Cases such as Babbage, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 148 and  JM (Zimbabwe), R (on the application of) v Secretary of State for the Home Department [2016] EWHC 1773 are often understood  by  some to mean that any Zimbabwean national detained under UK immigration powers is  irremovable.  This is not correct. The  Home Office have incrementally been detaining Zimbabwean failed asylum seekers  upon reporting and some  are  indeed being  removed forcibly to Zimbabwe.

 

The question that becomes relevant  for  Zimbabwe nationals  who have no claims or appeals pending is  this: have the Home Office retained the person’s valid and current passport at some point?  If so, without a legal basis of  being in the UK, the chances of  resisting removal to Zimbabwe are very much  significantly reduced.

Babbage:

 

Babbage, a Zimbabwean national, with no right to remain in the UK, had committed serious offences in the UK. The Court  noted that the Zimbabwean authorities  would only accept returning nationals if they have a passport or wish to return. The question which arose was  whether the Home Secretary could  justify Babbage’s  continued detention when he had made it clear  that he would not agree to his return  to  Zimbabwe. The Court’s answer was “no”  as the primary reason for so holding  was that there had  been no reasonable prospects of returning Babbage  to Zimbabwe since, at least, August 2015.

 

For current purposes, the following is pertinent in relation to Babbage’s case:

 

• • he was a convicted criminal

  • his passport had expired

  • he stated that he did not consent to return to Zimbabwe

  • he had claimed asylum in the UK

  • an emergency travel document(ETD) was to be applied for at the Zimbabwean High Commission as his passport had expired. Obtaining an ETD required two things: first the person had to sign a disclaimer indicating the willingness to return to Zimbabwe and second he had to attend an interview at the Zimbabwean High Commission

  • the Home Office detention reviews referred to the fact that the Zimbabwean authorities will not accept the return of their nationals unless either they hold a current passport or they sign a voluntary disclaimer indicating that they are willing to return to Zimbabwe

  • he had been refusing to attend for interview at the Zimbabwean Embassy. Although he did subsequently attend an ETD interview at the Zimbabwean Embassy, he was   non compliant with the process and an ETD was not issued

  • in the Court’s judgment, Babbage never gave his agreement to return to Zimbabwe. Throughout the period of his detention, it had been clear that the Zimbabwean authorities do not accept non-voluntary returns. There had never been a time when he gave proper consent to his return.

  • the Court held that the Zimbabwean authorities’ position has been made clear over a prolonged period; they would not accept the return of those who do not hold a current passport other than from those willing to go back. It could not be said that there was any realistic, foreseeable prospects of returning Babbage to Zimbabwe.

  • there was no prospect of Babbage being deported to Zimbabwe and his continued detention could not be justified. It was in those circumstances that the Court ordered his release.

JM (Zimbabwe):

 

The case of JM(Zimbabwe), in the context of  judicial review proceedings,  raised for the first time, an important point of principle concerning the true construction and application of section 35 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 to Zimbabwean nationals who refuse to consent to removal to their homeland. JM sought  declaratory relief, damages for false imprisonment at common law, and damages for breach of Article 5(1)(f) of the ECHR, in relation to his detention pursuant to immigration powers between 5^th May 2013 and 25^th May 2016, excluding a period when he was detained pursuant to the sentence of the court in criminal proceedings.

 

For current purposes the following is pertinent in relation to JM’s case:

 

• • he was failed asylum seeker

  • he was a convicted criminal

  • he was offered the opportunity of an assisted return to Zimbabwe under the Facilitated Returns Scheme, but he declined it

  • given that his Zimbabwean passport had expired, his deportation to Zimbabwe predicated the grant to him by the Embassy of an Emergency Travel Document

  • when the Home Office initiated the process of seeking to obtain an ETD for the him and to that end needing him to complete a bio-data form, he informed immigration officers that he did not wish to return to Zimbabwe, and that he would not complete the bio-data form

  • when he attended the Zimbabwean Embassy, he was asked if he wanted to return to Zimbabwe and he replied that he did not

  • it was noted by the Court that it has been  the settled position of the Zimbabwean authorities since 2002 that they will only accept voluntary returnees. Returnees will be asked if they wish to return. It followed in the Court’s view, that anyone who told the Zimbabwean authorities, in answer to their question, that he was unwilling to return would, in practice, be irremovable. This flowed from the stance of the Zimbabwean authorities, and not from that of any returnee

  • JM was entitled to a declaration that the Secretary of State may not lawfully require him, under section 35 of the 2004 Act, to tell Zimbabwean officials that he agreed to return voluntarily.

History of Zimbabwean country guidance caselaw, inter-woven with  the UK’s  previous  policy of non – removals to Zimbabwe:

 

“The Minister of State, Home Office (Lord Rooker): My Lords, the Home Secretary has decided to suspend removals to Zimbabwe until after the presidential election is held. We shall then assess the country situation and the risks faced by individual returnees and decide whether to resume removals. In the meantime, consideration of individual applications for asylum will continue”, 16 January2002,http://www.publications.parliament.uk/pa/ld200102/ldhansrd/vo020116/text/20116-03.htm

 

 

“The Minister of State, Home Office (Baroness Scotland of Asthal) In January 2002 my right honourable friend the Home Secretary announced the temporary suspension of removals of failed asylum seekers to Zimbabwe. This was in response to concerns at that time about the serious deterioration in the situation in Zimbabwe in the run-up to the presidential election held in March that year. We did not regard it as unsafe to return failed asylum seekers to Zimbabwe, but in view of the turbulent political conditions we considered that it would be appropriate not to enforce returns at that time……While there has not been any improvement in conditions in Zimbabwe since enforced removal of failed asylum seekers was suspended, the proportion of claimants whose claims are not well founded has increased markedly over the period of the suspension. It is clear that the absence of enforced returns increasingly acts as a pull factor for Zimbabweans, and for others posing as Zimbabweans, who do not need international protection but none the less make asylum claims confident that even when unsuccessful they will not be forcibly removed. This is a misuse of the asylum system. We are therefore today bringing our policy on returns of failed Zimbabwean asylum seekers into line with that on every other country and ending the temporary suspension of enforced returns of failed Zimbabwean asylum seekers”, 16 November 2004,

 

http://hansard.millbanksystems.com/written_statements/2004/nov/16/zimbabwe-asylum-seekers

 

The earliest country guidance case on Zimbabwe is SM and Others (MDC – internal flight – risk categories) Zimbabwe CG [2005] UKIAT 00100, which became country guidance on 12 May 2005.  SM was heard in the wake of the Secretary of State’s decision in November 2004 to resume enforced removals to Zimbabwe, which had been suspended since the beginning of 2002.

 

“Baroness Scotland of Asthal: My right honourable friend the Secretary of State for the Home Department (Charles Clarke) has made the following Written Ministerial Statement. On 27 June I made a Statement on the return of failed asylum seekers to Zimbabwe and on 6 July I updated the House on that issue. I would like to provide a further update on returns to Zimbabwe.  Our policy on enforcing the return of failed asylum seekers to Zimbabwe has not changed. We remain of the view that the correct way to operate a fair but credible asylum system is to consider each asylum claim on its individual merits, to grant protection to those who need it, and to seek to remove those who do not and who have no other basis of stay in the country, and who will not leave voluntarily. This is true of all claims, whatever the nationality of the claimant.  The courts have set a hearing on 4 August to consider the evidence provided by the Refugee Legal Centre relating to the treatment of failed asylum seekers upon their return to Zimbabwe. We welcome the opportunity this will provide for all the objective information relating to their treatment to be assessed. Pending the 4 August hearing, out of respect and courtesy to the clearly expressed wishes of the court, we have agreed not to enforce the removal of Zimbabwean failed asylum seekers to Zimbabwe.  This Government continue to have grave concerns about the human rights situation in Zimbabwe, and continue to press for an end to abuses. We will continue to provide protection through the asylum system for Zimbabweans with a well founded fear of persecution”,18 July 2005

http://www.publications.parliament.uk/pa/ld200506/ldhansrd/vo050718/text/50718-07.htm

Following a number of judicial reviews in the case of persons who had been detained for removal to Zimbabwe, the Secretary of State agreed in July 2005 to suspend removals to that country, pending a “lead” judicial review hearing.  On 18 October 2005 the Asylum and Immigration Tribunal gave country guidance in the determination known as AA (Involuntary returns to Zimbabwe) Zimbabwe CG [2005] UKAIT 00144.

 

“Mr. McNulty: …….As I explained in my statement on 14 December 2005, Official Report, column 134WS, the recent Asylum and Immigration Tribunal determination did not find that Zimbabwe generally was unsafe for failed asylum seekers to return to or that voluntary returnees are at risk, only that the method by which we were at that time enforcing returns put enforced returnees at risk. As a consequence, we will not enforce the return of failed asylum seekers to Zimbabwe until we have addressed  the concerns of the tribunal. In the meantime, voluntary returns to Zimbabwe are possible and are continuing. We therefore expect failed asylum seekers to return voluntarily to Zimbabwe and will assist them in doing so through the International Organisation for Migration (IOM)”, 16 January 2006,

http://www.publications.parliament.uk/pa/cm200506/cmhansrd/vo060116/text/60116w57.htm

“Tony Mcnulty, On 12 April the Court of Appeal allowed our appeal against two determinations of the Asylum and Immigration Tribunal (AIT). The court found that the Asylum and Immigration Tribunal had erred in its approach to the evidence before it in finding that the particular way we were enforcing returns of failed Zimbabwean asylum seekers to Harare airport put them at risk of mistreatment. The AIT’s determination in that case has therefore been set aside and the AIT will consider the case afresh……….. In line with our original undertaking to the High Court, we will not be enforcing returns to Zimbabwe pending the further hearing the Asylum and Immigration Tribunal is now required to hold. However, we continue to expect those who have exhausted their rights of appeal and been found not to need international protection to leave the UK voluntarily. We can if required assist them in doing so through the International Organization for Migration (IOM)”,20 April 2006https://www.theyworkforyou.com/wms/?id=2006-04-20b.29WS.1

 

AA (Involuntary returns to Zimbabwe) Zimbabwe CG [2005] UKAIT 00144 ceased to be country guidance on 2 August 2006 on the publication of AA (Risk for involuntary returnees) Zimbabwe CG [2006] UKAIT 00061 (“AA No 2”).   AA (Involuntary returns to Zimbabwe) Zimbabwe [2005] UKAIT 00144 CG (“AA(1)”) was found by the Court of Appeal in AA & LK [2006] EWCA Civ 401 to be legally flawed in its approach to the assessment of the evidence.. The reconsideration  in AA No2 had come before the Tribunal by order of the Court of Appeal (AA [2006] EWCA Civ 401).

 

OM (AA(1) wrong in law) Zimbabwe CG [2006] UKAIT 00077 confirmed that country guidance stands until it is replaced or found to be wrong in law. It will not be appropriate to grant an adjournment on the grounds that a party is seeking to challenge a relevant country guidance case in the higher courts. OM also confirmed that AA No.1 was found by the Court of Appeal to be legally flawed in its approach to the assessment of the evidence.

 

Although the appeal in AA No 2 was remitted to the Tribunal by the Court of Appeal, its status as country guidance, together with that of SM, was reaffirmed by the Tribunal in HS (Returning asylum seekers) Zimbabwe CG [2007] UKAIT 00094, which became country guidance on 29 November 2007. In this determination the Tribunal  in HS reconsidered the country guidance given in AA (Risk for involuntary returnees) Zimbabwe CG [2006] UKAIT 00061 in the light of the judgment of the Court of Appeal in AA (Zimbabwe) v SSHD [2007] EWCA Civ 149 and the additional evidence the parties have chosen to submit.

 

The hearing in RN (Returnees) Zimbabwe CG [2008] UKAIT 00083 began on 1 September 2008, in the immediate aftermath of the atrocities and other widespread violence that had characterised the period around the second round of presidential elections in Zimbabwe in the middle of that year. The Tribunal at several points emphasised the need to make an individualised assessment of risk on return and that, as Elias LJ has subsequently held in TM (Zimbabwe) [2010] EWCA Civ 916, “The fact that an asylum seeker falls into one or more of the enhanced risk categories is not of itself sufficient to justify the grant of asylum”.

 

“Mr. Woolas: The court judgment on 19 November 2008 found that there is no prohibition to removing people who have no right to be here to Zimbabwe. However, the policy of Her Majesty’s Government is that we will always take account of the political and humanitarian factors before doing so. My right hon. Friend the Home Secretary announced in September 2006 that we would be halting enforced returns to Zimbabwe and we are not currently enforcing the return of Zimbabwean nationals”, 6 May 2009

http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090505/text/90505w0008.htm

The country guidance case  of  RS and Others (Zimbabwe – AIDS) Zimbabwe CG [2010] UKUT 363 (IAC) was added on 14 October 2010.

 

The  judgment of the Court of Appeal in RT (Zimbabwe) [2010] EWCA Civ 1285 came next.

 

RS and Others(Zimbabwe – AIDS) Zimbabwe CG [2010] UKUT 00363 dealt with the return to Zimbabwe of a Zimbabwean diagnosed with HIV/AIDS.

 

“Enforced returns to the country were suspended in September 2006 because the unstable political situation in the country meant that the safety of individuals could not be guaranteed. But since the formation of the Inclusive Government in 2009, the country is now considered stable enough to receive returnees. This means that all Zimbabweans living in the UK illegally now face enforced removal. Damian Green, minister for immigration said: ‘We have today announced the resumption of enforced returns to Zimbabwe for failed asylum seekers judged by the independent courts to have no right to remain in the UK.‘This decision reflects the improved stability in Zimbabwe since 2009 and the UK court’s view that not all Zimbabweans are in need of international protection.‘Those facing return will join the hundreds who have returned voluntarily, responding to calls by Zimbabwean Prime Minister Morgan Tsvangirai to return home and help rebuild their country”, 14 October 2010

https://www.gov.uk/government/news/enforced-returns-to-zimbabwe-will-resume

 

EM and others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC) replaced RN (Returnees) Zimbabwe CG [2008] UKAIT 00083.    In EM,  the Upper Tribunal  considered the situation in Zimbabwe in terms of the then current political position and related protection issues, in order to give country guidance, some two years after the appearance of the determination in RN (Returnees). EM confirmed that the country guidance regarding risk at the airport continued to be as set out in HS (Returning asylum seekers) Zimbabwe [2007] UKAIT 00094, read with the findings on that issue in SM and Others (MDC – internal flight – risk categories) Zimbabwe CG [2005] UKIAT 00100 and AA (Risk for involuntary returnees) Zimbabwe CG [2006] UKAIT 00061.

 

CM and JG in the 2011 Upper Tribunal case  sought permission to appeal to the Court of Appeal. The principal issue of concern before the Court of Appeal was the impact on the individual appeals and the Country Guidance issued in the appeals of data relating to assessment of risk in Zimbabwe available in January 2011 that had not been disclosed to the Tribunal or the claimants. On 13 June 2012, before the appeal had either proceeded to a substantive hearing or the process of further disclosure had been completed, the parties agreed that the Secretary of State had failed to comply with its disclosure obligations. A consent order was drawn up with an agreed statement of reasons that the appeals be allowed and remitted to the Upper Tribunal for re-determination in the light of a number of issues of law identified in the schedule to the order. As the appeals had been allowed, the Tribunal’s decision in EM could no longer stand as Country Guidance. The position was therefore that the last Country Guidance issued about generic risk to those not loyal to Zanu-PF was RN in 2008. This consequence was noted by the Supreme Court when it considered the appeal on a point of law in the case of RT (Zimbabwe) [2012] UKSC 38.  Judges of both immigration chambers were  therefore left to determine future Zimbabwe appeals from the starting point of RN. The Tribunal’s decision in EM remained on the Upper Tribunal  website as a reported case albeit with the warning that the Court of Appeal had remitted the case for re-determination.

 

LZ (homosexuals) Zimbabwe CG [2011] UKUT 00487   considered the issue of risk on return for  homosexuals to Zimbabwe.

 

“5.1 The enforced return of failed asylum seekers to Zimbabwe was suspended in September 2006 pending the outcome of a country guidance case due to be heard by the courts at that time. The courts subsequently found on more than one occasion that that not all Zimbabweans are in need of international protection. The suspension of enforced returns was however extended for foreign policy reasons, and in particular HM Government’s wish not to destabilise progress on implementation of the Global Political Agreement.

5.2 Ministers announced on 14 October 2010 that UK Border Agency would be resuming enforced returns of failed asylum seekers to Zimbabwe after the IAC had issued its judgment in the further country guidance case of EM & others. There is therefore no longer any policy which precludes the enforced return to Zimbabwe of failed asylum seekers who have no legal basis of stay in the United Kingdom”,  Operational Guidance Note: Zimbabwe (v8 Issued April 2011).

“5.1 There is no policy which precludes the enforced return to Zimbabwe of failed asylum seekers who have no legal basis of stay in the United Kingdom”, Operational Guidance Note: Zimbabwe (v9.0 April 2012).

 

(EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 00059(IAC), held that the Country Guidance given by the Tribunal in EM on the position in Zimbabwe as at the end of January 2011 was not vitiated in any respect by the use made of anonymous evidence from certain sources in the Secretary of State’s Fact Finding Mission report of 2010. The Tribunal was entitled to find that there had been a durable change since RN (Returnees) Zimbabwe CG [2008] UKAIT 00083. The  Upper Tribunal in CM stated that the Country Guidance in EM did not require to be amended, as regards the position at that time. CM clarified that the only change to the EM Country Guidance that it was  necessary to make as regards the position as at the end of January 2011 arose  from the judgments in RT (Zimbabwe) [2012] UKSC 38.  The Upper Tribunal in CM then went ahead  and re-stated the EM Country Guidance.

 

NN (Teachers: Matabeleland/Bulawayo: risk) Zimbabwe CG [2013] UKUT 00198, then followed,  stating that  the  “geographical filter” identified in EM and Others and confirmed more recently in CM (EM country guidance; disclosure) Zimbabwe is equally applicable to teachers.

 

“6.1 There is no policy which precludes the enforced return to Zimbabwe of failed asylum seekers who have no legal basis of stay in the United Kingdom.

6.2 Factors that affect the practicality of return such as the difficulty or otherwise of obtaining a travel document should not be taken into account when considering the merits of an asylum or human rights claim. Where the claim includes dependent family members their situation on return should however be considered in line with the Immigration Rules.

6.3 Any medical conditions put forward by the person as a reason not to remove them which have not previously been considered must be fully investigated against the background of the latest available country of origin information and the specific facts of the case; and a decision made as to whether removal remains the correct course of action, in accordance with chapter 53.8 of the Enforcement Instructions and Guidance.

6.4 Zimbabwean nationals may return voluntarily to any region of Zimbabwe at any time in one of three ways. Leaving the UK:

(a) by themselves, where the applicant makes their own arrangements to leave the UK,

(b) through the voluntary departure procedure, arranged through the UK Immigration service, or

(c) under one of the assisted voluntary return (AVR) schemes”, Operational Guidance Note: Zimbabwe (v12.0 November 2013)

 

CONCLUSION

 

The Home Office position as regards enforced returns to Zimbabwe fluctuated over the years depending upon the country conditions in Zimbabwe, foreign policy reasons and further  having regard to the direction caselaw was  flowing  at a particular  time.

 

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

 

Having regard however to the Home Office Country Returns Guide, with the latest issued on 7 December 2016,  it appears that those who  have no passports  or have expired passports and do not consent to voluntary  return to Zimbabwe are  currently irremovable. The Country Returns Guide  issued on 7 December 2016 as it  relates to Zimbabwe  provides as follows:

 

“The embassy will only issue travel document where the individual is returning voluntarily and has signed a disclaimer in their presence to that effect”.   https://www.gov.uk/government/publications/country-returns-guide

 

The position however for Zimbabweans without a legal basis of stay  but in relation to whom the Home office hold valid and current Zimbabwean passports,  for example following a failed leave application,  is that  they remain  liable for removal or deportation. This is  because possession  of such a document precludes the need for the home office to approach the Zimbabwean embassy in relation to the returnee to request the  issue  of  an emergency  travel document. Cases such as Babbage and JM(Zimbabwe) are therefore likely to be of little or no use in such circumstances having regard to  the facts and issues raised in those cases.