities lacked credibility: notably, she had already filed asylum applications in Italy and the Netherlands before arriving in Sweden in 2007, staying there illegally until contacting the migration authorities in 2011; and, initially claiming that she had left Somalia because of the war, had then changed her story to allege that she had fled Somalia with a secret boyfriend to escape a forced marriage to an older man and feared ill-treatment by her family on her return, particularly by her uncles who had already severely beaten her in 2004 for trying to escape. The applicant subsequently submitted a petition to have the enforcement of her deportation order stopped, claiming that her uncles had joined al-Shabaab, a jihadist terrorist group based in Somalia, forcing her brother to also join the group and killing her sister. The Migration Board rejected her petition in September 2013.

The applicant’s deportation was stayed in January 2014 on the basis of an interim measure granted by the European Court of Human Rights under Rule 39 of its Rules of Court, which indicated to the Swedish Government that the applicant should not be expelled to Somalia whilst the Court was considering the case.

Relying in particular on Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights, R.H. alleged that, if removed from Sweden to Somalia, she would face a real risk of either being killed by her uncles for refusing to agree to a forced marriage before fleeing Somalia or forced to marry a man against her will again upon her return. She further claimed that the general situation in Somalia for women was very difficult, in particular for those – such as herself – who lacked a male network and were therefore all the more vulnerable.

The   Court in R.H considered that:

“67. It is thus clear that the general security situation in Mogadishu remains serious and fragile. The available sources do not, however, indicate that the situation has deteriorated since September 2013. For example, in the Danish/Norwegian report of March 2014 (see paragraph 25 above), the UNDSS and an international NGO were reported as saying that there had been security improvements since April 2013. Also the conclusions drawn by the United Kingdom Upper Tribunal in MOJ & Ors (paragraphs 31-32) suggest that there has been an improvement. Given the high volume of oral and written evidence examined by the Tribunal, the Court considers that its assessment must be accorded great weight. Among other things, the Tribunal concluded that there had been durable change in the sense that the al-Shabaab withdrawal from Mogadishu was complete and there was no real prospect of a re-established presence within the city. The indiscriminate bombardments and military offensives mentioned by the Court in its 2011 judgment in Sufi and Elmi v. the United Kindom had been replaced by al- Shabaab attacks against carefully selected targets – politicians, police officers, government officials and those associated with non-governmental and international organisations – that did not include “ordinary civilians” or diaspora returnees. The Tribunal further considered that the areas and establishments at which these attacks were aimed were largely predictable and could be reasonably avoided by the citizens. Moreover, while the statistical information concerning casualty levels was deficient and unreliable, the cessation of confrontational warfare in Mogadishu and the changed type of attacks by al-Shabaab were found to have reduced the level of civilian casualties since 2011. The Tribunal also had regard to the “huge” number of people returning to the city, where new economic opportunities were available

  1. Consequently, having regard to the information available concerning the present situation in Mogadishu, the Court finds that the assessment made in K.A.B. v. Sweden (cited above, §§ 87-91) is still valid. Thus, there is no indication that the situation is of such a nature as to place everyone who is present in the city at a real risk of treatment contrary to Article 3. The Court must therefore establish whether the applicant’s personal circumstances are such that her return to Mogadishu would contravene that provision.
  2. The various reports attest to the difficult situation of women in Somalia, including Mogadishu. The UNHCR has identified women and girls as a particular risk group (see paragraph 37 above). While there has been legislative progress in the form of the development of a sexual offences bill, there are several concordant reports about serious and widespread sexual and gender-based violence in the country (paragraphs 27,30, 33-34 and 38). Not only civilians but also members of SNAF, AMISOM and other armed forces are perpetrators of abuse against women. Women are unable to get protection from the police and the crimes are often committed with impunity, as the authorities are unable or unwilling to investigate and prosecute reported perpetrators. It is also clear that women are generally discriminated against in Somali society and that they hold a subordinate position to men. As shown by the report of the Swedish Migration Board, women are reliant on men in many aspects of societal life (paragraph 30). In the Court’s view, it may be concluded that a single woman returning to Mogadishu without access to protection from a male network would face a real risk of living in conditions constituting inhuman or degrading treatment under Article 3 of the Convention.
  3. In sum, the Court considers that there are significant inconsistencies in the applicant’s submissions. The claims concerning her personal experiences and the dangers facing her upon return have not been made plausible. Accordingly, there is no basis for finding that she would return to Mogadishu as a lone woman with the risks that such a situation entails. In this connection, the Court notes that the applicant was informed of the death of her father in 2010 and her mother in 2011, indicating that she has retained contacts in Mogadishu. Moreover, she has family living in the city, including a brother and uncles. She must therefore be considered to have access to both family support and a male protection network. Furthermore, it has not been shown that the applicant would have to resort to living in a camp for refugees and IDPs.
  4. Consequently, while not overlooking the difficult situation of women in Somalia, including Mogadishu, the Court cannot find, in this particular case, that the applicant would face a real risk of treatment contrary to Article 3 of the Convention if returned to that city. Thus, her deportation to Mogadishu would not involve a violation of that provision”.

There was thus held to be no violation of Article 3 in the event of R.H.’s removal to Mogadishu in Somalia. Interim measure (Rule 39 of the Rules of Court) – not to deport R.H. to remain in force until judgment became final or until further order.

 CONSIDERATIONS AND CONCLUSIONS

Having regard to the outcome in R.H, the ECHR in effect agreeing with the reasoning and conclusion of the Upper Tribunal in MOJ 2014, and with the ECHR also having had regard to   very recent background evidence as regards the security   situation in Somalia, this gives little hope currently to increased successes in protection claims raised by Somalians in the UK. The positives however practically for Somalians in that country are that the security situation has improved and it has been reiterated that there is an “ economic boom” benefiting some and providing opportunities.

It is also important to note that  the Upper Tribunal in MOJ 2014 made it   clear that the country guidance issues addressed in their determination were not identical to those engaged with by the Tribunal in AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 445 (IAC). Therefore, where country guidance has been given by the Tribunal in AMM and others in respect of issues not addressed MOJ 2014 then the guidance provided by AMM and others continues to have effect.

Despite the conclusions in MOJ 2014 and R.H generally on Article 3 and humanitarian protection, there can in fact be viability of some claims capable of advancement for those that fall into a “carefully selected target” group- such claims   appear however to be confined to those with some high profile making them of particular adverse interest  to Al Shabab. A minority group member who becomes an internally  displaced person in any part of south and central Somali with no choice but to live in an IDP camp ; a minority group woman without family or clan support; a woman at risk of gender based persecution such as FGM and those whose personal circumstances are such that return would put them at risk can also still put forward a claim for protection.

Having regard to the  case and outcome  in R.H, it is important however that claimants be regarded as credible overall in order for there to be an acceptance of the factual accounts of those falling in the risk categories otherwise a claim may fall at the first hurdle.

Zimbabweans and Protection: Is There Any Point In Advancing an Asylum Protection Claim in The UK?

Seemingly,  on the basis of the current Zimbabwean country guidance caselaw  as it relates to protection  claims based on political opinion(actual or imputed), sexuality and medical condition cases, unless the claim is accompanied by compelling evidence both on a subjective level and objectively, chances  of success,  whether  on application or at appeal appear to be  but a mere hope.

Despite having an applicant’s account  set out in the substantive asylum interview and perhaps in addition via a supportive signed ststement, the Home Office are aware that the best bits in starting to  tear apart  an applicant’s credibility is to repeat a summary of the claim at the beginning of the refusal decision  in a way that usually bears little resemblance to the tone and tenor of the claim as initially set forth by the applicant.  Having ensured  during the substantive interview that that interview does not end until some seeming inconsistencies within the applicant’s responses have recorded, the casting of  considerable doubt on the factual claim itself will then follow.  The  refusal decisions have now  become “refined” enough to the point that those aspects that are not believed are now set out under actual headings.   A standard copy and paste of the headnote in CM(Zimbabwe) then takes the best part of three pages, to be followed with the  regurgitated conclusion that the applicant has no high  political profile or if he has one can safely relocate,  usually in Bulawayo or Harare. Upon receipt of the refusal decision, an applicant cannot be blamed if left  with considerable doubt as to whether the immigration Tribunal will accept any aspect of the claim on appeal.

POSSIBLE HEADS OF CLAIM

  • Asylum- Actual or Imputed Political Opinion:

The case of CM(EM Country Guidance; disclosure ) Zimbabwe CG (2013) UKUT 00059 concludes in essence that as a general matter, there is significantly less politically motivated violence in Zimbabwe compared with the situation considered by the AIT in RN(2008). In particular the evidence does not show that as a general matter, the return of a failed asylum seeker from the United Kingdom, having no significant MDC profile would result in that person facing a real risk of having  to demonstrate loyalty to ZANU(PF).  CM noted however that the position is likely to be otherwise in the case of a person returning from the UK after significant absence to a rural area of Zimbabwe, other than Matebeleland North or Matabeleland South. Such a person may well find it difficult to avoid adverse attention, amounting  to serious ill-treatment, from ZANU(PF authority figures and those they control. The adverse attention may well involve a requirement to demonstrate loyalty to ZANU(PF) with the prospect of serious harm in the event of failure. CM found in general that those returning to rural areas of Matebeleland North or Matebeleland South would be highly unlikely to face significant difficulty from ZANU(PF) elements including the security forces even if the returnee is an MDC member or supporter. A person may however be able to show that his village or area is one  that unusually is under the sway of a ZANU(PF) chief,  or the like. Those returning to all other rural areas from the UK without ZANU(PF) connections after a significant absence would face a real risk of persecution because of continuing risk of being required to demonstrate loyalty to ZANU(PF) with the prospect of serious harm in the event of failure. In regard to major urban areas, a returnee to Harare will face difficulties living in high density areas not faced by those living in other urban areas and those persons perceived to be active in MDC politics may face risk of targeted reprisals.   A returnee to Harare will in general face no significant difficulties if going to a low-  density  or medium- density area. Whilst the socio-economic situation in high- density areas is more challenging, in general a person without ZANU(PF) connection will not face significant problems there (including a loyalty test ) unless he has a significant MDC profile which might cause him or her to feature on a list  of those targeted for harassment or would otherwise engage in activities likely to attract the adverse attention of ZANU(PF)  or would be reasonably likely to engage   in such activities but for fear of thereby coming to the adverse attention of  ZANU(PF ).  A returnee  to Bulawayo will in general not suffer the adverse attention of ZANU(PF) including the security forces even if he does have a significant MDC profile.

Those who are or have been teachers are at a heightened risk of illtreatment.  The heightened  risk associated with being a teacher should be considered alongside the  individual circumstances of each case.

The issue of what is a person’s home area  for the purposes of internal relocation is to be decided as a matter of fact.  As a general matter,  it is unlikely that a person with a well founded fear of persecution in a major urban centre such as a Harare will have a viable internal relocation alternative to a rural area in the Eastern province if they have no connection there. Harare or Bulawayo may be a more realistic option for relocation of a person facing risk of persecution in rural Zimbabwe as long as such relocation would not be unduly harsh on the facts of the individual case. Relocation  to Matabeleland(including) Bulawayo) may be unduly harsh because of the risk of discrimination where the returnee is Shona.

Having regard to the guidance in CM,  in essence, unless  an applicant is able to show a political profile high enough to satisfy that they will be at risk on return and/or  are also able to pass the “geographical” filter, then chances of success in an asylum claim based on political opinion  appear limited.

Matters were not made any easier by  the  next case which followed relating to issues of risk on return in relation to  teachers.   NN(Teachers: Matebeleland/ Bulawayo: risk) Zimbabwe CG ( 2013) UKUT 00198(IAC) decided that a teacher will not face a heightened risk on return on account of his occupation alone if his destination of return is (a) rural Matebeleland North or Matebeleland South where a returnee will in general not face a real risk of harm from ZANU(PF)  elements including the security forces even if he is a MDC supporter or member, or (b)  Bulawayo where the returnee will in general not face such a risk even if he has a significant MDC profile.

  • Asylum – Claim based on Sexuality:

Despite acknowledging that there  had much public expression of extreme homophobia at the highest level in recent years; that male homosexual behaviour is criminalised; that some homosexuals suffer discrimination, harassment, and blackmail from the general public and police and that the police and other state agents do not provide protection, the Tribunal in LZ(homosexuals) Zimbabwe CG 2011 UKUT 00487 IAC concluded,  applying the Supreme Court case of HJ &HT (2010) UKSC 31, 2010 Imm AR 729, that there is no general risk to gays or lesbians in Zimbabwe.  The Tribunal observed that  prosecutions in relation to homosexual behaviour was rare; there were no records of any murder with a homophobic element; attempted extortion,  false complaints and unjustified detentions are not so prevalent as to pose a general risk; there is a gay scene within limitations; GALZ took a view that Zimbabwe “was not the worst place in the world to be gay or lesbian even though the President, government officials and church leaders have whipped up a climate of hysterical homophobia”.

The Tribunal considered that personal circumstances place some gays and lesbians at risk. Although not decisive on its own, being openly gay may increase risk. A positive HIV/AIDS diagnosis may be a risk factor. The Tribunal also found that a  homosexual at risk in his community could move elsewhere either in the same city or to another part of the country. He might chose to relocate to where there is greater tolerance, such as Bulawayo, but the choice of a new area is not restricted. The option is excluded only if personal circumstance present risk throughout the country.

It may therefore be possible for an applicant to show that they are gay but fail on the claim on the basis that there is a reasonable internal flight option within Zimbabwe.

  • Article 3 of the ECHR- Medical Condition, HIV:

The case of RS and Others (Zimbabwe- AIDS-Zimbabwe CG( 2010) UKUT 363,(IAC) found that the return to Zimbabwe of a Zimbabwean diagnosed with HIV does not place the United Kingdom in breach of its obligations under the Disability Discrimination Act.  The Tribunal considered that a significant number of people are receiving treatment for HIV/AIDS in Zimbabwe and hence a Zimbabwe returnee will not succeed  in a claim for international protection on the  basis of diagnosis of HIV/AIDS unless their case crossed the threshold identified in N v United Kingdom.  The Tribunal observed that although there is some evidence  of discrimination in access to AIDS medication and food in Zimbabwe, it is not such as to show a real risk of such discrimination.

OTHER BASIS OF SEEKING PROTECTION

There are many Zimbabweans in the UK who are in genuine activism via human rights  and  civil rights groups such as  Restoration of Human Rights ( ROHR ) Zimbabwe and the Zimbabwe  Vigil.  ROHR clarifies on its website  that it,   ” is a non political organisation whose members are passionate and committed to bringing about change in Zimbabwe. We strongly subscribe to the founding principles of returning Zimbabwe to the apex of humans rights vanguard and an economic power house on regional and international levels.(ROHR ) Zimbabwe is founded in the following objectives: To educate and encourage Zimbabweans to stand together and demand that their  human rights issues be addressed- To encourage active participation of Zimbabweans in governance issues including their constitutional rights- to work closely with other organisations that share the same objectives and values nationally, regionally  and internationally”.

The Zimbabwe Vigil was launched on 12 October 2002 and has been held every Saturday since then outside  Zimbabwe House, London. Vigil petitions focus on human rights abuses and the suppression of democracy in Zimbabwe.

Among other objectives, the Zimbabwean Association maintains links with groups in Zimbabwe working to improve the situation in the country. The Zimbabwean Association is a non- partisan and independent organisation with no political role in Zimbabwe itself however it has a growing network of groups around the UK providing practical and emotional support to Zimbabwean asylum seekers and refugees.

The case of HS(returning asylum seekers) Zimbabwe CG 2007 UKAIT 00094 is of relevant application for applicants in activism in the UK  and provides in its headnote, ” The Tribunal identifies one further risk category, being those seen to be active in association with human rights or civil organisations where evidence suggests that the particular organisation has been identified by the authorities as a critic or opponent of the Zimbabwe regime”.

Those taking part in vigils, demonstrations and activism  in  the UK in protest against the  human rights situation in Zimbabwe do so for change and if  as part of their activities they   consider that they have been identified by Zimbabwean state  security agents and fear return to Zimbabwe then they should be entitled to international protection in the UK- whether such claims are submitted via an initial asylum claim or by way of further submissions in seeking to advance a fresh claim for asylum.

The Home Office may however seek state that involvement in such activities is opportunistic and  only undertaken to frustrate removal.  They may place reliance upon the case of BA(Demonstrators in British – risk on return) Iran CG 2011 UKUT 36 (IAC) where the  Upper Tribunal set out the factors to be considered when assessing risk on return having regard to sur place activities. The factors include considerations of the theme of the demonstrations; role in demonstrations and political profile; extent of participation; surveillance of demonstrators; regime’s capacity to identify individuals; profile; immigration history and matching identification to person.

Reliance can however be placed upon the case of YB(Eritrea) 2008 EWCA Civ 360, which states at paragraph 18, “Where as here, the tribunal has objective evidence which ” paints  a bleak picture of the suppression of political opponents” by a named government, it requires little or no evidence or speculation to arrive at a strong possibility- and perhaps more- that its foreign  legations not only film  or photograph their nationals who demonstrate against the regime but have informers among expatriate  oppositionist organisation  who can name the people who are filmed or photographed. Similarly it does not require affirmative evidence to establish a probability that the intelligence services of such states monitor the internet for information  about oppositionist groups. The real question in most cases will be what follows for the individual claimant….”.

The Home Office Country Information and Guidance Zimbabwe: Political Opposition to ZANU(PF)- October 2014,  itself confirms that there continue to be reports of ill-treatment of perceived MDC supporters, political activists and perceived government critics. Recent reports for example from Human Rights Watch also  state that the Zimbabwean government continued to  violate human rights without regard to protections in the country’s new constitution.

When  issues of risk on return arise then reliance can be placed once again on the case of HS which states in its headnote that the process of screening returning passengers is an intelligence led process and the state security agents will generally have identified from the passenger manifest in advance, based on such intelligence those passengers in whom there is any possible interest. On that basis,  the factual matrix  applicable to the claimant having been established as regards the issues giving rise to a fear of return, it may be possible to advance an argument that there is no questions of internal relocation as risk will arise at the airport itself upon arrival in Zimbabwe.

  • Gender Based Persecution- Women and Girls:

A woman may have a fear of return to Zimbabwe on account of being subjected to domestic violence, rape or fear of  being subjected to harmful traditional practices such as forced and early marriage or polygamy  which can amount to inhuman and degrading treatment.

The Home Office  Country Information and Guidance Zimbabwe: Women  October 2014  confirms that women in Zimbabwe constitute a particular social group within the meaning of the 1951  UN Refugee Convention because they share a common characteristic that cannot be changed- their gender- and based on an assessment of the country information, they have a distinct identity in Zimbabwe which is perceived as being different by the surrounding society.

The Home Office Guidance summarises that although Zimbabwe has a strong legal frame work for addressing violence against women, laws are not effectively enforced and sexual and gender based violence remain serious and widespread problems. Patriachal attitude and discrimination are prevalent, particularly in the rural areas, and women and girls  can be subjected to harmful traditional practices. The Home Office acknowledge that effective state protection is unlikley to be available for women fearing gender based violence. Internal relocation to avoid gender based violence may be  viable in some limited cases, particularly from rural to urban areas. The Home Office guidance concludes that a women who demonstrates a real risk or reasonable likelihood of ill-treatment on return to Zimbabwe on account of her gender and who is able  to show that she is unable to secure effective protection or relocate elsewhere in Zimbabwe to escape that risk,  will qualify for asylum.

CONCLUSION

Despite the case of  CM(Zimbabwe)  appearing to apply to a  narrow category  of those considered at risk of return to Zimbabwe, each  claim is considered in its own merits and as such where an applicant  has a genuine fear of return and  having regard to the sometimes volatile human rights conditions in Zimbabwe  including the amount of  case-law that has been generated through litigation over the years  as regards risk on return for Zimbabweans, letting the UK authorities aware of a fear on return to Zimbabwe  is essential.

Deportation of EEA Nationals: Tribunal Judges Required to Stop Giving Substantial Weight to Prospects of Rehabilitation

Having regard to the several initial successful outcomes in the First Tier Tribunal and the Upper Tier Tribunal itself in the cases of Dumliauskas  and MC,  the Court of Appeal earlier this year and now recently the Upper Tribunal, by setting aside those decisions,  have sought to make it clear that substantial focus on prospects of rehabilitation in EEA deportation appeals almost to the exclusion of other factors in considering proportionality of deportation should now be a thing of the past. Taking into account the history of these cases, it is apparent that where in future Tribunal Judges seek to allow EEA appeals without due regard to the re-cast new Guidance, then on the basis of that guidance the Secretary of State will seek to challenge such decisions and just might be successful.

Although the guidance on rehabilitative issues are of relevant consideration in future EEA deportation appeals, it must be noted that   as Regulation 24AA of the 2006 EEA Regulations has already kicked in,  on this basis, it is very questionable, unless an interim order can be obtained, whether many EEA nationals subject to deportation will have the opportunity such as that given to the appellants in MC and  Dumliauskas to   be still in the UK whilst their appeals are being heard.   Regulation 24AA applies to a person who appeals in time against an EEA deportation decision, where that appeal has not been finally determined and to a person who has not appealed against an EEA deportation decision but would be entitled to do so from within the UK. An appeal against a deportation decision under regulation 19(3)(b) of the 2006 EEA Regulations no longer suspends removal proceedings, except where the Secretary of State has not certified that the person would not face a real risk of serious irreversible harm if removed to the country of return before the appeal is finally determined or where the person has made an application to the courts for an interim order to suspend removal proceedings (e.g. judicial review) and that application has not yet been determined, or a court has made an interim order to suspend removal. The application of a regulation 24AA certificate does not prevent a person from lodging an appeal from within the UK, rather, by amending Regulation 29 of the EEA Regulations, it removes the suspensive effect of that appeal. So, whilst a person may lodge their appeal in-country, the lodging of such an appeal does not suspend their removal from the UK.

Considerations of rehabilitation have been narrowed as per the new guidance and on this basis in addition to the effect of Regulation 24AA   certification it is clear that so far matters are neatly going the UK Government’s way. When the Immigration Bill 2015 was published on 17 September 2015, in response to how many appeals have been allowed under the existing “ deport first appeal later” provisions, the Government’s response via a published Factsheet was, ”Over 230 foreign national offenders have been removed under these powers and 67 have lodged an appeal, of which three have been determined and were dismissed. In addition, over 1,200 EEA foreign national offenders have been removed under equivalent powers and 288 have lodged an appeal”. There appears to be no clarification that those 288 EEA nationals that had lodged an appeal abroad had been successful in their deportation appeals following removal.

It is important to note and have regard to the fact that both parties of “ Essa” principles or criteria are three cases all relating to the same individual:

  • Essa, R (on the application of) vUpper Tribunal (Immigration & Asylum Chamber) & Anor [2012 EWHC 1533 (QB), 1 June 2012);
  • Essa, R (on the application Of) v Upper Tribunal (Immigration & Asylum Chamber) & Anor [2012] EWCA Civ 1718 (21 December 2012); and

All three judgements are referred to in both Dumliauskas and MC.

THE PARENT DIRECTIVE- RELEVANT ARTICLES AND RECITALS

The relevant provisions in Directive 2004/38/EC are :

  • Recital (23
  • Recital (24)
  • Article 16
  • Article 27
  • Article 28

RELEVANT DOMESTIC LAW

The relevant Regulations as per The  Immigration (European Economic Area) Regulations 2006, 2006 No. 1003, are:

  • Regulation 19
  • Regulation 21
  • Regulation 24

 THE RELEVANT CASELAW

Essa (EEA: rehabilitation/integration) [2013] UKUT 00316 (IAC):

The Tribunal stated that for any deportation of an EEA national or family member of such national to be justified on public good grounds (irrespective of whether permanent residence has been achieved) the claimant must represent a present threat to public policy. The fact of a criminal conviction is not enough. The Tribunal considered that it was not permissible in an EEA case to deport a claimant on the basis of criminal offending simply to deter others.  This tended to mean, in case of criminal conduct short of the most serious threats to the public safety of the state, that a candidate for EEA deportation must represent a present threat by reason of a propensity to re-offend or an unacceptably high risk of re-offending.  In such a case, if there is acceptable evidence of rehabilitation, the prospects of future rehabilitation do not enter the balance, save possibly as future protective factors to ensure that the rehabilitation remains durable.

The Tribunal stated that it was only where rehabilitation is incomplete or uncertain that future prospects may play a role in the overall assessment.  The Tribunal took its guidance from the Court of Justice in Tskouridis and the Court of Appeal in Essa, remitting the matter to the Upper Tribunal.  The Tribunal noted that it was in the interests of the citizen, the host state and the Union itself for an offender to cease to offend.  This is most likely to be the case with young offenders who commit a disproportionate number of offences, but many of whom will stop offending as they mature and comparatively few of whom go on to become hardened criminals and persistent recidivist offenders. The Tribunal stated that it could exclude consideration of offenders beneath the age of 18 as EEA law will prevent their deportation save in the unusual event that it is in their own interest (Article 28 (3) (b) of the Citizens Directive).

The Tribunal considered that if the very factors that contribute to the EEA national’s integration that assist in rehabilitation of such offenders (family ties and responsibilities, accommodation, education, training, employment, active membership of a community and the like) will assist in the completion of a process of rehabilitation, then that can be a substantial factor in the balance. If the claimant cannot constitute a present threat when rehabilitated, and is well-advanced in rehabilitation in a host state where there is a substantial degree of integration, it may well very well be disproportionate to proceed to deportation.

The Tribunal considered that at the other end of the scale, if there are no reasonable prospects of rehabilitation, the claimant is a present threat and is likely to remain so for the indefinite future, they could not see how the prospects of rehabilitation could constitute a significant factor in the balance. Thus recidivist offenders, career criminals, adult offenders who have failed to engage with treatment programmes, claimants with impulses to commit sexual or violent offences and the like may well fall into this category.

Secretary of State v Dumliauskas [2015] EWCA Civ 145:

There were three cases before the Court of Appeal. Each of the EEA nationals was convicted of crimes for which prison sentences were imposed. In each case, the Secretary of State was of the opinion that their conduct did “represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” sufficient to justify his expulsion. The Upper Tribunal in each case came to the same conclusion, and in one of the cases (of LW) was further satisfied that the requirement of serious grounds of public policy or public security was satisfied, but rejected the Secretary of State’s case on the ground that, having regard to the better prospects of the rehabilitation of the EEA national in question if he remained in this country, it would be disproportionate to expel him.

AD was a citizen of Lithuania. He had come to the UK in 1998. In summary, as noted by the First Tier Tribunal , whilst in the United Kingdom, the EEA national amassed a criminal record comprising one offence against the person, twelve theft and kindred offences, one offence relating to police, courts, prisons, one drugs offence, 6 firearms and offensive weapons offences. On 8 June 2010 he was convicted of robbery and sentenced to three and a half years’ imprisonment concurrent with 2 counts of theft in respect of going equipped to steal.    AD had become addicted to heroin.  His offending was connected with his addiction: essentially, he said that he committed his offences to obtain money for drugs. Because of the risk of his relapse, the Tribunal found that his conduct represented a present threat. Accordingly, the precondition for his removal under Art 27.2 and Regulation 19(3) was satisfied. In these circumstances, the Secretary of State was entitled to remove AD provided she satisfied the test of proportionality. On this, the First-tier Tribunal was satisfied that he was genuine in his determination to rehabilitate and had aspects of his physical medical condition and the desire to spend time with his grandson, as factors encouraging rehabilitation. There were considered to be reasonable prospects of believing that the prospects of rehabilitation of the EEA national in the United Kingdom were substantial. No evidence had been put before the Tribunal of the prospects of rehabilitation in Lithuania. On this basis, the Tribunal found that the Secretary of State’s decision to remove AD did not comply with the requirement of proportionality, and it allowed his appeal. The Secretary of State appealed to the Upper Tribunal. In her application for permission to appeal, the Secretary of State contended that the relative prospects of rehabilitation are irrelevant to the assessment of proportionality in the case of someone who does not have the permanent right of residence under the Regulations and the Directive. She also contended that the First-tier Tribunal had erred in law in placing manifestly undue weight on the relative prospects of rehabilitation, and that the Tribunal had wrongly placed an onus of proof on the Secretary of State as to the availability of support for AD in Lithuania. The Upper Tribunal held that the relative prospects of rehabilitation in the UK and in Lithuania were a factor relevant to the assessment of proportionality; accordingly the First-tier Tribunal had not erred in taking it into account and upheld the First Tier Tribunal decision.

ME had Dutch nationality. He stated that he had come to the UK in 2002. He had a wife and children here, but he was separated from his wife. He suffered from schizophrenia and at the date of the First-tier Tribunal’s determination, he was detained in a mental hospital. In March 2010 he was convicted of arson (causing damage to property by fire and being reckless as to the danger to the life of others). The substance of the decision of the First-tier Tribunal was observed to be that the appeal had been argued before them on the basis that the EEA national was someone who should be allowed to remain in the United Kingdom subject to the requirements of the mental healthcare professionals looking after him and should he do so this would result in a low risk of harm to others. The First Tier Tribunal was unable to accept this and consequently while the Secretary of State’s decision would interfere with his family life in the United Kingdom, his removal was justified on protection grounds. Accordingly, the First-tier Tribunal dismissed ME’s appeal against the Secretary of State’s decision to remove him. ME appealed to the Upper Tribunal. The Upper Tribunal noted that the EEA national had clearly been in the United Kingdom for more than five years. It had been found that he did not meet the 10 year residence requirement necessitating the consideration of imperative grounds. However in the Upper Tribunal’s judgement both the time that he has spent in the United Kingdom and the history of his residence here justified the consideration of rehabilitation as a factor in the proportionality balance when considering removal. The Upper Tribunal concluded that the question of whether the EEA national’s continued rehabilitation is best served in the United Kingdom or elsewhere was comparative one. In this respect the evidence showed that the EEA national was being treated in a rehabilitative environment in the United Kingdom and had been so treated in the same establishment for the last 17 months. The Upper Tribunal were satisfied that he was making progress. The prospects of rehabilitation in the Netherlands were more difficult to ascertain. Expert evidence was of the view that even if the Dutch authorities offer equivalent medical treatment the EEA national’s rehabilitation was more likely to be successful in the UK because of his established relationship with the mental health team and his family support.

In the Upper Tribunal’s judgment the nature of the rehabilitative treatment that the EEA national would receive in the Netherlands was at best uncertain whereas the rehabilitative treatment that he was receiving in the United Kingdom was known, long term, continuing and progressing. The Upper Tribunal ‘s judgment was that the prospects of the EEA national’s rehabilitation were a matter that needed to be considered in the proportionality balance. It was considered that those prospects of not of themselves determinative but as a factor in the balance in the case of the case they weighed very heavily indeed as the case concerned an Appellant with no history of offending apart from the index offence but with a long history of mental health issues. It was therefore only by an examination of his psychiatric rehabilitation that it was possible to view his propensity to re-offend because there was no suggestion, either from the Secretary of State or otherwise, that any other factors were in play. In the Upper Tribunal’s judgement the evidence that was before them showed quite clearly that the EEA national’s psychiatric rehabilitation was continuing, progressing and controlled in a secure environment and further that it was being benefited by the proximity and support of close family members. The Upper Tribunal could not be satisfied that this rehabilitation would continue were the EEA national to be deported to the Netherlands and further they were satisfied on the unequivocal expert medical evidence that even if mental health treatment was available to the EEA national his deportation was likely to have a significant detrimental effect on his mental health. It was the Upper Tribunal’s judgment that in the particular circumstances of the case the deportation of the EEA national was not a proportionate response within the terms of regulations 21(5) and 21(6) of the Immigration (European Economic area) Regulations 2006 and therefore the Upper Tribunal re-made the decision of the First-tier Tribunal and allowed the appeal.

LW was a citizen of Poland. In September 2006 he was convicted of driving without due care and attention: his driving had caused the death of a pedestrian, but at that date there was no offence of causing death by careless driving. In May 2007 he was convicted of offences of theft and failure to surrender to bail and was sentenced to a community order. In Feb 2008 he was convicted of fraudulent use of a vehicle excise licence and other road traffic matters; he was fined and disqualified from driving. More seriously, in Dec 2011 he pleaded guilty to 2 offences of robbery; he was sentenced to 32 months imprisonment on both, to run concurrently. This led to the Secretary of State’s decision to remove him. LW did not appear at the First-tier Tribunal hearing of his appeal in Oct 2012. The Tribunal dismissed his appeal, holding that he had not established that he had a permanent right of residence in this country, he remained a risk to the public in the form of violence to the person, had not addressed his offending behaviour, and sought to minimise his criminality. The Upper Tribunal granted LW a further appeal, on the ground that the First-tier Tribunal had failed to consider the relative prospects of rehabilitation. At his hearing before the Upper Tribunal, the Tribunal cited paragraphs 3, 4 and 5 of the decision of the Upper Tribunal in Essa (EEA): rehabilitation/integration [2013] UKUT 00316 (IAC), and concluded that there was evidence of attempts at rehabilitation by voluntarily not using alcohol. If such work continued with the support of family and the friends who attended court and have provided written statements, the prospects for the appellant not reoffending as a result of alcohol related issues must be positive. It was noted that the key element to the success of his rehabilitation appeared not to be the intention of professionals but rather the integration into the peer, family, and friendship group in the UK. The Upper Tribunal found that the case fell within the class of those who at the time of the determination are or remain a present threat to public policy but where the factors relevant to integration suggest that there are reasonable prospects of rehabilitation. It was noted that such prospects were a substantial relevant factor in the proportionality balance as to whether deportation is justified. It was considered clear that LW was well advanced in rehabilitation and that there was a substantial degree of integration. The Tribunal found that on the facts of the case it was disproportionate to proceed to deportation when considering the Regulation 21 facts with particular reference to regulation 21 (5) (a) and (6). It was considered that the future was up to LW. If he reoffended his claim to have rehabilitated would be shown to be false and his deportation to Poland might then succeed. It was noted that if he wished to remain in the UK he needed to continue to abstain from alcohol and steroids or any other substance which might result in aggression and loss of control, behave as a model citizen, and drive with the degree of care expected from any road user.

In each of the 3 cases, the Secretary of State appealed to the Court of Appeal on the ground that the relative prospects of rehabilitation are irrelevant in the case of someone who has no permanent right of residence in this country. It was also contended that the Tribunal gave manifestly excessive weight to rehabilitation, and that the evidence before the Tribunal did not justify its finding that rehabilitation was more likely in this country rather than the country of nationality.

The Court of Appeal in its judgement in Dumliauskas agreed entirely with what was said by Maurice Kay LJ, in the Court of Appeal in R (Daha Essa) v UTIAC [2012] EWCA Civ 1718:

“16. Finally, there is one matter upon which Mr Hall made submissions which I consider to be well-founded. The Advocate General, in the passage which I set out in paragraph 8, above, opined that it is incumbent upon a primary decision-maker who makes an expulsion decision “to state precisely in what way that decision does not prejudice the offender’s rehabilitation”. Although the CJEU expressly adopted part of paragraph AG95 in its judgment, I do not think that it adopted that part. In my respectful opinion it is overprescriptive. The comparative exercise envisaged by Lang J as the usual corollary of Tsakouridis may well be achieved without such a straitjacket”.

 The Court of Appeal in Dumliauskas further noted the judgment of the Court of Appeal in Essa (2012 ) appeal made it clear that the relative prospects of rehabilitation are a factor to be taken into account. It was noted that with Essa in the first instance, Lang J had said:

“In my judgment, the judgment … in Tsakouridis establishes that the decision-maker, in applying regulation 21 of the EEA Regulations, must consider whether a decision to deport may prejudice the prospects of rehabilitation from offending in the host country, and weigh that risk in the balance when assessing proportionality under regulation 21(5)(a). In most cases, this will necessarily entail a comparison with the prospects of rehabilitation in the receiving country …”

The Court noted in Dumliauskas  that Maurice Kay had said that he entirely agreed with Lang J’s interpretation of Tsakouridis.

The Court of Appeal in Dumliauskas further referred to the prospects of rehabilitation being considered by the Upper Tribunal, in Secretary of State for the Home Department v Vasconcelos [2013] UKUT 378 (IAC). The Court of Appeal agreed entirely with paragraph 80 of that decision which stated that, “His future prospects of rehabilitation are uncertain and whatever they are cannot be a weighty factor in the balance given the absence of integration and a right of permanent residence” .

The Court of Appeal in Dumliauskas  further noted that the judgment of the Court of Justice in Tsakouridis was considered by the Upper Tribunal, in Essa v Secretary of State for the Home Department [2013] UKUT 316 (IAC) and that the Tribunal concluded that the prospects of rehabilitation in the offender’s home State are relevant to the decision to deport only if he has acquired a permanent right of residence. The Court of Appeal in Dumliauskas   whilst indicating sympathy with this approach, was unable to agree with it. The Court could think of no other example of a factor bearing on proportionality being relevant to those who qualify in a certain respect (here, lawful residence) but not others. It was considered that once proportionality is engaged, the factors to be taken into account do not vary with the qualifications of the individual concerned. The Court of Appeal   considered that what was however affected by length of legal residence (in the sense used in Art 16.1 of the Parent Directive ) was the weight to be given to the respective prospects of rehabilitation. In addition, it seemed to the Court of Appeal that the decision of the Upper Tribunal in Daha Essa (2013) was inconsistent with what was said by Maurice Kay LJ in Daha Essa (2012).  

At paragraph 47 of its judgement, the Court of Appeal in Dumliauskas  also had consideration to the following:

“Lastly, I refer to what my Lord Jackson LJ said in SE Zimbabwe v Secretary of State for the Home Department [2014] EWCA Civ 256 [2014] Imm AR 4:

  1. It is clear from the first part of paragraph 19 that the Upper Tribunal took into account SE’s good progress to date in rehabilitation. The tribunal treated that as a factor in SE’s favour.
  2. The last sentence of paragraph 19 is directed to the effect of Essa (EEA: Rehabilitation/Integration) [2013] UKUT 316 (IAC). This was a decision concerning EU citizens who committed offences and were being considered for deportation. Blake J observed at paragraph 37 that it was in the interests of the citizen, the host state and the Union itself that the offender should cease to offend. Accordingly, if the offender’s rehabilitation is incomplete, it is relevant to consider the offender’s prospects of future rehabilitation (a) if he is deported to his home state and (b) if he remains in the host state.
  3. I agree with that analysis. The European Union has a collective interest in promoting the rehabilitation of all EU citizens who have lapsed into crime.
  4. What the Upper Tribunal was saying in the last sentence of paragraph 19 of its decision in the present case was that that analysis does not apply here, because SE is not an EEA national. I agree with that proposition.
  5. SE is a violent offender, who has made good progress towards rehabilitation. At the time of sentence, his risk of re-offending was assessed as high. That risk is now assessed as medium. It is reasonable to suppose that if SE is deported to Zimbabwe, he will not receive the same level of support and assistance in continuing his rehabilitation process. However, it is also right to note that there was no evidence about this because the issue was not raised; the observation of the Upper Tribunal on the point was really in the nature of an aside.
  6. From that point of view, it may be thought that it is desirable for SE to remain in the UK, so that he can access the services of probation officers and other professionals. On the other hand, in the general run of cases, I do not think that this is a valid consideration under article 8 of ECHR. The prospective deportee cannot say:

“I am a criminal. I am only part way through the process of rehabilitation. If I remain in the UK, I will probably become reformed with the help of probation officers and other professional staff. If deported to my home country, I am likely to return to my criminal ways. Therefore I should stay here.”

  1. In my view, absent exceptional circumstances, this is not a valid argument. The offender cannot rely upon his own partially unreformed criminality as a factor relevant to either his family life or his private life”.

The Court of Appeal   in Dumliauskas  was  unable to accept the Secretary of State’s submission that the prospects of rehabilitation are irrelevant unless the offender has a permanent right of residence.

The Court of Appeal however stated that they were bound to accept, on the authority of the judgment of the Court of Appeal in Daha Essa (2012) that the Secretary of State, and therefore the Tribunal, must consider the relative prospects of rehabilitation, in the sense of ceasing to commit crime, when considering whether an offender should be deported

The Court of Appeal however found that , different considerations applied to questions of evidence and the weight to be given to the prospects of rehabilitation. As to evidence, it was noted that as a matter of practicality, it was easier for the Secretary of State to obtain evidence as to support services in other Member States. However, in the Court of Appeal’s judgment, in the absence of evidence, it is not to be assumed that medical services and support for, by way of example, reforming drug addicts, are materially different in other Member States from those available here.

The Court of Appeal in agreement with what was said by the Upper Tribunal in Vasconcelos, did not consider that in the case of an offender with no permanent right of residence substantial weight should be given to rehabilitation. The Court of Appeal considered that it appreciated that all Member States had an interest in reducing criminality, and that deportation merely exports the offender, leaving him free to offend elsewhere. The Court however considered that the whole point of deportation was to remove from the country someone whose offending rendered him a risk to the public. The Court stated that the parent Directive recognises that the more serious the risk of reoffending, and the offences that an EEA national may commit, the greater the right to interfere with the right of residence. Article 28.3 of the Directive requires the most serious risk, i.e. “imperative grounds of public security”, if a Union citizen has resided in the host Member State for the previous 10 years. Such grounds will normally indicate a greater risk of offending in the country of nationality or elsewhere in the Union. The Court considered that the greater the risk of reoffending, the greater the right to deport.

The Court of Appeal observed that a deported offender would not normally have committed an offence within the State of his nationality. There was noted to be a real risk of his reoffending, since otherwise the power to deport does not arise. The Court of Appeal considered that nonetheless, the offender will not normally have access to a probation officer or the equivalent and that this must have been obvious to the European Parliament and to the Commission when they adopted the Directive. The Court of Appeal considered that for the lack of such support to preclude deportation was difficult to reconcile with the express power to deport and that in their judgment, it should not, in general, do so.

The Court of Appeal found that in AD, the First-tier Tribunal had erred in accepting that appropriate medical treatment would be available to him in Lithuania, but found that no rehabilitative programme for him, as a recovering drug addict, would be available in Lithuania. It was considered that the Upper Tribunal  should not have upheld the First-tier Tribunal’s assessment of proportionality, which was flawed. The Secretary of State’s appeal was allowed; the decision of the Upper Tribunal was set aside, and AD’s appeal remitted to be heard afresh, in the light of the latest evidence.

In LW, the Court of Appeal allowed the Secretary of State’s appeal and remitted the case to the Upper Tribunal for a fresh hearing.

In the case of ME, the Secretary of State’s appeal was allowed and his case was remitted to the Upper Tribunal.

MC (Essa principles recast) Portugal [2015] UKUT 520 (IAC):

The issue was to what extent the prospect of rehabilitation was to be taken into account in an EEA deportation appeal and also what extent do the Essa principles still hold good?

The appeal was brought by the Secretary of State against the determination of First-tier Tribunal allowing the EEA national, MC’s appeal against the decision of 14 May 2014 to make a deportation order.

The First Tier Tribunal held that as MC had not been in the UK exercising Treaty

rights for a continuous period of five years, he was entitled only to the lowest level

of protection set out in Regulation 21. The Tribunal concluded that despite the

EEA national’s expressions of remorse and contrition there was a real likelihood that he may offend again. It was concluded that MC represented a genuine, present and sufficiently serious threat to one of the fundamental interests of society. Citing Essa ( Essa (EEA: rehabilitation/integration) [2013] UKUT 316 (IAC)), the First Tier Tribunal in relation to the factor of rehabilitation, the Tribunal described this factor as “the prospects of rehabilitation as between this country and Portugal and an awareness of the interest ‘of the European Union in general’.

The First Tier   Tribunal concluded that they had considered the potential result of a deportation to Portugal of MC and the likely diminution of the family support for the him and a withdrawal of the discipline of the licence conditions which he now faced since his release and the benefits of regular supervision in the community. The Tribunal considered whether this would have the capacity in the future to reduce the risk of re-offending he currently presented. The Tribunal considered that if this combination of support significantly reduced MC’s risk of offending, it could undermine to a significant degree the proportionality MC’s removal. It appeared to the Tribunal that none of the reports suggested that MC was incapable of rehabilitation. MC was however noted to be required to fundamentally change his current attitude and approach. As between Portugal and the United Kingdom, the Tribunal considered that MC was more likely to address his offending behaviour in the United Kingdom with the current support he had around him. The support factors could encourage the MC to develop stability in his life and his relationships and these support factors are significantly stronger in the United Kingdom.

The Tribunal stated that they had balanced all the factors in the case and the issues raised in respect of the proportionality of the decision. It was considered by the First Tier Tribunal that the decision of the Secretary of State was not justified on the grounds of the prevention of disorder and of further crimes and was not a proportionate response. It was concluded that although MC represented a genuine, present and sufficiently serious threat to one of the fundamental interests of society his deportation would not be proportionate. MC’s appeal under the EEA regulations was allowed.

The Secretary of State appealed the decision.  It was submitted that in allowing the appeal under the 2006 EEA Regulations, the First Tier Tribunal judge’s decision to treat the prospect of rehabilitation as a substantial relevant factor amounted to a misunderstanding of the guidance given in Essa (EEA: rehabilitation/integration)[2013] UKUT 316 (IAC). The judge had wrongly treated Essa (2013) as enunciating the general principle that every EEA national should be given the opportunity to be rehabilitated in the EU member state where the offences were committed. The judge had also misunderstood that the Tribunal in Essa (2013) had held that the prospect of rehabilitation could only be weighed in the balance against deportation in respect ofthose who had acquired a right of permanent residence. In the claimant’s case the judge had found that he had not been exercising Treaty rights for the requisite five years. The Secretary of State also sought to amend grounds so as to enable her to rely on the further guidance on the issue of rehabilitation in EEA deportation cases given by the Court of Appeal in Secretary of State for the Home Department v Dumliauskas  & Ors [2015] EWCA Civ 145 . It was submitted that if the judge had had the benefit of this guidance he would have concluded that little weight should be attached to the claimant’s prospects of rehabilitation.  In turn he would not have found a breach of Article 8 because he would have had to treat failure under the EEA Regulations as strengthening the public interest in deportation.

The Upper Tribunal in MC considered the issues as follows:

 28. In addition to these three cases on Essa, the recent Court of Appeal judgment in Dumliauskas has significantly recast what have been referred to as Essa principles. Whereas the Tribunal in Essa had concluded that the prospects of rehabilitation in the offender’s home state are relevant to the decision to deport only if he has acquired a permanent right of residence, Sir Stanley Burnton (LJJ Floyd and Jackson concurring) disagreed, stating at [46]:

 “Whilst I have considerable sympathy with this approach, I am unable to agree with it. I can think of no other example of a factor bearing on proportionality being relevant to those who qualify in a certain respect (here, lawful residence) but not others. Once proportionality is engaged, the factors to be taken into account do not vary with the qualifications of the individual concerned… What is however affected by length of legal residence (in the sense used in Article 16.1) is the weight to be given to the respective prospects of rehabilitation. In addition, it seems to me that the decision of the Upper Tribunal in Daha Essa is inconsistent with what was said by Maurice Kay LJ in Daha Essa.”

  1. We do not understand Dumliauskas to have overruled the entirety of the guidance given by the Upper Tribunal in Essa (2013); indeed Maurice Kay LJ expressly approved parts of it. However, in light of the further analysis provided in Dumliauskas it may assist if we seek to summarise cumulatively what these principles are, as now modified by this judgment:-

 

  1. Essa rehabilitation principles are specific to decisions taken on public policy, public security and public health grounds under regulation 21 of the 2006 EEA Regulations.
  2. It is only if the personal conduct of the person concerned is found to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (regulation 21(5)(c)) that it becomes relevant to consider whether the decision is proportionate taking into account all the considerations identified in regulation 21(5)-(6).
  3. There is no specific reference in the expulsion provisions of either Directive 2004/38/EC or the 2006 EEA Regulations to rehabilitation, but it has been seen by the Court of Justice as an aspect of integration, which is one of the factors referred to in Article 28(1) and regulation 21(6) ( Essa (2013) at [23]).
  4. Rehabilitation is not an issue to be addressed in every EEA deportation or removal decision taken under regulation 21; it will not be relevant, for example, if rehabilitation has already been completed ( Essa (2013) at [32]-[33]).
  5. Reference to prospects of rehabilitation concerns reasonable prospects of a person ceasing to commit crime ( Essa (2013) at [35]), not the mere possibility of rehabilitation.
  6. Where relevant (see (4) above) such prospects are a factor to be taken into account in the proportionality assessment required by regulation 21(5) and (6) (( Dumliauskas [41]).
  7. Such prospects are to be taken into account even if not raised by the offender ( Dumliauskas [52]).
  8. Gauging such prospects requires assessing the relative prospects of rehabilitation in the host Member State as compared with those in the Member State of origin, but, in the absence of evidence, it is not to be assumed that prospects are materially different in that other Member State ( Dumliauskas [46], [52]-[53] and [59]).
  9. Matters that are relevant when examining the prospects of the rehabilitation of offenders include family ties and responsibilities, accommodation, education, training, employment, active membership of a community and the like ( Essa (2013) at [34]). However, lack of access to a Probation Officer or equivalent in the other Member State should not, in general, preclude deportation ( Dumliauskas [55])
  10. In the absence of integration and a right of permanent residence, the future prospects of integration cannot be a weighty factor ( Dumliauskas [44] and [54]). Even when such prospects have significant weight they are not a trump card, as what the Directive and the 2006 EEA Regulations require is a wide-ranging holistic assessment. Both recognises that the more serious the risk of reoffending, and the offences that a person may commit, the greater the right to interfere with the right of residence ( Dumliauskas at [46] and [54]).

 

  1. On the logic of the Essa principles as revised by the Court of Appeal in Dumliauskas it is not open to a Tribunal re-making the decision in an appeal concerning an EEA national who has not acquired permanent residence to attach substantial weight to the prospects of his rehabilitation……”

The Upper Tribunal in MC found that the First Tier Tribunal   materially erred in law and setside the decision allowing MC’s appeal. MC’s appeal was reconsidered by the Upper Tribunal and dismissed.

CONSIDERATIONS AND CONCLUSION

Having regard to the wording used in the judgments, it appears that there is no total exclusion of a running of an argument based on rehabilitation   where no permanent residence has been acquired. The criticism is to the attachment of substantial weight to the prospects of rehabilitation. It is therefore possible to advance an EEA deportation appeal having regard to issues of rehabilitation but also placing some weight on other applicable factors counting against deportation in the proportionality balance exercise.

On the basis of MC, where the Tribunal correctly finds that the personal conduct of the EEA nationals does not represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society then issues of proportionality   should be  redundant   and as such that should be the focus of argument in EEA deportation appeals where the facts and evidence supports it. The usual assortment of important documents such as Sentencing Judge’s Remarks, Pre-Sentence reports, NOMS’s report, OASY’s report including any relevant expert evidence as well as current Probation Services reports, where helpful,    should still assit in advancing an argument that such a threat does not arise.

As reference to prospects of rehabilitation concerns reasonable prospects of a person ceasing to commit crime and not the mere possibility of rehabilitation, then where a potential deportee is imprisoned they may consider, where they have genuine intentions in this regards, that they ensure that they are enabled to undertake relevant   awareness courses seeking to address their offending behaviour; where this is not forthcoming then repeated written request applications by the potential deportee in this regards should be retained for reliance in a possible future deportation appeal.

The Court of Appeal in Dumliauskas made a references to the principles in SE Zimbabwe v Secretary of State for the Home Department [2014] EWCA Civ 256 [2014] Imm AR. That case considered the deportation appeal of a non-EEA national and it was considered there that an offender cannot rely upon his own partially unreformed criminality as a factor relevant to either his family life or his private life   As noted by the Courts, there is no specific reference in the expulsion provisions of either Directive 2004/38/EC or the 2006 EEA Regulations to rehabilitation, but it has been seen by the Court of Justice as an aspect of integration. In combination with taking the reference to SE Zimbabwe into account in relation to the applicability of rehabilitation issues in EEA deportation appeal, the Court of Appeal  appeared to express some ill – concealed frustration:

“51.It is notorious that a great deal of offending is linked to illicit drugs and/or to alcohol. Addiction to drugs leads to crimes of acquisition, including theft, burglary and robbery, aimed at financing the purchase of drugs to feed the addiction. Alcohol affects self-restraint and is particularly associated with crimes of violence.

51.I am bound to accept, on the authority of the judgment of this court in Daha Essa, that the Secretary of State, and therefore the Tribunal, must consider the relative prospects of rehabilitation, in the sense of ceasing to commit crime, when considering whether an offender should be deported. I have to say that but for that authority, I would have said that this was a factor to be considered if raised by the offender, but not otherwise, just as the effect of deportation on the health of an offender need not be considered unless it is made known to the Secretary of State that it is a relevant factor”.

It may be that had the Court of Appeal in Dumliauskas not been bound by earlier authority, it may well have decided that EEA deportation appeals in relation to considerations of rehabilitation should be considered in the same way as non- EEA deportation appeals.

 

The Immigration Bill 2015: Message to “Illegal” Migrants in the UK- Leave Says the UK Government


The UK Government’s Announcement of 17 September 2015, “New measures will make it tougher than ever before to live illegally in the UK”, coincides with the publication of the new Immigration Bill which was published the same day. The bill is intended to become the Immigration Act 2016. The Bill is meant to build up on the Immigration Act 2014.  To put it in basic terms, a view can be taken that the Bill sets out the UK Government’s intention of getting the  UK rid of not only those without current leave to be here but also those who have leave but are refused and are intending to appeal in- country but will be denied that opportunity.

The UK Government is not hiding the fact that they want undocumented migrants in the UK to leave, if not voluntarily, then by force.  The Immigration Act 2014 is also intended to make life harder for those without leave to remain and also those whose claims have been refused and are intending to appeal whilst in the UK.   The Immigration Act 2014 has generated litigation and its provisions are expected to   continue generating legal   challenges in future in the higher courts- as such it is doubted that the publication of the new Bill or its coming into force will result in an orderly queue  to the airport any time soon by those it is intended to target.

THE MAIN CLAUSES

The new Bill is to be read together with several published FactSheets relating to the various clauses.

  • Labour Market Enforcement- Clauses 1 to 7:

With a stated view to cracking down on serious exploitation of workers, the Government will appoint a new Director who will oversee the relevant enforcement agencies to provide an  enforcement strategy for non-compliance in the labour market. The Government believes that   the  main bodies responsible for ensuring minimum standards are met for workers are currently not designed to deal with the increase in organised criminal activity engaging in exploitation in the labour market. It is believed that this kind of worker exploitation often appears to involve migrant workers. There will be created a new Director of Labour Market Enforcement appointed by and reporting to both the Home Secretary and the Secretary of State for Business. The Director’ s remit will cover labour market breaches, not immigration offences. The Director and the enforcement bodies will work closely with immigration enforcement wherever labour market breaches are linked to illegal immigrants or people working in breach of their visa conditions.

  • Illegal Working – Clauses 8-11:

The Government currently has powers to prosecute migrants with permission to be in the UK who are working illegally in the UK in breach of their conditions, however the Government considers that there is a gap in the current legislation  as it does not cover people who have entered the UK  illegally or overstayed their visas. A new offence will close this gap  by covering any worker – self employed as well as employed.

With the intention of making it harder for people to live and work illegally in the UK, the Government will make it a criminal offence to work illegally, with  a sanction of a fine and/or a custodial sentence of a maximum of 6months. By making illegal working a criminal offence in its own right, this will allow  wages paid to all illegal workers to be recoverable  under the Process of Crime Act 2002.

The Bill will make it an offence for an employer to employ someone whom they “know or have reasonable  cause to believe” is an illegal worker. The maximum custodial sentence on indictment for an offence of employing an illegal worker will also be increased from two years to five years. These powers are intended to operate alongside and reinforce  the existing system of heavy financial penalties for businesses that negligently employ illegal workers. The new measures are intended to build on legislation introduced in 2014 to strengthen punishments for employers which included doubling the maximum civil penalty to £20,000 per illegal worker.

As regards employers who continue to flout the law by employing illegal workers and evade sanctions, the Bill will introduce a power to close premises for up to 48hours. The closure may be cancelled if the employer demonstrates that they have conducted right to work checks where illegal workers have been identified. Where they cannot, the next step is to place the business under special compliance  requirements, as directed by the courts. This can include continued closure  for a period, followed by re-opening  subject to the requirement to conduct right to work checks and inspections for compliance.

  • Driving Licenses- Clauses 16 and 17:

The Government’s intention is to prevent illegal immigrants from retaining UK driving licenses. The immigration Act 2014 provided the power to revoke UK driving licenses held by illegal immigrants. Foreign issued licenses cannot be revoked by the UK Government. Immigration Officers do not currently have the power to seize   revoked UK licenses that they encounter. It is the responsibility of the license holder to return the revoked license to the DVLA and failure to do so is a criminal offence. The Immigration Bill 2015 will provide two new measures which build on the driving license related powers in the 2014 Act.    It will provide a power for police and immigration officers to search people and premises, in order to seize the UK driving licenses(whether revoked or not) of illegal migrants.  The Bill creates a new criminal offence of driving whilst unlawfully present in the UK, which carries a custodial sentence of 6months and/or fine of up to the statutory maximum. The new offence of driving whilst unlawfully present is anticipated to be a power to be used primarily by the police, in the course of their work who may encounter drivers who are not lawfully present driving on the UK roads. The vehicle used may be detained and upon conviction, the court may order its forfeiture. If a police officer stops a motorist for a driving offence, they can check the immigration status of that individual. If the individual is here illegally, the police officer will be able to search for and seize their UK driving license, arrest them for the driving offence and detain the vehicle. If the migrant is convicted of the offence, the court may order forfeiture of that vehicle. This is intended to make it harder for illegal migrants to lead a settled life in the UK.

  • Banks- Clause 18:

The Government intends to make it harder for illegal migrants to live and work in the UK by working with banks and building societies to restrict their access to bank accounts.

The Immigration At 2014 prohibited banks and building societies from opening current accounts or individuals who are in the UK unlawfully. Checks are performed with the anti- fraud organisation Cifas. The new Bill goes further and includes measures   to prevent illegal migrants from continuing to operate existing bank accounts. This includes bank accounts opened before the 2014 Act prohibition came into force and also where accounts were opened during a period of lawful stay but where the migrant has remained in the UK after their leave expired.

Banks and building societies will be required to check regularly  whether they are operating a current account   for a person known to be in the UK illegally, according to information provided by the home office via a specified organisation. If a bank establishes that   a customer  is an illegal migrant, they will have a duty to report the match and details   of any other accounts they provide to the Home Office. Measures in the bill will provide the home office with a graduated range of option which could be deployed where a current account holder is confirmed to be unlawfully present. These include requiring banks and building societies to close the illegal migrant’s accounts as soon as reasonably practicable. This measure will be used in routine cases to disrupt the illegal migrant’s ability to remain in the UK and to encourage them to leave voluntarily. The Home Office will be granted the power to apply to the courts to freeze the current account until the illegal   migrant leaves the UK. Use of this power is intended to be targeted towards hard to remove cases with significant funds, to leverage co-operation with the removal process. The Bill provides for prosecuting   individuals for the new criminal offence of working illegally and recovering wages as proceeds of crime. This measure will be used where there is clear evidence that the assets are the proceeds of illegal working and the person meets the criteria for prosecution. Where the account is frozen, the individual will be able to access their funds to meet basic essential living needs and the level of funds will be determined by the courts in such cases.

The measures are intended to make it harder to live a settled life unlawfully in the UK and to incentivise voluntary departure.

  • Residential Tenancies- Clauses 12-15 :

The Government intends to make it more difficult for those with no right to be in the UK to rent private accommodation.

The Immigration Act 2014 introduced the Right to Rent scheme, which set out to prohibit illegal migrants from accessing private sector rented housing. The Right to Rent scheme was first implemented in part of the West Midlands and the Government has announced its intention to expand the scheme across the UK. Under the scheme, private landlords, letting agents and homeowners who let rooms need to check the right of prospective tenants to be in the country by conducting simple document checks, for example a passport or biometric residence permit. Landlords who fail to make the right checks are liable for a civil penalty of up to £3,000 per illegal migrant tenant.

Immigration status is not currently a ground for eviction, but landlords may be able to gain possession for other reasons. The Bill will enable landlords to evict illegal migrant tenants more easily, and in some circumstances without a court order. Landlords will obtain a notice issued by the Home Office which confirms that the tenant is disqualified from renting in the UK as a result of their immigration status. On receipt of this, the landlord will be expected to take action to ensure that the illegal migrant leaves the property. The Government is also   introducing four new criminal offences to target unscrupulous landlords and agents who exploit migrants and who repeatedly fail to carry out right to rent checks, fail to take steps to remove illegal migrants from their property. These landlords or agents may face a fine, up to five years imprisonment, both a fine and imprisonment and further sanctions under the Proceeds of Crime Act.

The Bill intends to encourage illegal migrants, who are evicted, to make arrangements to depart from the UK. If they do not the Government states that they will take steps to remove them.

  • Enforcement Officer Powers- Clauses 19-28 and 30:

The Government intends to tackle illegal immigration and minimise its impact on public services, communities and businesses in the UK.

Immigration officers currently have powers to examine, arrest and detain illegal migrants for the purpose of removal. They also have search powers to find passports and travel documents to aid removal but if they find other evidence of use to law enforcement partners they cannot always act.

Immigration officers currently do not have powers to search for and seize evidence where the intention is to take administrative action, either to remove an illegal migrant from the UK or to serve a civil penalty notice on an employer or landlord. The Bill provides additional powers of search and seizure, but no extra entry powers.

The Immigration Bill will give immigration officers powers to seize and pass on evidence where there are reasonable grounds to believe it has been obtained through, or is evidence of, a crime and where it is necessary to prevent it being concealed, damaged, or destroyed.

The Bill creates new powers to allow officers to search for and seize evidence of illegal working (such as pay slips or time sheets) or of illegal renting (tenancy agreements and letting paperwork).

Detained migrants and prisoners facing deportation are subject to routine searches for items which may pose a threat to security, but not for nationality documents. This Bill creates new powers to search for and seize these documents which will help speed up removal.

The Bill ensures warrants for immigration officers to enter premises are aligned with police warrants.

The Bill provides a power to cancel leave extended by statute where conditions of leave have been breached or the applicant uses or has used deception in seeking leave to remain.

  • Immigration Bail- Clause 29

The Government   intends to create a new power to allow the Home Office to require the courts to tag foreign offenders released on immigration bail but are waiting to be deported so   that the Government always knows exactly where they are. This is intended to prevent absconding and increase the number of criminals deported. Currently, when a foreign national offender is released on bail, a judge has the discretion to tag a foreign national offender. The Immigration Bill will change the law to allow the Home Office to mandate a tag as a bail condition when an individual is released on bail. Tagging foreign national offenders using GPS technology is intended to allow immigration officers to more quickly re-detain them when deportation is imminent. The Government considers that monitoring individuals using GPS tags will also improve public protection.Illegal migrants, including foreign national offenders, who are awaiting deportation or removal, can be placed on conditions, such as reporting, if detention is not appropriate. The Government considers that the current legal framework for this is complex and fragmented as there are six different legal statuses including immigration bail and temporary admission. It is believed that this complexity is confusing and leads to litigation. The reforms will create a single power of bail, where it is clear what conditions can be imposed, when and what the sanction is for breaching conditions. Tagging will not automatically apply to all non-detained foreign national offenders as the government will seek electronic monitoring as a condition of bail when an foreign national offender is released.

  • Appeals- Clauses 31 to 33:

The Government intends to make it easier to remove those who have no right to be in the UK by enabling them to remove a person whose human rights claim has been refused and making them appeal outside the UK, provided this does not breach their human rights. The intention is to extend the current “ deport first , appeal later” policy to other immigration cases and not just foreign national offenders liable to deportation. The Immigration Act 2014 reduced the number of rights of appeal against immigration decisions from 17 to 4. It also created a new power to allow those subject to deportation, primarily foreign criminals, to be deported first so that they have to submit any appeal after their removal – i.e. from outside the UK – so long as this does not cause serious irreversible harm or, otherwise breaches human rights. The Government now plans to extend this power to enable it to be applied to all immigration cases. A person will therefore only be able to appeal before removal where an asylum claim has been refused (provided it is not clearly unfounded) or where a human rights claim has been refused (provided it is not clearly unfounded) and there is a real risk of serious irreversible harm or other breach of human rights if the person is removed before the appeal. Where there is a real risk of serious irreversible harm, or breach of human rights, the Government states that the person cannot be removed from the UK before their appeal has been determined.

  • Support for Certain Categories of Migrants- Clause 34:

The government expects more illegal migrants to leave   the UK rather than access support. They intend to restrict the support they give to people whose claims for asylum have been found unsubstantiated and their dependants, to those who are destitute and face a genuine obstacle to leaving the UK through changes to the Immigration and Asylum Act 1999.

The UK provides support for asylum seekers who would otherwise be destitute until their claim is finally determined, in line with their international obligations. However, the Immigration and Asylum Act 1999 provides support in broader circumstances. Section 94(5) allows failed asylum seekers with children to continue to receive the same support once their asylum claim has been finally rejected. Section 4 of the 1999 Act provides support for other failed asylum seekers and other categories of migrants.

The Immigration Bill aims to reduce the scope for such support to remove incentives for failed asylum seekers to remain in the UK illegally.

The Bill will make these key changes to the existing support framework: those with children with them when their asylum claim and any appeal are rejected will no longer be treated as though they were still asylum seekers and will cease to be eligible for support under section 95; section 4 will be repealed and support will only be available to failed asylum seekers and any dependent children if there is a practical obstacle that prevents them from leaving the UK.

To avoid destitution, the Home Office will continue to support failed asylum seekers with children if they cannot leave the UK because of a practical obstacle beyond their control (for example because they are unable to travel for medical reasons or because they are waiting for their national embassy to issue them with travel documents).

As regards how the proposals affect asylum seekers and refugees, the Government states that they will not. They state that they will continue to meet their international obligations to both groups. Asylum seekers who are destitute will be provided with accommodation if they need it and a weekly allowance to cover their essential living needs. If they are granted refugee status, they will have access to the labour market and be eligible to apply for mainstream benefits.

There will be transitional arrangements for failed asylum seekers already in receipt of support under section 95 or section 4 of the 1999 Act when the new measures come into force. This will avoid the scenario in which large numbers of families lose support abruptly. There are existing powers to manage these cases off support if they refuse to take steps to leave the UK voluntarily and these will be used on a case-by-case basis.

  • Border Security- Clauses 35 to 37:

The Government state that they intend to crack down on those who exploit illegal migrants by seeking to smuggle them into the UK. The Bill will give Border Force new powers to target vessels in UK territorial waters suspected of involvement in facilitating illegal entry into the UK.Border Force operates a fleet of cutters to enforce revenue and customs matters, in particular to lead the fight against the importation of controlled substances. Officers on board cannot exercise immigration powers in UK territorial waters so cannot intervene when they identify vessels which they suspect to be involved in facilitating illegal migration. The Immigration Bill will provide Border Force Officers with new powers to: stop, board, divert and detain a vessel where there are reasonable grounds to suspect that it is being used to facilitate the breach of immigration law or is being used in connection with such facilitation; search a ship and anyone and anything on the ship to obtain information or evidence of the facilitation offence; arrest of any person reasonably suspected of being guilty of an offence of facilitation and seize relevant information or evidence; use reasonable force in the exercise of any of these powers or functions.

When passengers arrive on international commercial flights they must present at immigration control. Carriers and port operators who fail to comply with their legal obligations in this regard may be liable for a criminal offence. The Immigration Bill will create a civil penalty scheme to incentivise carriers and port operators to invest in better passenger management processes. The detail of the scheme will be in secondary legislation and codes of practice, including the maximum penalty that can be imposed.

Travel bans restrict the movement of named individuals associated with regimes or groups, including terrorist groups, whose behaviour is considered unacceptable by the international community. The decision to impose a travel ban is made either by the United Nations’ Security Council or by the Council of the European Union. To implement travel bans in the UK, secondary legislation is laid before Parliament to amend the Immigration (Designation of Travel Bans) Order 2000. The Immigration Bill will remove the need to update this secondary legislation. Instead international travel bans against non EU nationals will take effect in the UK automatically.

  • English Speaking in the Public Sector- Clauses 38 to 45:The Government wants to ensure that all public sector workers in customer- facing roles can speak fluent English.

The code of practice will outline the standard of spoken English to be met, the action to be taken by a public authority where someone does not meet that standard, the procedure to be operated to deal with any complaints and how the public authority can comply with its other duties including its obligations under the Equality Act 2010.

The Government   will place a duty on public authorities to ensure that each person who works for a public authority in a customer-facing role, speaks fluent English. In determining how to comply with this duty, a public authority must have regard to a code of practice. The duty will ensure every citizen receiving help or advice is served by someone who can provide them with advice in clear English.

At the moment, the Government believes that there are many vital customer-facing public sector roles which do not require the job holder to be a fluent English speaker. This includes unqualified teachers, teaching assistants and unregulated NHS staff. It is considered that this cannot be allowed to continue for roles where communication with the British public is vital to deliver an effective service.

  • Fees and Charges- Clauses 46 to 50:

The Government wants to encourage businesses to source   the skilled workers that they need from the resident labour market. They intend to introduce an immigration skills charge , which is intended to help address current and projected skills needs in the UK economy and contribute to reducing net migration.

The Bill will also allow the Home Office to formalise the framework of costs underpinning the passport fees to apparently better reflect the costs incurred in providing passport services, for example the costs of processing more complex applications requiring costly Home Office interventions, and to allow some passport fees to be set at above cost. This is intended to alleviate the corresponding burden on the vast majority of passport applicants and potentially facilitate further fee reductions.

Existing legislation governing the registration of births, deaths, marriages and civil partnerships is considered restrictive in terms of the products and services for which fees may be charged. The Bill will introduce what is stated to be modernised and flexible fee-raising powers in respect of services provided, enabling fees to be set for a wider range of products and services than is currently possible. This is stated to be intended to reduce the burden for providing registration services on the taxpayer by allowing such services to become increasingly self-sufficient.

The Bill will introduce a new immigration skills charge which will be applied to employers sponsoring non-EEA nationals who come to the UK under Tier 2 of the Points-Based System. The specific employers and amount will be set following consultation. The money raised will then be used to address skills gaps in the UK by contributing to funding training, particularly more apprenticeships.

CONSIDERATIONS

On the basis of the new Bill as per the Government’s intentions, those without leave to remain may seriously wish to consider seeking to regularise their immigration status in the UK. It is not every person who is undocumented who cannot establish a legal basis of stay upon application.  It is possible for such a person to rely upon the   Immigration Rules themselves as a basis of stay.

A person may be able to show by way of  documentary evidence that they have been living in the UK continuously for at least 20years and be granted leave to remain.

A person without leave may be able to show that he has a child aged under 18years in the  UK who has spent at least 7years continuously here and argue that it would be unreasonableness to expect the child to be removed with the parent to the country of origin.

Further a young person aged between 18 and 25years may also be able to show that they have lived continuously in the UK for half their lives.

It may also be possible to show that they are applicable exceptional circumstances in an individual or family case such that they should be granted leave to remain in the UK outside the immigration rules by reliance upon Article 8 of the ECHR.

A single mother with no leave to remain may have a child who is British by virtue for example of that child having been born of a British or settled father. A “Zambrano”  application or family life Article 8 human rights application may be submitted to the Home Office. As regards the “Zambrano” application, a primary carer of a British citizen will qualify for a derivative right of residence where they can show that they are a primary carer of a British citizen who is residing in the UK, and would be unable to reside in the UK or in another EEA state if they as the primary carer are required to leave the UK.

An undocumented father may have a British child but be separated from the British or settled mother yet be able to obtain an order from the family courts ordering  contact and therefore be able to apply for leave to remain as a parent seeking to have access to the child.

The Government intends to extend  the “ deport first, appeal later ” powers to all immigration cases. This certification procedure is challengeable (where there are merits to the case) by way of judicial review and where a claim is made in some cases removal is normally suspended pending a decision on grant of permission to proceed with the claim. The Home Office has published guidance on how to apply the “serious irreversible harm test” and the relevant   guidance gives the following example of where serious irreversible harm could result: the person has a genuine and subsisting relationship with a child or partner who is seriously ill, requires full-time care, and there is no one else who can provide that care. Not many people will be able to meet the high threshold applicable to resist removal. In the Government’s Fact Sheet, in response to how many appeals have been allowed under the existing “ deport first appeal later” provisions, the Government’s response as published on 17 September 2017 is ,”Over 230 foreign national offenders have been removed under these powers and 67 have lodged an appeal, of which three have been determined and were dismissed. In addition, over 1,200 EEA foreign national offenders have been removed under equivalent powers and 288 have lodged an appeal”. Basically the answer is none and as such providing for an out of country appeal in practise is simply an illusion, with only a mere hope of obtaining a successful outcome, however in deserving cases with prospects of success, it is suggested that the certification procedure be challenged by way judicial review prior to removal action being taken.

CONCLUSION

It is therefore likely that before the Bill becomes law, the Home Office may well see an unexpected flurry of activity as regards submission of applications for leave to remain with the result that those that had been the target of the new provisions  may well  obtain leave to remain, if not granted directly upon application by the Home Office themselves or failing that following a successful in country appeal as it is not every case that can be certified or not have such certification successfully lifted.

 

 

Impact Of The Minimum Income Financial Threshold Requirement On Families: Is The UK Government Being Cold- Hearted?

The UK Government has managed for over 3years to cold-heartedly resist  calls to scrap/amend the minimum financial income threshold requirements  despite the adverse effects of the measures upon families.

On 9 July 2012, the UK Government introduced  requirements through Appendix FM  to the Immigration Rules that British citizens, those settled here, including those with  refugee status show by way of specified evidence( by reference to Appendix FM-SE to the Immigration Rules)   that they earn at least £18,600 gross per annum  to enable sponsorship of  their foreign spouses/partner’s entry clearance visa or leave to remain applications. The financial requirements  refer to the  requirements contained in paragraphs E-ECP.3.1  and E-ECP.3.2 of Appendix FM. Where children who are not British, settled here or EEA nationals are also  to be sponsored, an additional £3,800 per annum for the first child would be required and then £2,400 for each additional child.

THE PROBLEM?

The problem is that Sponsors are finding it difficult to meet the requirements. The result is that families are being kept apart. Take the exampe of a British citizen who has  met and  married a foreign national abroad, had a child or children resident in that other country but be unable to bring his foreign spouse to the UK simply because he does not earn income which meets the fixed threshold. The children, normally being expected to remain with the mother abroad, are inevitably  caught up in a situation where they very occasionally see their UK settled parent who between periods of separation may be making efforts to undertaking  the necessary employment or self-employment in order to evidence that the requirements are met.  The UK settled sponsor,  due to inability to meet the income requirement from a single source of employment  may  also find that he has no choice but to undertake additional  second employment. The result is that in light of the need to show relevant requisite evidence relating to continuity of employment, the father will  not be able to undertake visits abroad for  some several months thus impacting upon his family life with his children and spouse.

SUMMARY:HOW TO MEET THE RULES

There are various ways in which the income threshold of at least£18,600 can be met:

  • Through the sponsor’s employment in the UK. The sponsor is required to have been in the same job  earning the income threshold for 6months. Where the Sponsor has changed employment, he must have met  the total annual amount required during the previous year;
  • Through the sponsor’s self-employment in the UK. The sponsor is required to show  that they earned the income threshold in the last full financial year or as an average of the last two full financial years;
  • Through the Sponsor’s employment or self-employmemt outside the UK, where the sponsor is returning to the UK with their partner. The sponsor is required to meet the income threshold as if in the UK. The Sponsor must also have a job offer or established self-employment in the UK that meets the income threshold;
  • Partner’s earnings in the UK. The income threshold can only be met if the foreign partner is working or is self- employed legally  in the UK; prospective earning are not taken into account;
  • Savings. Subject to applicable calculations, savings of above £16,000  are treated as income. The savings cannot be used to supplement income from self-employment;
  • Pension from either the sponsor or   partner paid in the UK or from abroad. The full amount needed must have been received in the last 12months;
  • Other forms of income such as maternity allowance, maintainance payments, rental income,payment relating to service in HM Forces, bereavement benefit. The full amount required must have been received alone or as part of the income that meets the income threshold during the previous twelve months.

IMPACT UPON FAMILIES, PARTICULARLY UPON CHILDREN

The Children’ s Commissioner ‘s Office  commissioned a Report with the research carried out by The Joint Council for the Welfare of Immigrants(JCWI) and Middlesex University after the Commissioner’s Office received, “scores of letters from British parents who are unable  to meet the income threshold and are living in uncertainty, with families divided across borders as a result”.  As published on the JCWI website on 9 September 2015, the Report, is dated August 2015 and titled, ” Family Friendly ? The Impact On Children Of The Family  Migration Rules: A Review of the Financial Requirements”.  The  Report  finds that the Rules intended to control immigration were impacting upon thousands of British children. The report, among other matters had regard in detail to the minimum income requirement and the ways in which it can and cannot be met and explored the detrimental impact of the Rules on the well-being  of children who have been separated from a parent as a result. The report also found that  an estimated 15,000 children have been affected by the changes to the financial requirement  since the implementation of the immigration rules in 2012; thousands  have been separated from a parent, many indefinitely; 79% of the children in the survey were British  citizens; problems included separation anxiety; anger directed towards the remaining  and absent parent; withdrawal from the absent parent; guilt and blame for the parent’s abscence; many parents  are suffering from anxiety and separation as a result and the pressure of meeting the financial threshold and that this also directly  impacts upon the children; the income level would not be met by almost half the adult population and many families with children may never be able to meet them; the income threshold is too high and is discriminatory;the Immigration Rules and accompanying guidance do not comply with the duty to safeguard and promote the best interests of all  children in the UK.

The report also concludes that the UK now has the least family- friendly family reunification policies out of 38 developed countries. The report recommends the need to amend the current financial requirements. The principle of  children’ s best interests as a primary consideration should inform the contents of the Immigration Rules rather than being dealt with primarily through exemptions or exceptions; where leave for settlement is  not immediately  possible, visit visas should be granted to enable the family to be together for shorter periods; reducing the income threshold to the equivalent of the minimum wage in the UK; taking  account of the relative level of wages earned outside the UK; reduction of the £16,000 threshold before savings are counted and assets(including equity in property) to count without first being liquidated;inclusion of third party support when calculating whether the income threshold has been met.

CONCLUSION

A legal challenge to  the income threshold passed through the High Court in 2013 however with a successful outcome in that court being subsequently overturned by the court of Appeal in 2014.  It is currently understood that  the relevant case is due to be heard by the Supreme Court. It is hoped that a successful outcome follows, however if unfortunately the challenge does not succeed, then at the very least, so as not to give an appearance of a cold- hearted Government, the detailed recommendations of the Children’s Commissioner’s Office  should be followed to some extent.