Now that Mugabe has fallen what now for UK based Zimbabwean asylum claimants?

On  21 November 2017, Robert Gabriel Mugabe resigned as the President of Zimbabwe, after maintaining a grip on power  for 37 years.

 

Following that resignation , the  burning  questions relating to  the future  political democratic  processes and upholding of the rule of law in Zimbabwe  are matters evidently up for debate,  perhaps  to become  clearer as time unfolds.

 

For now the biting question for UK based asylum claimants is this: how  does Mugabe’s  downfall impact upon  UK based Zimbabwean asylum claimants and failed asylum seekers?

 

Let’s rewind a little, revisiting the past week as a starting point.

 

On 15 November 2017, there was a military intervention in Zimbabwe  led by General Constantine  Chiwenga.  This intervention also resulted  in Mugabe  being placed under house arrest.  On 18 November 2017, the  Zimbabwean populace took to the streets in demonstration- a demonstration initially instigated by the war veterans in an anti-Mugabe stance.  This was a mass protest calling for Mugabe to step down.  The mass protest was  a sight to behold and like no other held  in Zimbabwe.  Civilians  were seen  high fiving  Zimbabwean soldiers,  with some taking selfies  with members of the army.  There was evident  hero worshiping of  Chiwenga  and his  boys. They were seen as the “liberators”;  the harbingers of freedom from  the persecutory dictatorship  of Mugabe.   No  attempt was made  to stop the mass protest.  ZANU(PF) leaders and  their supporters, opposition  leaders and their supporters, political activists and their supporters as well as ordinary citizens  intermingled, stood as one  clamouring  for Mugabe’s resignation.  The  police,  ZANU(PF) youths  or war veterans did not hinder the  masses on that day.

 

Those in Zimbabwe (as well as the UK) who had never dared say a word against Mugabe before 15 November 2017, became politically vocal overnight  via social media. The Zimbabwean masses were given carte blanc to be as expressive politically, without violence, but  with one goal in mind: Mugabe’s downfall.

 

WHAT NEXT AFTER MUGABE’S DOWNFALL?

 

For UK based Zimbabwean claimants,  in particular those  advancing  political based claims,  relevant questions include the following:

 

• Who or what are asylum claimants/appellants originating from Zimbabwe now saying they fear after 21 November 2017?

• In the light of current events,  can that fear be considered objectively well founded?

• Will such claimants be able to argue that they will be at risk on return to Zimbabwe after 21 November 2017?

The relevant events of November 2017 are  summarised above. Will  it then be possible, in light of  these recent events, for  a Zimbabwean  asylum claimant to sustain  a viable  asylum claim/appeal on the basis of a fear  of  the Mugabe regime when he  is no longer the president of Zimbabwe?  The foundation  of most asylum claims usually run along the lines of a fear of the Mugabe regime due to political reasons.  ZANU(PF) members/youths  and supporters including  the war veterans, the CIO  as well as the army and police  propped up Mugabe’s power.  But now with  those  same  proxies  having   in the last week  shown  open revulsion and rejection of Mugabe, who exactly is it that a claimant  will state they fear on return to Zimbabwe………. and why?

 

When advancing an asylum claim after 21 November 2017, the situation following  the  ushering in of a new president in Zimbabwe  and any repressive methods he may use in future to continue in power,  will need to be evidenced. The violent history  of ZANU(PF)  under Mugabe is not in doubt. Nonetheless,  there may be  a possibility of real  effective change on the horizon.

 

If the evidence shows that  not much has changed in practice and that  the same machinery is still being  used to maintain and continue  a  violent repressive   regime under the guise of  a new leader, then  some latitude exists in seeking to establish  that  a credible  claimant has  a well founded fear of persecution on return to Zimbabwe; it may prove  a difficult argument   but worth advancing.

 

On the other hand, if the new President  effects tangible and visible change,  it may ultimately  be  difficult to  sustain a viable asylum claim from a UK based  Zimbabwean claimant.

 

The following issues have been brought  to the fore  in light of the changes in  Zimbabwe:

 

• Possible activation of the Home Office safe return review policy: Cessation/revocation of refugee status in relation to those granted such leave?

• Possible implications for protest/opposition based activists  in the UK

• An increase to enforced removals to Zimbabwe?

• Ploughing ahead with an asylum claim/appeal despite the changes?

• Other options

 

POSSIBLE ACTIVATION OF THE HOME OFFICE  SAFE RETURN REVIEW POLICY- CESSATION/REVOCATION OF REFUGEE STATUS?

The UK government has granted limited  refugee leave to a substantial  number of Zimbabwean nationals  residing in the UK.  Others  have  obtained settled status as  refugees following completion of the 5year probationary period.

 

In light of the changes in Zimbabwe, a relevant question  is  how  the Home Office  may  consider  applications  from Zimbabwean nationals applying for settlement following  the 5year period. Also relevant is whether the Home Office  can review a grant of refugee status at any juncture.

 

The relevant Home Office policy guidance is Refugee leave  which the Home Office published on 9 March 2017. This states  as follows among other issues:

 

“When someone with limited refugee leave applies to extend that leave a safe return review will be carried out. Where they no longer need protection they will not qualify for further refugee leave or settlement protection and will need to apply to stay on another basis or leave the UK. All those granted refugee leave may also have their case reviewed in light of any criminality and such leave may be revoked if they are no longer entitled to protection.

 

“All those who apply for settlement protection after completing the appropriate probationary period of limited leave will be subject to a safe return review with reference to the country situation at the date the application is considered”.

 

……….

 

Policy intention

 

The policy objective in granting refugee leave is primarily to provide protection and a period of limited leave to those who need it. The policy is designed to:

 

…………

 

ensure that safe return reviews are carried out so that protection is provided for as long as it is needed, but make clear that those who no longer need protection will need to apply to stay on another basis or leave the UK

 

……………….

Duration and conditions of leave

 

Those who qualify for refugee status under paragraph 334 of the Immigration Rules should normally be granted limited leave to enter or remain under paragraph 339Q. This will normally include the following period of leave and associated benefits:

 

•  an initial period of 5 years’ limited leave

•  immediate and unrestricted access to the labour market, recourse to public funds and the opportunity to apply for a refugee integration loan

•  a 5 year route to settlement for those who continue to need protection

•  no requirement to demonstrate a knowledge of language and life in the UK when applying for settlement

…………….

Settlement

This section applies to all those who are applying for settlement protection. Those granted refugee status will be eligible to apply for settlement (also referred to as indefinite leave to remain) once they have completed the required probationary period of 5 years’ limited leave.

…………

Safe return review

All those who apply for settlement protection after completing the appropriate probationary period of limited leave will be subject to a safe return review with reference to the country situation at the date the application is considered. Those who still need protection at that point will normally qualify for settlement. Caseworkers must refer to the Settlement Protection instruction for more detailed guidance on considering such applications.

A person’s case may also be reviewed at any point in the process either when triggered by their actions, for example, they are convicted of a serious crime, or in light of a significant and non-temporary change in conditions in their country of origin such that they no longer need protection. Refugee leave may be revoked where someone no longer needs, is no longer entitled to protection due to their actions, or should not have been given protection under the Refugee Convention. See Revocation of refugee status for further guidance”.

What is evident from the above policy guidance is this:

 

• It is those with limited refugee leave applying  to extend that leave  who will have a safe return review  carried out.

• After the 5year probationary period, safe return reviews are conducted with reference to the country situation at the date the application is considered. Those who still need protection at that point will normally qualify for settlement. For applications for further leave to remain considered after 21 November 2017, the Home Office will therefore have particular  regard to the  current situation in Zimbabwe.

• A person’s case may also be reviewed at any point in the process either when triggered by their actions, or for example in light of a significant and non-temporary change in conditions in their country of origin such that they no longer need protection. There seems to have been a significant change in Zimbabwe however it is arguable that  it appears too soon to state that non- temporary changes  in conditions have occurred, more so  having regard to the history of violence attached to those involved in the removal of Mugabe- ie the military,  ZANU(PF) members/youths and war veterans.

• Those who no longer need protection will need to apply to stay on another basis or leave the UK

When protection need ceases to apply:

 

The cessation clauses set out in Article 1C(1) to (6) of the Refugee Convention describe how the Convention will cease to apply  to a person who has previously been recognised as a refugee. The person can therefore no longer be regarded as a refugee.

 

Paragraph 339A (i)-(vi) of the Immigration Rules provides for a person’s refugee status to be revoked where they have ceased to be a refugee. These provisions mirror the cessation clauses of Article 1C of the Refugee Convention and implement the requirements of Article 11(1)(a)-(d) of the EU Qualification Directive.

 

Paragraph 339A(i) – (iv) of the Immigration Rules reflects a change in the refugee’s personal situation and Paragraph 339A (v) and (vi) reflects changes in the country situation and/or the refugee’s personal situation. In considering the country situation, Article 11 of the Qualification Directive requires Member States to have regard to whether the change in circumstances is of such a significant and non-temporary nature that the fear of persecution can no longer be regarded as well-founded.

 

The cessation clauses:

 

The circumstances in which refugee status may be taken to have ceased, as set out in Article 1C of the Refugee Convention, are as follows:

 

• voluntary re-availment of national protection: an individual voluntarily chooses to re-avail themselves of the protection of the country of their nationality:- This is where a refugee chooses to return to their own country and/or to obtain and/or use a passport issued by that country. Where a refugee has obtained a passport and travelled to their country of origin or former habitual residence, the circumstances of the case must be reviewed to consider whether refugee status should be revoked. However, home office caseworkers must take into account any explanation provided by the individual and any exceptional, compassionate circumstances that may render revocation inappropriate.

• voluntary re-acquisition of lost nationality: a refugee, having lost (or been stripped of) their nationality of the country in respect of which they were recognised as having a well-founded fear of persecution, voluntarily re-acquires that nationality.

• voluntary acquisition of a new nationality and protection: a refugee acquires a new nationality and enjoys the protection of the country of their new nationality and has no fear of persecution in that country

• voluntary re-establishment in the country where persecution was feared: a refugee travels to and re-establishes themselves in the country from which protection was sought.

• nationals whose reasons for becoming a refugee have ceased to exist because: (a)the circumstances that led to refugee status being granted have ceased to exist and the refugee can no longer continue to refuse the protection of their own country of nationality; (b)protection has now become available where it once was not

• stateless persons whose reasons for becoming a refugee have ceased to exist: a stateless person with refugee status may be able to return to their country of former habitual residence because the circumstances in which they were recognised as a refugee have ceased to exist and they have a right to reside there.

Where a cessation clause applies, such that an individual no longer needs protection, their refugee status will be revoked under Paragraph 339A (i) to (vi) of the Immigration Rules.

 

Change in circumstances:

 

Cases where application of paragraph 339A(v)-(vi) of the Rules may be appropriate must be subject to an assessment on their individual merits. Home Office caseworkers must also consider whether compelling reasons have been provided by the refugee as to why they are refusing to re-avail themselves of protection of their country of nationality or former habitual residence.

 

Changes in country situation refers to changes in the country situation that are significant and non-temporary such that a fear of persecution can no longer be regarded as well-founded. The overthrow of one political party in favour of another might only be transitory or the change in regime may not mean that an individual is no longer at risk of persecution. The changes must be such that the reasons for becoming a refugee have ceased to exist and there are no other reasons for an individual to fear return there.

 

Revocation of refugee leave:

 

Paragraph 339B of the Immigration Rules covers curtailment or cancellation of leave when refugee status is revoked.

 

Paragraph 339BA of the Immigration Rules implements Article 38 of the Procedures Directive. This states that where revocation is being considered, the refugee should be informed in writing that their grant of asylum is being reconsidered and the reasons for the reconsideration. It also provides that the person should be given the opportunity to submit, in a personal interview or in a written statement, reasons why their refugee status should not be revoked.

 

Paragraph 339BB of the Immigration Rules sets out the circumstances when the procedure in paragraph 339BA does not need to be followed; and Paragraph 339BC confirms that the procedure can be carried out when the person is outside the UK.

 

The  Immigration Rules  entitle UNHCR to present their views when consideration is being given to the revocation of refugee status.

 

Section 76 of the 2002 Act provides the power to revoke indefinite leave to enter or remain in certain circumstances. Section 76(1) applies where someone is liable to deportation but cannot be deported for legal reasons; Section 76(2) applies where the leave was obtained by deception. These sections apply to anyone with indefinite leave regardless of the reason why it was originally granted. Section 76(3) applies where someone has ceased to be a refugee as a result of voluntary actions that mean they no longer need protection. This only applies to a refugee and will most likely accompany a decision to revoke that status.

 

There is no provision to revoke status under the Refugee Convention itself. Articles 1C and 1F simply provide that the Refugee Convention no longer applies when the circumstances set out in those Articles are met.

 

The process for revoking refugee status and removing or varying their leave includes contact with the refugee normally in writing, and providing the United Nations High Commissioner for Refugees (UNHCR) with the opportunity to present their views on the case. Action to revoke refugee status should normally be carried out by the Status Review Unit. However, if there is criminality involved or there are security issues, Criminal Casework or the Special Cases Unit will be involved in the process.

 

Grounds for revoking refugee status:

 

Refugee status may be revoked for one or more of the reasons set out in the Immigration Rules. If more than one of the following provisions applies, then revocation on all grounds must be considered and addressed as part of the decision:

 

• Refugee Convention ceases to apply (Paragraph 339A(i)-(vi))

• exclusion from the Refugee Convention (Paragraph 339AA)

• misrepresentation of facts decisive to the grant of refugee status (Paragraph 339AB)

• danger to the UK (Paragraph 339AC(i)-(ii))

Where a person acquires British citizenship, their refugee status is automatically revoked in accordance with Paragraph 339A (iii) of the Immigration Rules upon acquisition of that status (they have acquired a new nationality and enjoy the protection of the country of their new nationality). Therefore, revocation does not apply in such cases and there is no requirement to obtain information from the individual as to why they should not have their refugee status revoked. It is also unnecessary to contact UNHCR for comment in these cases.

 

Where a former refugee, who has been naturalised, is found to have obtained refugee status by deception or where they have engaged in conduct which would have brought them within the scope of the exclusion clauses, then the Home Office may review that person’s continuing entitlement to British Citizenship.

 

Triggers that lead to a review of refugee status:

 

Where someone has refugee status, revocation action can be taken at any time if there is sufficient evidence to justify such action. This could be:

 

• during the initial period of limited leave

• after their leave has expired pending a decision on any settlement application

• whilst the refugee has indefinite leave to remain (ILR)

The following is not an exhaustive list of triggers:

 

• Return to country of origin or obtaining a passport:-This will usually indicate voluntary re-availment and may lead to revocation under Paragraph 339A(i)-(vi).

• Reasons for the grant of asylum no longer exist:- A change in personal circumstances or country situation may mean that the reasons that led to the grant of asylum no longer apply. Any change must be significant and non-temporary.  (Paragraph 339A(v)-(vi).

• Misrepresentation:- Material facts were misrepresented or omitted and this was decisive in the decision to grant asylum. See Misrepresentation of facts decisive to the grant of refugee status (Paragraph 339AB).

• Exclusion:- Evidence emerges after a grant of status that indicates the person should have been or is excluded from the Refugee Convention. See Exclusion from the Refugee Convention (Paragraph 339AA) and Danger to the UK (Paragraph 339AC(i)-(ii).

• Criminality:- Irrespective of the length of the sentence, a review of refugee status should be conducted in most cases where there are criminality issues. Criminality does not amount to a change of personal circumstances under Paragraphs 339A (i-iv), but it is possible that a review may highlight that protection is no longer needed.

• Returning residents:- Where a refugee has been outside the UK for more than 2 years their refugee status should be reviewed before any leave is reinstated. Whilst refugee status can only lapse in certain circumstances any accompanying leave will lapse if a refugee fails to comply with the conditions of that leave. Those outside the UK for more than 2 years will be required to apply for a Returning Residents visa to return and must apply using the appropriate form, paying the relevant fee.

• Extremist behaviour:- Where there is any evidence that a refugee or their dependants have engaged in unacceptable behaviours (whether in the UK or abroad) considered not conducive to the public good or has acted in a way which undermines British values, their status must be reviewed.

View from UNHCR on the proposal to revoke refugee status:

 

It will normally be appropriate to give the UNHCR an opportunity to present their views on individual cases before a final decision is taken. This reflects the requirements in Paragraph 358C of the Immigration Rules. UNHCR should normally be contacted after the individual concerned has had an opportunity to comment so that UNHCR can take the representations of the refugee into account in preparing their view of the case.

 

Letter ASL.3835 (Revocation Cases: Letter to UNHCR), informs the  UNHCR of the intention to revoke the refugee status of the individual concerned and why the refugee’s response to ASL.3831 has not dissuaded  the Secretary  of State  from taking such action together with the ASL.3831 and any representations made by the refugee and/or their representative.

 

Although there is no requirement to formally respond to representations from UNHCR, caseworkers must take their comments into account as part of the decision on whether to proceed with revocation and provide UNHCR with a copy of the final decision.

 

POSSIBLE IMPLICATIONS FOR PROTEST /OPPOSITION  BASED ACTIVISTS IN THE UK 

 

Where the sole objective was not simply advocating for Mugabe’s removal from power but a curbing, monitoring  and speaking out against  human  rights abuses by the Zimbabwean government, UK based  civil society and human rights groups  will know that they still have a job to do.

 

What however must be evident in practice, is  the real focus of  any such protests/activism after 21 November  2017. Genuine activists in the UK  rely upon the vehicle of such organisations through active participation  to  express themselves, enabling them to speak out   against human rights abuses.

 

It is a fact that some such activists  have no leave to remain  however some do and some are even British citizens. For those in fear of return to Zimbabwe as a result of their  activism,  there will be a need to obtain  letters of support from the  relevant organisations  to forward to  the Home Office,  evidencing the extent of their activities including why it is such an activist  will be at risk on return.

 

Case law and relevant current  background  evidence  is taken into account by the Home Office and Tribunal  in the consideration  of  UK based political activities and as such relevantly, when advancing claims from such claimants,  the following case law considerations  will become relevant:

 

YB (Eritrea) v. Secretary of State for the Home Department, [2008] EWCA Civ 360, states:

 

 

“18.As has been seen (§7 above), the tribunal, while accepting that the appellant’s political activity in this country was genuine, were not prepared to accept in the absence of positive evidence that the Eritrean authorities had “the means and the inclination” to monitor such activities as a demonstration outside their embassy, or that they would be able to identify the appellant from photographs of the demonstration. In my judgment, and without disrespect to what is a specialist tribunal,this is a finding which risks losing contact with reality. 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 in public against the regime but have informers among expatriate oppositionist organisations 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. If, for example, any information reaching the embassy is likely to be that the claimant identified in a photograph is a hanger-on with no real commitment to the oppositionist cause, that will go directly to the issue flagged up by art 4(3)(d) of the Directive”.

 

 

BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC), provides in its Headnote:

 

“4.The following are relevant factors to be considered when assessing risk on return having regard to sur place activities:

 

(i) Nature of sur place activity

Theme of demonstrations – what do the demonstrators want (e.g. reform of the regime through to its violent overthrow); how will they be characterised by the regime?

Role in demonstrations and political profile – can the person be described as a leader; mobiliser (e.g. addressing the crowd), organiser (e.g. leading the chanting); or simply a member of the crowd; if the latter is he active or passive (e.g. does he carry a banner); what is his motive, and is this relevant to the profile he will have in the eyes of the regime>

Extent of participation – has the person attended one or two demonstrations or is he a regular participant?

Publicity attracted – has a demonstration attracted media coverage in the United Kingdom or the home country; nature of that publicity (quality of images; outlets where stories appear etc)?

 

(ii) Identification risk

Surveillance of demonstrators – assuming the regime aims to identify demonstrators against it how does it do so, through, filming them, having agents who mingle in the crowd, reviewing images/recordings of demonstrations etc?

Regime’s capacity to identify individuals – does the regime have advanced technology (e.g. for facial recognition); does it allocate human resources to fit names to faces in the crowd?

 

(iii) Factors triggering inquiry/action on return

Profile – is the person known as a committed opponent or someone with a significant political profile; does he fall within a category which the regime regards as especially objectionable?

Immigration history – how did the person leave the country (illegally; type of visa); where has the person been when abroad; is the timing and method of return more likely to lead to inquiry and/or being detained for more than a short period and ill-treated (overstayer; forced return)?

 

(iv) Consequences of identification

Is there differentiation between demonstrators depending on the level of their political profile adverse to the regime?

 

(v) Identification risk on return

Matching identification to person – if a person is identified is that information systematically stored and used; are border posts geared to the task?

As regards MDC activities in the UK, current country guidance caselaw, CM (EM country guidance; disclosure) Zimbabwe, heard  in October 2012 and promulgated January 2013, (which modified the Country Guidance in of EM & others (Returnees) Zimbabwe, heard October 2010/January 2011 and promulgated March 2011), the Upper Tribunal concluded that as a general matter, there is significantly less politically motivated violence in Zimbabwe compared with the situation considered by the AIT in RN (Returnees) Zimbabwe, heard September/October 2008 and promulgated November 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 [para 215 (1)].  It is likely that the Tribunal may promulgate new caselaw  following the events of 21 November 2017.

 

In order to show a well founded fear of persecution/risk on return, much depends too on  what the  sourced current background evidence  will throw up. Will that evidence show for example that after 21 November 2017,  political activists  in Zimbabwe  who express themselves through demonstrations,  marches, protests, meetings, writings, blogs  or via other  social media, are in fact subjected to repression and violence  in Zimbabwe?  If #Tajamuka and  #this flag movement for example decide to continue in activism, a claimant would need to show by way of  evidence that members and supporters of such organisations  continue  to be  arrested, detained, ill-treated or subject to harsh repressive  laws by the Zimbabwean government.  Will the Zimbabwean government  continue to have an interest in monitoring  UK based activities with a view to arresting or persecuting  returnees? If not,  it becomes more difficult to show that on return,   previous UK based political activities will bring a claimant to the adverse attention of the Government  in Zimbabwe.

 

INCREASED ENFORCED  REMOVALS TO ZIMBABWE?

 

The following blog posts  in particular  consider the  problems faced by the Home Office in enforcing  returns to Zimbabwe for those  without valid passports:

 

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

• Valid Passport with the Home Office? Zimbabweans with no claims still very much removable from the UK

• Refusing to return to Zimbabwe: Court of Appeal confirms Home Office cannot compel a non-consenting returnee to lie to the Zimbabwean Embassy

Whilst there is no Home Office policy against enforced removals to Zimbabwe,  the UK government  has  been unable to remove  un-documented Zimbabwe  without their voluntary  consent. The reason for the dilemma faced by the UK government stems   from the position of the Zimbabwean authorities  who do not agree to issue emergency travel  documents  to persons returning involuntarily.

 

The case of JM (Zimbabwe), R (on the application of) v Secretary of State for the Home Department [2016] EWHC 1773 (Admin) (15 July 2016), comes to mind:

 

“43.According to the witness statement of Rachel De Souza, who is the Migration Delivery Officer for Southern and Central Africa, at present – and indeed since Restrictive Measures were installed in 2002 – Zimbabwe requires the returnee’s consent before issuing an ETD in relation to enforced returns. There was some thawing in the relationship between the UK and Zimbabwe in February 2016, and on 16^th March a high-level meeting took place at the British Embassy in Harare. Ms De Souza describes that meeting as “more positive than expected”. There was a discussion about the Defendant’s list of 20 undocumented returnees, including the Claimant, and scans of their expired passports were provided. On 12^th May the Ministry of Foreign Affairs was content to confirm that 18 of the 20 were Zimbabweans, but the Claimant’s name was not included. There may have been an issuing with spelling. The current position is that the Defendant has put the Claimant’s case on hold for the time being, and that the 18 names remain with the Deputy Foreign Minister for his approval of the production of ETDs. Approval, if given, will be a political decision for Zimbabwe and no time-frame can be given.

107.The question arises whether there was any realistic prospect, during the whole of the period under consideration, of the Zimbabwean authorities changing their policy on this issue. During the hearing there was some speculation about a range of possibilities, including the demise of the Zimbabwean President. That will happen one day, but it goes without saying that the temporal framework is uncertain. It almost goes without saying that when he dies no one, including the Defendant, really has any idea whether Zimbabwe’s policy will change, and when. I have carefully examined Ms De Souza’s evidence. It was not until February 2016 that there was even the remotest prospect of a possible change of political heart. The court has been informed that the Defendant is awaiting a political decision in relation to 18 cases, not including this Claimant’s, which decision may never come. I entirely agree with Garnham J, who admittedly did not have the benefit of this evidence of such limited value, that there was no realistic prospect of a change of policy on the part of the Zimbabweans during any part of the period germane to these proceedings. This, to me, seems apparent; and in my view the Defendant cannot cling to threads of speculation and hope”.

Contrary to previous speculations, Mugabe  will not die in  power, however the  current circumstances are that  he has resigned  leaving  open the potential of thawing of the relationship  between the UK Government  and Zimbabwean authorities. A  future change of position on the part of the Zimbabwean government  in this regards might  however not be publicly  announced by either governments.  In such circumstances, where the Zimbabwean government agrees to issue emergency  travel  documents for non consenting Zimbabweans,  more detentions and removals  from the UK might occur:  in practice  however  alert  Zimbabweans residing in the UK  will be quick to take note  where more  and more of their friends and relatives become subject to removal  within a short period of time.

 

PLOUGHING AHEAD WITH AN ASYLUM CLAIM DESPITE THE CHANGES?

Without doubt,   there will be a number of Zimbabwean asylum claimants  who  will  decide to plough ahead   so as have their asylum claims considered by the Home Office or an appeal heard by the immigration Tribunal even after 21 November 2017.

Home Office Caseworker are  required, among other matters,  to  have regard to current available   country information reports   when assessing   asylum claims with a view to reaching decisions. The Tribunal also  have regard to such  report when deciding asylum appeals.

The   relevant  Note for Zimbabwe is  the Country Information and Policy Note Zimbabwe: Opposition to the government , Version 2.0e, January 2017.

This Policy Note will certainly need to be amended/updated to take into account current events in Zimbabwe but that alone would not prevent Home Office decision makers  placing reliance  upon other  more current  reliable , reputable sources to cite  the changes in Zimbabwe .

 

An analysis of the January  2017 Country  information Report is relevant  so as to enable an appreciation of how agents  of the Zimbabwean government have previously  been recorded as having participated in human rights abuses  under Mugabe’s rule  prior to 15 November 2017.  What however needs to  be shown after 21 November 2017  in order for a claim to have some chance of success is that such agents continue to prop up a persecutory  government under new leadership. Such evidence may be difficult to source  until perhaps some time has elapsed.

 

Well prior to  the military intervention,  the Home Office policy Note of 2017 stated as follows in relation to Emmerson Dambudzo Mnangagwa,  who  some say is expected to take over the presidency imminently:

 

“4.3.6 The International Crisis Group report, ‘Zimbabwe: Stranded in Stasis’, published on 29 February 2016, further explained:

‘In December 2014, then Vice President Joice Mujuru was purged and her rival, Emmerson Mnangagwa, elevated………..

‘Mnangagwa has strong ties with key security sector elements and is viewed by many as well positioned to maintain stability and pilot a recovery. Having slowly consolidated his position, he is firmly in charge of government business and depicted as a driving force behind re-engagement and reform. However, his command of party structures is uneven, and his limited popularity nationally and within the party is tarnished by allegations of complicity in human rights violations. His ambition to succeed Mugabe is opposed by several senior cadres, labelled Generation 40 (G40), who represent a younger generation and have put their weight behind the increasingly influential first lady, Grace Mugabe. Her very public role since late 2014 as chair of ZANU-PF’s women’s league has the president’s backing. Factional battles between the two groups intensified in early 2016, leaving Mnangagwa’s position apparently weakened”.

Also referred to below is how  the following  has been referenced in the January 2017 Information Note:

 

• Treatment of demonstrators and the opposition in Zimbabwe

• Political freedom in Zimbabwe

• Actions of the police, CIO, military , ZANU(PF) members,/youths and war veterans in Zimbabwe

What would need to be undertaken in seeking to pursue an asylum claim/appeal is a detailed researched consideration of whether after 21 November 2017 there is documentary evidence indicating that the new President, who will still retain the old machinery apparatus which Mugabe utilised, has gone back to ZANU(PF)’s “old” violent  ways in relation to those opposed  to it.  Relevant background  indicates that the man expected to take up the Presidency  is not a saint. Will he also seek to maintain his power in future by adopting and refining the persecutory tendencies of Mugabe whom he worked with closely for several decades? Mere references to the past may however not be sufficient. Another possibility is that the nature of asylum claims emanating from Zimbabweans in the future may evolve depending on how the new government chooses to treat those opposed to it.

 

What does the current Information Note of January 2017  say about proxies of the state,  demonstrations and treatment of the opposition?

 

Paragraphs 2.2.9; 1.2.1; 1.2.2;  2.2.11; 2.2.12; 2.3.1; 3.1.1; 3.1.4; 7.1.2; 7.1.3 and 7.5.1 provide:

 

• It would be for a person to show why they would be targeted for arrest or abuse on return to Zimbabwe

• Actual or perceived involvement in political opposition activities includes: members or supporters of political parties, protestors, journalists, civil society activists and teachers.

• People who may be considered as proxies of the state include the Zimbabwe National Liberation War Veterans Association (‘the War Veterans’), the Youth Brigades and ZANU-PF members.

• Demonstrations about the government’s mismanagement of the economy are seen by the authorities as politically motivated even though people without strong political views are taking part, many having been inspired by social media groups. The police sometimes use excessive force to disperse demonstrators and people have been arrested under public order offences, but are generally released within a few days, although there have been reports of longer detentions

• As the person’s fear is of persecution or serious harm at the hands of the state or proxies of the state, they will not be able to avail themselves of the protection of the authorities

• While political parties, civil society and the media continue to operate, the government makes it difficult for these groups to function and tightly controls the space within which people can openly express opposition to, or criticism of, the state.

• People who took part in the protests against the government’s management of the economy may have been fired upon, arrested or experienced other heavy-handed treatment by the police during the demonstrations. However, it is not likely that the authorities would have a continuing adverse interest in the person merely because of their presence at a protest. Each case must be considered on its own facts and merits.

• The Freedom House ‘Freedom in the World 2016’ report, published on 14 July 2016, stated: ‘Zimbabweans enjoy some freedom and openness in private discussion, but official monitoring of public gatherings, prosecution of offenses like insulting the president, and the threat of political violence serve as deterrents to unfettered speech.

• ACLED [Armed Conflict Location and Event Data Project], in its Zimbabwe October 2016 update, noted: ‘The number of political violence and protest events increased over the past month in Zimbabwe. The spike in violence is largely due to an increase in the incidence of violence against civilians, which doubled between August and September:

• The USSD report covering events in 2015 stated: ‘ZANU-PF supporters, sometimes with government support or acquiescence, intimidated and abused members of organizations perceived to be associated with other political parties… Although the constitution allows for multiple parties, elements within ZANU-PF and the security forces intimidated and committed abuses against other parties and their supporters and obstructed their activities. In contravention of the law, active members of the police and army openly campaigned for and ran as ZANU-PF candidates in the elections.’

What does the current Information Note of January  2017 say about political freedom in Zimbabwe?

 

Paragraphs 4.4.1 and 4.4.2 state:

 

• The USSD report covering events in 2015 report stated: ‘The constitution and law provide for freedom of association, but the government restricted this right. Although the government did not restrict the formation of political parties or unions, security forces and ZANU-PF supporters continued to interfere with their activities…Organizations generally were free of governmental interference only if the government viewed their activities as apolitical or supportive of ZANU-PF.’

• The report also stated: ‘The constitution provides for freedom of assembly, but the government restricted this right. ‘The Public Order and Security Act requires that organizers notify police of their intention to hold a public gathering–defined as 15 or more individuals–seven days in advance. Failure to do so may result in criminal prosecution as well as civil liability. The law also allows police to prohibit a gathering based on security concerns but requires police to file an affidavit in a magistrates court stating the reasons behind the denial. Although many groups did not seek permits, other groups informed police of their planned events and the police either denied permission or gave no response. ‘Authorities often denied requests by civil society, trade unions, or political parties other than ZANU-PF to hold public events if the agenda conflicted with ZANU-PF policy positions. There were few reports of political rallies interrupted by opposing political parties.’

What does the current Information Note of January  2017  say about the Police in Zimbabwe:

 

Paragraphs 2.2.8; 6.2.4; 6.2.5; 6.2.6; 7.1.18 and 7.2.2 provide:

 

 

• The Zimbabwe Police Force is highly politicised and there are reports of people being arrested for political reasons but most are held for one or two days and then released. However, there are reports of some opponents being tortured or otherwise abused in detention. ZANU-PF critics are prosecuted for insulting the president and people are arrested for online activities perceived as inciting public violence. Politically motivated violence does occur, but tends to fluctuate, often peaking, in particular, around elections (both local and national) (see curbs on freedom of expression, including state sponsored violence, arrest and detention).

• In contravention of the law, active members of the police…openly campaigned for and ran as ZANU-PF candidates in the elections.

• The DFAT, in their 2016 report noted that ‘reliable sources inform DFAT that the ZRP is a highly partisan force’: ‘Top police commanders are appointed, and expected to support ZANU-PF; political affiliation can impact on the effectiveness of police investigations, particularly in cases involving criminal and political violence; and ZRP personnel regularly use the POSA to restrict freedom of assembly and expression in support of ZANU-PF interests.’

• The same source also noted, ‘There are regular and credible reports of ZRP personnel using excessive force to disperse demonstrators and when making arrests …There are regular and credible reports of ZRP personnel using excessive force to disperse demonstrators and when making arrests.’

• Human Rights Watch summarised the situation in 2016 as follows, ‘Police abuse increased, and there was excessive use of force to crush dissent. Human rights defenders, civil society activists, journalists, and government opponents, were harassed, threatened or faced arbitrary arrest by police. Widespread impunity continues for abuses by police and state security agents.’

• Human Rights Watch reported that: ‘In June 2016, police began a campaign of politically motivated abuses against activists engaged in countrywide protests against poverty, corruption, rights abuses, and lack of electoral reform. Police resorted to heavy-handed tactics, indiscriminately using water cannons, teargas, and batons to violently crush largely peaceful protests. At various times since June 2016, hundreds of protesters, including student activists, human rights activists, and opposition supporters were arrested, detained, and later released on bail without charge.’

What does the current Information Note of January  2017  say about the Military  in Zimbabwe:

 

Paragraphs 6.3.1; 6.3.2; 6.3.3 and 6.3.4 state:

 

• The armed forces are responsible for external security, but the government sometimes used them for domestic operations.

• An African Leadership magazine 2014 study of the most powerful armies in Africa ranked Zimbabwe last out of the 16 covered. The study stated, ‘The Zimbabwe Defence Forces (ZDF) include the Zimbabwe National Army and the Air Force of Zimbabwe. Being a landlocked country, they lack a naval force. The country also holds a strong paramilitary force with its own air wing. ZDF includes 30,000 active personnel, 20,000 reserves, 325 armoured fighting vehicles, and 92 aircraft.’

• There were reports that ZANU-PF officials in the government discriminated against, harassed, or removed persons perceived to be MDC supporters from the civil service and the military.

• In contravention of the law, active members of the…army openly campaigned for and ran as ZANU-PF candidates in the elections.

What does the current Information Note of January  2017  say about the Central Intelligence Organisation  in Zimbabwe:

 

Paragraphs 6.4.1; 6.4.2; 6.4.3 and 7.1.13 states:

 

• The Central Intelligence Organization (CIO), under the Office of the Vice President, is responsible for internal and external security.’ Furthermore ‘CIO agents and informers routinely monitored political and other meetings. …CIO personnel at times assumed faculty and other positions or posed as students at public and some private universities to intimidate and gather intelligence on faculty and students who criticized government policies and actions. CIO officers regularly attended classes in which noted MDC activists were lecturers or students.’40 Moreover, ‘The CIO remains closely tied to the presidency and free from any substantial regulation by the legislature or civilian bureaucracy.’

• Freedom House, in its 2016 Freedom in the World report covering events in 2015, went on to note: ‘Former ruling party elites and those involved in the political struggle to succeed long time president Robert Mugabe reported receiving threats or being subjected to surveillance by the Central Intelligence Office (CIO) during 2015… CIO agents were said to be watching the movements of current and former ZANU-PF elites on behalf of Mnangagwa, a former CIO chief and presidential aspirant. The CIO also continued to threaten opposition leaders.’

• The Zimbabwe Human Rights NGO Forum in its third quarterly review (July-September 2016) of human rights violations in Zimbabwe concluded that ‘There was apparent connivance between the ZRP, ZNA and CIO in these violations.’

• The USSD report covering events in 2015 stated:‘Security authorities continued to restrict freedom of speech and arrest individuals, particularly those who made or publicized comments critical of President Mugabe or made political statements opposing ZANU-PF or the government’s agenda. CIO agents and informers routinely monitored political and other meetings. Authorities targeted persons deemed to be critical of the government for harassment, abduction, interrogation, and physical abuse. ‘…There were numerous reports that security forces arbitrarily arrested political and civil society activists and then released them the next day without charge.’

What does the current Information Note of January  2017  say about Other pro-ZANU-PF groups  in Zimbabwe: War Veterans, ZANU(PF) Youths and Traditional leaders

 

Paragraphs 6.5.1; 6.5.2; 6.5.3 and 6.5.4 provide:

 

• The DFAT 2016 report noted that the state-sponsored Zimbabwe National Liberation War Veterans Association (ZNLWVA) and the Youth Brigades are the country’s main militia groups. The report continued:‘Members of these groups were the ‘shock troops’ for farm invasions, assaults on farm labourers, and attacks on opposition party members during the 2000s, particularly in rural areas. The ZNLWVA comprises approximately 30,000 active and 10-15,000 inactive members. The Youth Brigades, also known as ‘Green Bombers’, were established as part of the National Youth Training Service in 2001. There are approximately 15,000 Green Bombers. ‘…DFAT is aware of recent media reports which indicate that ZANU-PF is seeking to increase the size of the Youth Brigades. A number of militia groups are allegedly linked to key political players. Many of these groups are reported to include security personnel, and they have been widely used to protect individual and party political and economic interests.’

• The USSD report covering events in 2015 stated: ‘ZANU-PF trained and deployed youths and war veterans to harass and disrupt the activities of MDC members, labor groups, student movements, civic groups, and journalists considered critical of ZANU-PF.’

• However, Aljazeera reported on 8 August 2016 that the ZNLWVA had boycotted a speech by Robert Mugabe and called for him to step down: ‘The Zimbabwe National Liberation War Veterans Association (ZNLWVA) last month denounced Mugabe, 92, as a divisive ruler, in a jolting rebuke underlining mounting anger over economic woes. ‘The ZNLWVA executive was absent from National Heroes Day celebrations in the capital to honour living and dead fighters of the 1970s liberation war against white minority rule. ‘This is the first time leaders of the group have failed to attend the celebrations since ZNLWVA was formed in 1990.’

• With reference to traditional leaders the USSD report covering events in 2015 noted:‘Government officials pressured local chiefs and ZANU-PF loyalists to monitor and report on persons suspected of supporting political parties other than ZANU-PF… While the law obliges traditional chiefs to be impartial, in rural areas ZANU-PF used traditional leaders to mobilize voters and canvass support. In return traditional leaders continued to receive farms, vehicles, houses, and other benefits.’

What does the current Information Note of January  2017  say about civil society groups, political activists  and human rights groups in Zimbabwe:

 

Paragraphs 5.9.1; 5.9.2; 7.1.3; 7.1.9; 7.1.10; 8.1.1; 8.1.2; 8.1.3 and 8.1.9 provide:

 

• The International Business Times (IBTimes) reported that: Since May 2016, a flurry of citizen or civil activism movements have been rising and spreading, and are calling for much yearned social, political and economic change – areas where they believe standard opposition politics have not delivered as hoped. The country has been rocked by two peaceful campaigns known as #ThisFlag and #Tajamuka – both of which have vowed to protest until Mugabe steps down.’  

• IBTimes interviewed the spokesperson for Tajamuka, Promise Mkwnanzi, in the report of 29 July 2016 who said it is a ‘non-violent campaign looking to hold Mugabe’s government accountable for socio-economic and political challenges plaguing Zimbabwe but is also believes the veteran leader must relinquish power…Tajamuka is comprised of 14 political parties that fully subscribe to the idea of the campaign, and more than 30 civil society organisations and youth pressure groups.’

• ACLED [Armed Conflict Location and Event Data Project], in its Zimbabwe October 2016 update, noted: “…. ‘The #Tajamuka and #ThisFlag campaign represent examples of popular movements which have protested against the government on the street and online. #ThisFlag seems to function as an avenue by which ordinary Zimbabweans can demonstrate their grievances against the government with the group’s leader, Pastor Evan Mawarire, calling for Zimbabweans to engage in passive strikes and stayaways to make their voices heard. In contrast, the #Tajamuka campaign is focused on forcing Mugabe to step down before the 2018 elections and has been engaged in active protests and riots in Harare and Bulawayo. Protesting with these social movements is the National Vendors Union of Zimbabwe (NAVUZ) which is also demanding an end to Mugabe’s administration”

• The Freedom House ‘Freedom in the World 2016’ report, published on 14 July 2016, stated: ‘The ruling party uses state institutions as well as violence and intimidation to punish opposition politicians, their supporters, and critical political activists.

• In its 2016 ‘Freedom on the Net’ report covering the period June 2015–May 2016 Freedom House reported that ‘Catching onto citizens’ increasing online engagement, government officials regularly decried the destabilizing effects of social media and reportedly blocked access to WhatsApp for several hours during the July protests. Meanwhile, several individuals were arrested for online activities throughout the year, including Pastor Evan Mawarire for his videos on social media that the authorities perceived as inciting public violence, as well as several ordinary users for their WhatsApp messages that criticized aging President Mugabe.

• A March 2016 briefing paper for the Universal Period Review by the International Service for Human Rights (ISHR), Zimbabwe Lawyers for Human Rights (ZLHR) and Lawyers for Lawyers, Zimbabwe (ZLFL) noted that attacks on human rights’ defenders [HRDs] increase around the time of elections, with a total of 3,629 HRDs subject to arbitrary arrests or malicious prosecution and deprivation of liberty and received legal assistance from Zimbabwe Lawyers for Human Rights (ZLHR) between January 2012 and December 2015.

• The report, covering the period January 2012 – December 2015, noted: ‘The Public Order and Security Act (POSA), which regulates public gatherings, demonstrations, and marches, continues to be applied to disrupt the activities of HRDs [human rights’ defenders] and CSOs [civil society organisations]. The POSA requires notification for ‘public gatherings’; places restrictions on speech and advocacy activity, especially where the speech or advocacy is critical of government policy or focused on politically unpopular causes; and requires written notice of five to seven days in advance of a demonstration. In addition the police often ‘misinterpret’ these provisions and harass members of opposition political parties and CSOs who hold private meetings by requiring that they notify the police every time they want to hold a meeting even if it does not constitute a public gathering.’ The report further noted that during the reporting period at least 38 CSOs were targeted by state actors through ‘raids, visits or search of offices, and/or seizure of property’.

• The USSD report covering events in 2015 stated: ‘A number of domestic and international human rights groups operated in the country, investigating and publishing their findings on human rights cases. Such groups were subject to government restrictions, interference, monitoring, confiscation of materials and documentation, and other forms of harassment. Major domestic NGOs included the Crisis in Zimbabwe Coalition, Zimbabwe Human Rights NGO Forum, Zimbabwe Election Support Network, ZLHR, Zimbabwe Peace Project, ZimRights, National Constitutional Assembly, Students Solidarity Trust, and Women and Men of Zimbabwe Arise. ‘The government harassed NGOs it believed would expose abuses by government personnel or which opposed government policies, and it continued to use government-controlled media to disparage and attack human rights groups. Articles typically dismissed the efforts and recommendations of NGOs that criticized the government, and their authors charged that the real NGO agenda was regime change. ‘Police arrested or detained local NGO members and harassed their leaders, often in connection with NGO meetings or demonstrations.’

• The Summary prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21 : Zimbabwe, 23 August 2016 included the following submissions: -‘human rights defenders continued to face harassment, violence, arbitrary arrest and malicious prosecution – [ISHR (International Service for Human Rights)] -human rights defenders, particularly those working on issues of corruption, public accountability and democratic governance, have been subjected to intimidation and harassment by the Central Intelligence Organization – FLD [Front Line Defenders, Dublin]’

Having regard to the above, a Zimbabwean claimant needs to take stock and consider whether it is still  possible after 21 November 2017 to sustain a  claim for protection   where no  relevant background evidence or appropriate  expert report is in sight to enable them to advance their point.

Where it is no longer possible to show  that war veterans,  the police,  the army, ZANU(PF)  members/youths and  CIO  continue  to participate  in the violent  repression  of Zimbabwean citizens, then advancing a claim based on a fear of return to Zimbabwe for political reasons may not have much chance of success.

OTHER OPTIONS

A relevant blog article is in sight  in relation to  those who  wish to  explore and pursue  other  types of claims apart from asylum:

 

Overstayer Or Failed Asylum Seeker in the UK? Why You Shouldn’t Pack Your Bags Just Yet

 

CONCLUSION

 

No doubt Zimbabweans around the world are relieved that Mugabe has gone.

What however would be particularly heartless on the part of the  UK Government would be  to seek to take removal action  in relation to  undocumented Zimbabweans who have  been residing in the UK for  15years  and over on the basis that, “Mugabe has fallen,  there is  now  significant permanent change in Zimbabwe, so go, leave the UK  and help  build your country”.   There are some individuals, a significant number,  who have nothing to take home,  no  place to  call their own and no idea  of how to start to  rebuild a nation whilst in immediate need of a job  or a roof over their head in a country  whose economy had almost collapsed.