There appears to be no hiding from the glaringly obvious: following on from a previous blog post, Is Mnangagwa’s New Government paving the way for UK mass removals of failed Zimbabwean Asylum Claimants ?, the Zimbabwean authorities have indeed now fully sold out on the many undocumented Zimbabweans living in the UK. I say sold out as the Zimbabwean government is apparently ready to welcome with open arms thousands of Zimbabweans who have accrued lengthy residence in the UK, yet offer them absolutely nothing of any enduring substance on return. One only has to look at the current country conditions as they relate to Zimbabwe. Return is to a place of desolation and despair for the majority of those being targeted for return.
Undocumented Zimbabwean nationals therefore now face forcible return to Zimbabwe – whether or not they have given their consent to the Emergency Travel Document(ETD) process. This much is evident from the new UK Country Returns Guide updated on 3 December 2018.
WHAT HAS BEEN THE PROBLEM?
Between 2002 and early 2018, a fine game of chess was being played by the Zimbabwean Government. In retaliation to sanctions imposed against the Mugabe regime, despite a UK policy being in place consistently since 2010 of enforcing removals to Zimbabwe for failed claimants, the UK Government had its hands tied tightly behind its back as the Zimbabwean authorities would not issue emergency travel documents to Zimbabwe unless a returnee was willing to return and gave consent at the Zimbabwean High Commission in London.
Clearly, Mnangagwa has now rolled over and given in to the UK Government. Whichever way you look at it, the two Governments have been whispering sweet little nothings to each other the past few months; how else would one explain the shift to the new redocumentation procedure? The previous problem of enforcing returns to Zimbabwe appears increasingly to be no longer such.
What however is being sacrificed is the dignity and humanity of a multitude of undocumented Zimbabweans who are expected to now look at the real possibility of being returned to Zimbabwe, a country that is perpetually plagued with the sort of problems that no self-respecting, modern independent nation should be tolerating.
CHANGES TO REDOCUMENTATION PROCEDURE- ISSUE OF AN ETD:
The previous UK Country Returns Guide was clear in the following respects as it applied to Zimbabwean returns and the issue of emergency travel documents:
“The Embassy will only issue a travel document where the individual is returning voluntarily and has signed a disclaimer in their presence to that effect”.
The current published Returns Guide, Country returns guide: November 2018, shows an abrupt shift in position:
All ETD applications are required to be submitted to the Returns Logistics Team 1. Mandatory face to face interviews will then be arranged through the RL Country Liaison Documentation Team . This will be through interview schemes at Immigration Removal Centres, Reporting Centres and prisons. The Guide states that only voluntary cases can be interviewed at the High Commission in London. In such cases, the ETD application will be signed by the returnee and submitted to the High Commission. RL Team 1 will arrange an interview.
The new procedure highly likely means that the Home Office are able to bypass attendance at the High Commission for those not willing to give consent for return and instead bring Embassy Officials to various centres where upon being satisfied through vetting that involved individuals are genuine Zimbabweans, travel documents can be issued.
As recently as 11 December 2018, I spoke and met with a Zimbabwean national who on that same date, upon reporting earlier on was required to meet with and be interviewed by a Zimbabwean Embassy official at a well known London Reporting Centre. He was not alone. A good number of Zimbabwean nationals were also subjected to the same procedure.
REDOCUMENTATION AND TRAVEL DOCUMENT INTERVIEWS
Redocumentation and Section 35 of the 2004 Act:
Under section 35 of the 2004 Act a person can be required to take specified action if the Secretary of State thinks:
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this will, or may, help in getting a travel document for, or by that person
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the possession of that travel document will help remove them from the UK
The requirements can include:
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to attend a travel document interview (including telephone interviews)
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to attend or answer questions at an embassy or high commission, either: face to face or telephone interview
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to provide: information to an embassy or high commission in an application for a travel document as well as fingerprints
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having a photograph taken
This is not an exhaustive list and the Home Office Caseworker may also identify other examples of such requirements.
An IS35 is a computer generated form requesting an individual to cooperate with the travel document interview process. It contains a list of specified actions the individual is required to perform by a specified date and time, that the Secretary of State thinks will, or may, help the individual get a travel document.
The IS35 also records that getting the travel document will allow the individual’s deportation or removal from the UK.
The Offence:
A section 35 case is when a person does not comply with specified action they are required to take in the travel document interview process
A person commits an offence under section 35 of the act if they fail, without a reasonable excuse, to comply with any specified actions they are given under this section.
If found guilty, the maximum sentence is two years imprisonment and/or a fine.
Home Office Caseworkers must only consider referring a section 35 case for criminal prosecution when the:
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individual is eligible for removal from the UK
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individual’s non-compliance has prevented the Home Office from getting a travel document
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individual has met one or more of the non-compliance criteria
It is not normally appropriate to use section 35 action if the individual’s Home Office or port file has:
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biometric information
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documentary evidence of the individual’s nationality
However, if the information on the file cannot be used to help get a travel document, for example because part of it is inaccurate or believe to be a forgery, then the Home Office Caseworker can consider if section 35 action is appropriate.
What is a travel document interview?
The travel document interview is for Home Office Caseworkers to find out the information they need to get a travel document.
As this interview is administrative and not a criminal investigation, Caseworkers do not need to:
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conduct the interview with a solicitor present
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provide access to a solicitor for legal advice
When conducting the travel document interview, Home Office Caseworker must:
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confirm the individual understands the interpreter if they are using one, and: they are happy to proceed with that interpreter – if they are not happy, find a replacement
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take two copies of the IS35 to the interview, and: give one to the individual, read the second copy to them, explain what the IS35 is asking them to do and confirm they have understood it
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answer any questions from the individual, recording them: -verbatim (word for word) or in a question and answer format
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record all answers given during the travel document interview on the biometric information and application forms exactly as the individual said it (in the first person): – without paraphrasing, not to abbreviate, not to add their own words because the interview record might become an exhibit in subsequent criminal proceedings if the individual fails to comply
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record any instances when the individual fails to answer on the biometrics information and application form
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ask questions if the individual does not comply with any of the specified requirements and record the answers they give on the form – the questions are: ‘I have interviewed you following a request for your compliance with the documentation process – are you willing to comply with the documentation process?’ – ‘why will you not comply?’ – ‘have you understood the requirements of the form and procedures (IS35)?
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read out the record of the interview to the individual
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read out the statement ‘I confirm that this is a true and accurate record of the interview’ to the individual
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ask the individual to: sign the form, print their name and date the form in the space provided at the bottom
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write ‘refuses to sign’ in the space for their signature if they refuse to sign
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sign and print the Home Office Caseworker’s name in the spaces provided along with the date: if there is an interpreter present, they must also sign and date the form in the spaces provided
After the first travel document interview:
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If the individual complies with the requirements- the Home Office Caseworker must progress and conclude the travel document interview process.
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If the individual does not comply with the requirements- The Home Office Caseworker must refer the case to the executive officer (HEO) or chief immigration officer (CIO) for advice on whether they consider any excuse given at the time of the interview for noncompliance is a reasonable one
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If the HEO or CIO decides their excuse is reasonable-The Caseworker must give the individual another opportunity to comply
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If the individual decides to comply on the second occasion – The Caseworker can restart the travel document interview
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If the individual repeatedly does not comply with the requirements -There is no limit on the number of opportunities the Caseworker can give an individual to comply, but the HEO or CIO must consider whether, despite reasonable excuses, the repeated failure to comply is in itself non-compliance.
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If the HEO or CIO decides the individual has not offered a reasonable excuse – The Caseworker can refer the case for criminal prosecution
When can individual be referred for a section 35 offence?
Home Office Caseworkers can only refer an individual for a section 35 offence when:
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they have exhausted all their appeal rights
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there are no extant (existing or outstanding) time limits within which they might appeal
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the only barrier to removal is the lack of travel documents
However, this does not prevent a documentation unit from requiring an individual to comply with a request to get travel documents after the first adverse immigration decision. This can be a decision to refuse an asylum application or applications in any other immigration category for leave to remain in the UK.
When a section 35 referral may not be made:
There may be some circumstances where referral for section 35 prosecution is not appropriate, for example:
(i)An individual has previously complied with a specified requirement to get a travel document but refuses to comply with any further requirement to get travel documents- It is not appropriate when the individual previously complied but a travel document was not issued:
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through no fault of their own
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due to circumstances beyond their control
(ii)There is biometric information and/or documentary evidence of nationality on the Home Office or port files- The Home Office Caseworker can get a travel document using documents already available on files and must not refer the case for prosecution under section 35.
(iii)Country policy or instructions prevent the removal of an individual even if a Home Office Caseworker could get a travel document- The Home Office Caseworker must check the country policy or current instructions when they consider a section 35 prosecution. If they can get a travel document using documents already available on files they must not refer the case for prosecution under section 35.
Considering a reasonable excuse:
The legislation does not specify what a reasonable excuse is.
In Regina v Masoud Tabnak [2007], the Court of Appeal (criminal division):
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found: ‘failure to cooperate, based on a fear of persecution or serious harm under the Refugee Convention and article 3 of the European Convention on Human Rights, could not amount to a ‘reasonable excuse’ for the purpose of section 35’
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confirmed: to allow fear of persecution to amount to a reasonable excuse would frustrate the intended aims and objectives of Parliament – the defence of reasonable excuse is only concerned with an inability, as opposed to an unwillingness, to comply with the specified requirements
An individual must raise the issue of having a reasonable excuse. Examples of what the Home Office might consider a reasonable excuse include a failure to attend an interview because of:
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a medical appointment
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genuine difficulties with transport
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needing time to get further information
If an individual relies on any excuse during criminal proceedings the prosecution will need to prove, to the criminal standard, that either:
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the excuse does not exist
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it is not a reasonable excuse
If an individual fails to attend a travel document interview:
If an individual does not attend the first interview, regardless of whether a reasonable excuse has been offered, the Home Office Caseworker must:
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invite the person for another interview as soon as possible
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issue the IS35 form with the invitation letter, ticking all the things the individual needs to do on the form
If the individual does not attend the second interview, and has not offered a reasonable excuse for not attending, the Home Office Caseworker must follow the next stage of the process. They must consider whether it is appropriate to:
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refer for criminal prosecution
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take enforcement absconder action
IMPACT ON THOSE WITH UK LENGTHY RESIDENCE:
The new procedures and redocumentation interviews being held across the UK(https://www.independent.co.uk/news/uk/home-news/asylum-seekers-home-office-zimbabwe-immigration-embassy-political-persecution-africa-a8675571.html) can only be geared towards enabling enforced removals. Partnered with the Zimbabwean authorities, the UK Government is positioning itself ready to trigger returns to Zimbabwe, apparently cold to the current dire social, economic and unstable conditions prevailing in that country.
There are possibly thousands of undocumented Zimbabweans with substantial residence in the UK, ie up to 17 years or more, but are unable to regularise their status simply because that residence is not long enough, ie not up to the requisite starting point of 20years required by the Immigrations Rules. Some of those targeted for removal are only a few years short of clocking up 20years UK residence. Those with British children or have children with residence of at least 7years in the UK fare much better than single claimants. The dire conditions in Zimbabwe however for some claimants returning from the UK are likely to amount to very significant obstacles to reintegration and such persons should have their status regularised. It was only in August 2018 that a claimant I represented, single with no children, a failed asylum seeker and with 17years residence was granted leave to remain expressly on the basis of their length of residence with particular reference to the country conditions in Zimbabwe. An effective detailed personal statement, with accompanying legal representations as well as supportive evidence formed part of the application package.
OPPOSITIONIST MEMBERS AND CRITICS OF MNANGAGWA’S REGIME:
There is still a good deal of political turmoil in Zimbabwe. As recently as 1 August 2018 the Zimbabwean government through its military unleashed violence upon perceived opposition supporters and this resulted in the deaths of several Zimbabwean citizens. There are quite a few Zimbabweans who being part of the civic rights movement in the UK engage in protests and demonstrations against Mnangagwa’s government and are also active on social media. There is a risk these people have already been identified or will be fingered through intelligence as oppositionist members and/or critics of the current regime and will likely be at risk on return either at the airport in Zimbabwe or following arrival.
The UK government is no doubt aware of Zimbabwe’s current record on human rights: one only has to look at the published Home Office Country Information Note on Zimbabwe: Country policy and information note Zimbabwe: opposition to the government, April 2018. The Note provides in part:
“2.2.13 While the tone of political rhetoric has been more conciliatory since Mr Mnangagwa came to power, there is a lack of clear and cogent evidence that the government has fundamentally changed the political environment or how it treats those opposed to the state.
2.2.1 Opposition parties continue to operate and represent a challenge to the government. However, the political space is controlled by the ruling ZANU-PF which uses the state security apparatus to harass and intimidate those in opposition to it”.