Re-documentation Interviews: UK Gvt enabling access to failed asylum seekers by Zimbabwean Embassy officials arguably gives rise to a fresh asylum claim says Upper Tribunal

Its’ been two years following Mnangagwa and his government coming to power, yet there are still no signs in sight of the legacy of violence left behind by Mugabe waning.  The  main opposition party, the MDC,  is operating more or less as a banned political party.  Violence punctuates Mnangagwa’s  rule, periodically  giving the world free access to public displays of unfettered  power, with bullets, baton sticks, abductions and tear gas as part of the weaponry targeted against those believed to be aligned with the opposition.

The problem

This is the same regime that the UK government has colluded with pursuant to some sort of  “repatriation agreement” focused on removing/deporting undocumented Zimbabwean residing in the UK, who despite substantial residence here are considered not to be at risk on return.

Earlier this year, the UK Government seemed notably to be on a drive to push through with massive detentions and removals, partnering with Zimbabwean Embassy officials  engaging in ambush style “re-documentation” interviews  in removal and reporting centres across the country.  Targeted were those without any valid and current Zimbabwean passports so as  to “vet” them  in advance as required by the Zimbabwean authorities, with such interviews intended to result in the issue of Emergency Travel documents.

There are likely to  be quite a few affected interviewees who, upon retrieving their data from the Home Office via Subject Access Requests,  will find the fact  itself of the  meeting with Embassy staff recorded including a note that a travel document has been issued by the Zimbabwean authorities.   

Undocumented Zimbabweans have  been subjected to these interviews,  regardless of whether they have pending  asylum protection- based further submissions with the Home Office and certainly  without any heed to the fact that the very persons conducting the interviews are those claimants or failed asylum seekers have  let it be known to the Home Office will persecute them on return to Zimbabwe.

Grant of permission for judicial review by the Upper Tribunal

Following a decision by the Home Office to refuse a fresh claim for asylum without any right of appeal, with such a decision being challenged by way of judicial review, an Upper Tribunal Judge has just granted a Zimbabwean claimant permission for judicial review. Cited within the grant decision, are several factors relating to how that Home Office arguably erred in their consideration of the claimant’s further submissions.

Relevantly, the Upper Tribunal Judge considered that the Home Office arguably did not consider that their own actions in inviting a Zimbabwean Embassy Official to an interview at the Home Office  might have brought the claimant to the direct attention of the Zimbabwean authorities.

Additionally, the Upper Tribunal Judge referred to background evidence which he stated indicated an “upsurge in political violence in Zimbabwe “  as counting towards the claimant having a realistic prospect of success at appeal. 

What next?

It is important to note that considerations of claims by the Home Office and assessments of subsequent challenges in the higher courts are done on a cases by case basis.

Of note however for current purposes, is the acknowledgment by the Upper Tribunal Judge that there has been an upsurge of political violence in Zimbabwe. The relevant current country guidance caselaw, CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 00059(IAC),  which  was published over 6years ago,  states pertinently:

“(1)  As a general matter, there is significantly less politically motivated violence in Zimbabwe, compared with the situation considered by the AIT in RN.  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 the ZANU-PF”.

Apart from considering issues of a claimants’ credibility,  both the Home Office and First Tier Tribunal have been unhesitant at times, following CM, to  make short shrift of claims on the basis that  the situation in Zimbabwe has not changed since  RN (Returnees) Zimbabwe CG [2008] UKAIT 00083  and that the individual claimant has no significant political profile.   CM, which was  published in February 2013, did not take into account  background evidence going beyond 2012.  In light of the developments in Zimbabwe over the course of the past 7years, clearly the Upper Tribunal should be seeking to identify an appropriate case(s )from which to promulgate fresh new country guidance caselaw so that  the current risk categories can be redefined.  As matters stand and having regard to the current situation in Zimbabwe, CM seems to exclude from recognition of refugee protection quite a few claimants who if returned to Zimbabwe now could be at risk on return.

Meanwhile however, claimants should be providing  with their claims updated background evidence carefully selected as to relevance on seeking to address  the issues in CM either on the basis that the  Claimant does indeed have the requisite  profile or that  due to the  current situation in Zimbabwe, and based on the claimant’s circumstances, CM can be departed from as even a mere perception of anyone associated with the opposition is enough to result in ill-treatment or persecution on return.

In relation to failed asylum seekers who  have been presented to Zimbabwean Embassy staff by the Home Office for re-documentation interviews,  as is currently apparent, it is possible to mount a fresh claim on the basis that the act of their exposure to agents of the feared Mnangagwa government gives rise to a fresh claim for asylum such that they should be granted refugee protection.

**Associated Counsel: Mr Tasaddat Hussain of Garden Court North Chambers

Leave a Reply