Effect of the “repatriation agreement” between the Zimbabwean and UK authorities: Breach of claimant’s confidentiality or careless exposure to risk?

If brought to  full life without regard to due process and safeguards, the repatriation agreement between the UK Government and the Zimbabwean authorities might have the effect,  on the one hand of creating refugees out of the very people sought to be removed and on the other, breach of their confidentiality.

 

The Independent has learned that at least seven Zimbabwean nationals, some of whom have lived in Britain for more than a decade, were last week ordered to attend meetings at a Home Office building in Sheffield, where they were asked “distressing” questions by an embassy official from their country. The same process is said to be taking place in other parts of the UK…… The Home Office confirmed that a “redocumentation interview” took place in Sheffield on 4 December, and did not deny allegations that it was part of an agreement between the UK government and Zimbabwe to deport 2,500 people”, so reported The Independent on 12 December 2018, https://www.independent.co.uk/news/uk/home-news/asylum-seekers-home-office-zimbabwe-immigration-embassy-political-persecution-africa-a8675571.html

The issue is whether there are adequate procedural safeguards in place to ensure the protection of affected Zimbabwean asylum seekers. As raised in a recent blog post, Zimbabwean Government deals hard blow to UK resident Zimbabweans: Returnees consent no longer required to enforce removals to Zimbabwe:  “…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…………. It is eyebrow- raising therefore that in light of all this, it is thought prudent by the UK Government that the very same Embassy officials believed to be monitoring regular protests outside Zimbabwe House in London, are the ones asking questions of intended returnees at redocumentation interviews”.

It is clear from caselaw and the relevant EU Directive that humanitarian principles underpinning Article 22 of the Procedures Directive prohibit direct contact with the alleged actor of persecution in the country of origin in a manner that might alert them to the likelihood that a protection claim has been made or in a manner that might place applicants or their family members in the country of origin at risk.

Article 22 sets out two separate prohibitions on Member States during the process of examining a claim. The first prohibition relates to disclosure of information by the Member State to alleged actors of persecution. The second prohibition relates to obtaining information from the alleged actor of persecution.

Even though Article 22 focuses on the process of examining an individual protection claim, in circumstances where a person is found not to be in need of international protection, and has exhausted available legal remedies, the UK authorities may share limited information, even without consent, in order to facilitate return:- however disclosure should go no further than is lawful and necessary to secure readmission and there should be no disclosure that could endanger the individual or any other person, including the fact that the person applied for asylum.

 

Some concerns on risk issues:

The concerns for affected UK based Zimbabwean individuals are as follows:

It is not known what information or documentation is being provided to Zimbabwean Embassy officials prior to re-documentation interviews or thereafter.

Are those targeted for removal( ie including the 2500 individuals stated to have been identified earlier this year )being interviewed indiscriminately regardless of whether they have now made claims for asylum or fresh claims?

Having regard to the nature and genealogy of the government that the UK authorities have chosen to lie in bed with, it is not apparent why individuals are being interviewed without any Home Office officials or legal representatives present.

Embassy Officials are strongly believed to monitor the activities of those who have been legitimately protesting regularly over the years outside Zimbabwe House in London. The repressive nature of Mnangagwa’s regime cannot be in doubt, more so having regard to the incidences of violence and deaths following the July 2018 elections. Some Zimbabwean returnees are therefore very likely to be interviewed for re-documentation and return by the same officials who are continuing to monitor their current UK based protest activities.

As to identification of participating protestors, caselaw is helpful to some extent:  YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360 provides at paragraph 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”.

There is no avoiding what the Home Office Country Information Note currently says about Zimbabwe and that government’s stance towards demonstrators, protesters and its critics: Country policy and information note Zimbabwe: opposition to the government, April 2018,

“2.2.20 Demonstrations about the government’s management of the economy are seen by the authorities as politically-motivated, even though people without strong political views have taken part. The police have historically sometimes used excessive force to disperse demonstrators and people have been arrested and detained under public order offences for a few days

2.2.22 The authorities use legal restrictions to impede or interfere with the activities of civil society organisations and human rights defenders perceived to be critical of the government. Prominent activists, who are vocal in their criticism of the government, may be at risk of serious harm or persecution

5.4.2 The USSD report also stated: ‘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.

6.2.5 The USSD human rights report for 2016 stated: ‘The government enforced security laws in conflict with the constitution. Security forces arbitrarily arrested and detained persons, particularly political and civil society activists perceived as opposing the ZANU-PF party. Security forces frequently arrested large numbers of persons during antigovernment protests. State security agents often arrested opposition activists from their homes at night, refused to identify themselves, and used unmarked and untraceable vehicles.

7.Treatment of civil society group

7.1.2 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.’

It is doubtful that the next Country Information Note will fare any better on Zimbabwe’s human rights record as the Note will inevitably have to include events after 30 July 2018 which saw unbridled violence targeted towards opposition members and activists.

The UK government needs to seriously reconsider the position it has taken which is specifically targeted towards enforcing removals and deportations to Zimbabwe, despite the possible risks to individuals also arising out  of the re-documentation procedure.

 

Relevant provisions as to the nature of the duty of confidentiality and the scope of Article 22 of the Procedures Directive:

The relevant provisions and caselaw to be explored further below apply:

 

UNCHR Advisory opinion on the rules of confidentiality regarding asylum information, 31 March 2005:

 

Under Article 35 of the 1951 Convention, the UNHCR has a duty to supervise the application of the provisions of the 1951 Convention. The UNCHR advisory opinion relates to the principles to be applied in relation to the issue of confidentiality in asylum procedures. The Opinion states as follows in summary:

 

  • The UNHCR empathizes the importance of the general principle of confidentiality in a protection claim.

  • The right to privacy and the need for confidentiality is especially important to an asylum seeker whose claim is likely to suppose a fear of persecution by the authorities in the country of origin and whose situation could be jeopardised if protection of information is not ensured.

  • The State which receives a protection claim should refrain from sharing any information with the authorities of the country of origin and from informing the authorities in the country of origin that a national has presented a protection claim. This applies regardless of whether the country of origin is considered by the authorities of the country of asylum as a “safe country of origin” or whether the claim is considered to be based on economic motives.

  • The authorities of the country of asylum may not weigh the risks involved in sharing of confidential information with the country of origin and conclude that it will not result in human rights violations. The UNHCR observes that these principles are reflected in the Procedures Directive.

  • The authorities must seek in advance the written consent of an asylum seeker if they want to check personal data in the country of origin.

  • If an asylum seeker considers that compelling information might be obtainable from the country of origin, and that this could only be obtained through disclosure of personal information, he or she may occasionally request the authorities of the country of asylum for help in obtaining such evidence.

  • Confidentiality is required until a final decision is taken on an individual case, including during administrative or judicial review proceedings.

  • If an asylum seeker has voluntarily disclosed their identity and the fact that they have made a protection claim through public statements, in the view of UNHCR, this may not be interpreted as an explicit waiver of confidentiality.

  • While there is a general rule against sharing information with the country of origin the disclosure of certain confidential information to the country of origin without the consent of the applicant may be justified in limited and exceptional circumstances, such as combatting terrorism.

  • In circumstances where a person is found not to be in need of international protection, and has exhausted available legal remedies, the authorities in the country of asylum may share limited information, even without consent, in order to facilitate return. Disclosure should go no further than is lawful and necessary to secure readmission and there should be no disclosure that could endanger the individual or any other person, including the fact that the person applied for asylum.

 

The key paragraphs of note within the Opinion to consider verbatim are as follows:

 

  • 4. These principles governing the right to privacy are equally applicable to refugees and asylum-seekers, and other aliens, as they are to the nationals. The right to privacy and its confidentiality requirements are especially important for an asylum-seeker, whose claim inherently supposes a fear of persecution by the authorities of the country of origin and whose situation can be jeopardized if protection of information is not ensured. It would be against the spirit of the 1951 Convention to share personal data or any other information relating to asylum seekers with the authorities of the country of origin until a final rejection of the asylum claim.

  • 5. Bearing these concerns in mind, the State that receives and assesses an asylum request must refrain from sharing any information with the authorities of the country of origin and indeed from informing the authorities in the country of origin that a national has presented an asylum claim. This applies regardless of whether the country of origin is considered by the authorities of asylum as a “safe country of origin”, or whether the asylum claim is considered to be based on economic motives. Likewise, the authorities of the country of asylum may not weigh the risks involved in sharing of confidential information with the country of origin, and conclude that it will not result in human rights violations.

  • 6. Article 25 of the Convention, which concerns administrative assistance, also reflects the fact that a refugee cannot rely on the national protection of his or her country of origin. It is also intended to prevent a refugee from being exposed to persecution through contact with the authorities of his or her country of origin and to prevent family members and/or associates who still remain in the country of origin being placed at risk.

  • 7. Confidentiality in asylum procedures is particularly important because of the vulnerable situation in which refugees and asylum-seekers find themselves.

  • 8. The authorities must therefore seek in advance the written consent of asylum seekers to check their personal data in the country of origin. In cases where an asylum-seeker believes that compelling evidence in his or her favor is obtainable from the country of origin, and that this evidence may be obtained only by disclosing certain of his or her personal data, he or she may occasionally request the authorities of the country of asylum for help in obtaining such evidence.

  • 10. ………………The country of asylum remains bound by the principle of confidentiality and personal data on the individual asylum claim must not be disclosed to the country of origin.

  • 11. There is a general rule against sharing information with the country of origin. The disclosure of certain confidential information to the country of origin without the consent of the applicant may be justified in limited, exceptional circumstances, such as combating terrorism.

  • 12. Regarding persons found not to be in need of international protection13 (that is, rejected cases after exhaustion of available legal remedies), the limited sharing of personal data with the authorities of the country of origin is legitimate in order to facilitate return, even if this is without the consent of the individuals concerned. Such cases usually arise when nationality is in question and/or the individual has no national travel or identification documents. However, disclosure should go no further than is lawful and necessary to secure readmission, and there should be no disclosure that could endanger the individual or any other person, not least disclosure of the fact that the individual has applied for asylum. Moreover, in the first instance everything should be done to secure the voluntary nature of return.

  • 16. Secondly, sharing with the country of origin, information about the asylum seeker, including the fact itself that the person applied for asylum, may constitute an aggravation of the person’s position vis-à-vis the Government alleged to be responsible for his persecution. In a situation where the initial elements of the claim presented by the asylum-seeker would not lead to inclusion, sharing of confidential information with the country of origin, could well lead to the asylum seeker becoming a refugee sur place.

  • 17. Thirdly, this practice may endanger any relatives or associates of the asylum seeker remaining in the country of origin and may lead to a risk for retaliatory or punitive measures by the national authorities against them.

  • 23. UNHCR shares the legitimate concern of States to clearly distinguish between persons who need international protection and those who have no valid claim for refugee status. It is a State’s prerogative, and in fact its duty, to make a determination on refugee status based on all available evidence presented in the case. Human rights standards prescribe the State’s obligation to protect the right to privacy of the individual and its inherent protection against information reaching the hands of persons not authorized to receive or use it. The possible risks to the individual asylum-seeker caused by information reaching the wrong people, but also the detrimental effect of misuse of information to the asylum system as a whole are very serious in nature. Consequently, strict adherence to the fundamental principles and refugee protection is vital, and exceptions should only be allowed under well-defined and specific circumstances.

 

Summary of recommendations as per the Opinion

 

  • If the authorities responsible for assessing an asylum claim, whether administrative or judicial, deem it necessary to collect information from the country of origin, such requests must be couched in the most general and anonymous terms, and should never include names or data by which the asylum seeker or his or her family could be identified in the country of origin. Such authorities however must not communicate with entities in the country of origin of the claimant (whether governmental or non-governmental) to verify or authenticate declarations or documents provided by the asylum-seeker.

  • Confidentiality requirements apply throughout the asylum procedure, including judicial review.

  • If research is conducted on an individual case to verify a fact or a document, the written consent of the individual has to be sought in advance, unless, exceptionally, a legitimate overriding security interest is at stake”.

 

 

Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status- the Procedure Directive:

 

Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32005L0085 provides relevantly:

“Article 22

Collection of information on individual cases

For the purposes of examining individual cases, Member States shall not:

(a)

directly disclose information regarding individual applications for asylum, or the fact that an application has been made, to the alleged actor(s) of persecution of the applicant for asylum;

(b)

obtain any information from the alleged actor(s) of persecution in a manner that would result in such actor(s) being directly informed of the fact that an application has been made by the applicant in question, and would jeopardise the physical integrity of the applicant and his/her dependants, or the liberty and security of his/her family members still living in the country of origin”.

The Immigration Rules Paragraph 339IA:

 

The provisions of Article 22 of the Procedure Directive are transposed in paragraph 339IA of the Immigration Rules:

 

“339IA. For the purposes of examining individual applications for asylum

(i) information provided in support of an application and the fact that an application has been made shall not be disclosed to the alleged actor(s) of persecution of the applicant, and

(ii) information shall not be obtained from the alleged actor(s) of persecution that would result in their being directly informed that an application for asylum has been made by the applicant in question and would jeopardise the physical integrity of the applicant and their dependants, or the liberty and security of their family members still living in the country of origin.

This paragraph shall also apply where the Secretary of State is considering revoking a person’s refugee status in accordance with these Rules”.

 

Caselaw – VT (Article 22 Procedures Directive – confidentiality) Sri Lanka [2017] UKUT 00368 (IAC):

 

In VT (Article 22 Procedures Directive – confidentiality) [2017] UKUT 368 (IAC), the Upper Tribunal’s considerations and conclusions were as follows:

 

“28.The basic legal framework outlined above will be familiar to those involved in preparing, presenting and assessing protection claims. The area needing some analysis, which has been subject to less scrutiny by courts and tribunals, is the nature of the duty of confidentiality and the scope of Article 22 of the Procedures Directive.

 

30.It is necessary to put the provision in context before considering the wording. The humanitarian objective of the Refugee Convention underpins the legal regime contained in the Qualification and Procedures Directives. Any action that is taken in examining an asylum claim that might place a person or their family members at risk, or that might enhance an existing risk, must be avoided because it would defeat the purpose of the Refugee Convention.

 

32.As recognised in McGeough, Article 22 applies for the “purposes of examining individual cases”. Confidentiality is of the utmost importance during the process of examining a protection claim. An applicant must feel able to provide relevant information without fear that it might be disclosed to the alleged actor of persecution. Breaches of confidentiality during an inquiry in the country of origin could give rise to additional risk to the applicant or to other people connected to the claim in the country of origin.

 

33.The provisions contained in sub-paragraphs (a) and (b) of Article 22 set out two separate prohibitions on Member States during the process of examining a claim. The first prohibition contained in sub-paragraph (a) relates to disclosure of information by the Member State to alleged actors of persecution. The second prohibition contained in sub-paragraph (b) relates to obtaining information from the alleged actor of persecution. While it would not be difficult to imagine circumstances in which disclosure of information could be made in the process of obtaining information from the alleged actor of persecution, the separation of the two provisions makes a clear distinction between disclosure of information and the risks that might be associated with the process of obtaining information.

 

34.We conclude that the reference to ‘direct’ disclosure of personal information or the fact that a person has made a protection claim must relate to direct contact with the alleged actor of persecution and not solely to disclosure of specific information. The provision must be read in the context of the overall humanitarian objective of the Refugee Convention. Any direct contact made “in a manner” that might lead the alleged actor of persecution to conclude that a person is likely to have made a protection claim, or in a way that might give rise to additional risk, is likely to engage the prohibition under Article 22. Whether direct contact with the alleged actor of persecution has been done in a way that is prohibited by Article 22 will depend on the nature of the inquiry and the circumstances of each case.

 

36.The wording of Article 22 does not include a remedy for a breach of the provision. It cannot be right that a breach of a procedural requirement would give rise to recognition as a refugee if the evidence shows, as a matter of fact, that a person does not have a well-founded fear of persecution. To do so would undermine the purpose of the Refugee Convention………….

 

37.A breach of confidentiality to the alleged actor of persecution might give rise to additional risk to an applicant. This could be ameliorated by a grant of status but would not protect those who might be associated with the claim in the country of origin. Anyone making an inquiry in the country of origin, whether on behalf of an appellant or the respondent, should be vigilant about the duty of confidentiality and the need to avoid risk. Careful consideration should be given to whether an inquiry is necessary, and if it is, whether it can be made in a way that complies with the principles of the Refugee Convention.

 

38.We draw together the following principles relating to the assessment and authentication of evidence produced in support of a protection claim from the legal framework outlined above.

 

(i) …………………………………

 

(vii) There is a general duty of confidentiality during the process of examining a protection claim, including appellate and judicial review proceedings. If it is considered necessary to make an inquiry in the country of origin the country of asylum must obtain the applicant’s written consent. Disclosure of confidential information without consent is only justified in limited and exceptional circumstances, such as combatting terrorism.

 

(viii) The humanitarian principles underpinning Article 22 of the Procedures Directive prohibit direct contact with the alleged actor of persecution in the country of origin in a manner that might alert them to the likelihood that a protection claim has been made or in a manner that might place applicants or their family members in the country of origin at risk.

 

(ix) The humanitarian objective of the Refugee Convention requires anyone seeking to authenticate a document produced in support of a protection claim to follow a precautionary approach. Careful consideration should be given to the duty of confidentiality, to whether an inquiry is necessary, to whether there is a safer alternative and whether the inquiry is made in a way that does not give rise to additional protection issues for applicants or their family members. Disclosure of personal information should go no further than is strictly necessary. Whether an inquiry is necessary and is carried out in an appropriate way will depend on the facts of the case and the circumstances in the country of origin.

 

(x) Failure to comply with the duty of confidentiality or a breach of the prohibitions contained in Article 22 does not automatically lead to recognition as a refugee, but might be relevant to the overall assessment of risk on return”.

 

Caselaw – PA (protection claim: respondent’s enquiries; bias) Bangladesh [2018] UKUT 0337 (IAC):

 

In PA (Protection claim, Respondent’s enquiries, Bias) [2018] UKUT 337 (IAC), the Upper Tribunal reasoned as follows:

 

  • From a detailed reading of VT , it was wrong of the appellant in the present appeal to take out of context the sentence in paragraph 38(vii): “If it is considered necessary to make an inquiry in the country of origin the country of asylum must obtain the applicant’s written consent”. What is prohibited by Article 22(b) of the Procedures Directive and paragraph 339IA(ii) of the Immigration Rules is the obtaining of information in a manner that would result in alleged actors of persecution being directly informed of the fact that an application for international protection had been made by the applicant, which would jeopardise his or his family’s physical integrity, liberty or security.

  • The Upper Tribunal’s reference to requiring consent derived from the UNHCR’s Advisory Opinion of 2005. That document is, as it says, advisory in nature. In order to determine the extent of the United Kingdom’s actual legal obligations in this regard, it is necessary to concentrate on Article 22 of the Procedures Directive.

  • As can be seen from paragraph 34 of the decision in VT, the Upper Tribunal was not, in fact, of the view that any direct contact with alleged actors of persecution is prohibited. Furthermore, the Upper Tribunal was at pains to stress that the prohibition under Article 22 “will depend on the nature of the enquiry and the circumstances of each case”.

  • It will also be evident that, even if the United Kingdom authorities were to obtain the express consent of the person concerned, a breach of Article 22 would still arise, if the ensuing direct contact would lead to one or more of the results described in Article 22(b).

  • For these reasons, it is wrong to interpret paragraph 38(vii) of VT as holding that consent is a legal necessity in all circumstances, or as implying that, if consent is given, there can be no question of a breach of Article 22.

Therefore as regards the UK Government’s inquiries in the country of origin of the applicant for international protection, the Upper Tribunal in PA summarized its conclusions as follows as per its Headnote:

 

(1) There is no general legal requirement on the Secretary of State to obtain the consent of an applicant for international protection before making an inquiry about the applicant in the applicant’s country of origin. The decision in VT (Article 22 Procedures Directive – confidentiality) Sri Lanka [2017] UKUT 00368 (IAC) is not to be read as holding to the contrary.

 

(2) The United Kingdom’s actual legal obligations in this area are contained in Article 22 of the Procedures Directive (2005/85/EC), as given effect in paragraph 339IA of the Immigration Rules. So far as obtaining information is concerned, these provisions prohibit making such an inquiry in a manner that would result in alleged actors of persecution being directly informed of the fact that that an application for international protection has been made, which would jeopardise the applicant’s (or his family’s) physical integrity, liberty or security.

 

(3) If information is obtained in a way that has such an effect, the fact that the applicant may have given consent will not affect the fact that there is a breach of Article 22.

 

What you can do:

 

Affected individuals  may give consideration to the following:

 

  • Write to the Home Office and enquire what information/documentation has been provided to/shared with the Zimbabwean authorities about their circumstances.

  • Enquire of the Home Office when that information was provided to/shared with the Zimbabwean authorities.

  • Make a subject access request – ie request personal information about you that is held on Home Office’s immigration records.  Be very clear as regards the information/documentation you need.  Make a Detailed request so that you can obtain a copy of your full Home Office file- https://www.gov.uk/government/publications/requests-for-personal-data-uk-visas-and-immigration/request-personal-information-held-by-uk-visas-and-immigration

  • Obtain expert legal advice about your position, ie in relation to any current asylum claim, intended fresh claim and/or issues as regards possible breaches of confidentiality.

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