Three weeks following written notification from the Home Office that leave as a refugee had been granted, a shiny new BRP card has just been received.
It has been a battle lasting two years, but finally the claimant has been recognised as a refugee, achieving vindication following their public outcry that the practice the Home Office had adopted, working together with Zimbabwe Embassy officials, exposed them to persecution on return to Zimbabwe.
Much has been said in the media since 2018 regarding the Home Office practice of permitting Zimbabwean Embassy officials access to undocumented Zimbabweans in the UK. A few blog articles delve into the effects of this practice:
- Zimbabwean Returnees: What you need to know about the current Emergency Travel Document application process | UK Immigration Justice Watch Blog
- Re-documentation Interviews: UK Government enabling access to failed asylum seekers by Zimbabwean Embassy officials arguably gives rise to a fresh asylum claim says Upper Tribunal | UK Immigration Justice Watch Blog
- Zimbabwean Government deals hard blow to UK resident Zimbabweans: Returnees consent no longer required to enforce removals to Zimbabwe | UK Immigration Justice Watch Blog
- Is Mnangagwa’s New Government paving the way for UK mass removals of failed Zimbabwean Asylum Claimants ? | UK Immigration Justice Watch Blog
The Home Office’s general position in response to refugee sur place claims arising out of Zimbabwean Embassy re-documentation interviews
An undocumented Zimbabwean claimant may seek to put forward a fresh claim for asylum arguing that following Home Office action in facilitating a re-documentation interview with Embassy officials, the consequence is that:
- he has been exposed to an increased/enhanced risk on return to Zimbabwe;
- he will be identified as a person who has claimed asylum in the UK;
- he will have an anti – regime stance imputed to him; and
- he will be viewed as someone unable to demonstrate loyalty to the Zimbabwean regime.
The Home Office’s general responses to such claims includes the following:
- Interviews to obtain the information required for Emergency Travel Documents (ETD) are a common practice of the Home Office.
- The Home Office regularly arranges such events, both in person and over the telephone, in order to facilitate the removal of individuals, who have no leave to remain, from the United Kingdom to their home country.
- ETD interviews are purely to establish nationality of a subject. They are mandatory part of the returns process and conducted for a large majority of countries when seeking to return those with no legal right to remain in the UK
- The ETD would be issued by the Zimbabwean authorities. It does not necessarily follow that there is a reasonable likelihood that the individual will be at risk on return.
- No evidence has been provided to support the claim that the Home Office may have provided details of the claimant’s asylum claim to the Zimbabwean officials.
- Upper Tribunal country guidance has found that an individual would not be at risk on return to Zimbabwe, as failed asylum seeker or as a returnee from the United Kingdom.
How to counter
Whatever else submissions were advanced by the recently recognised refugee, their fresh asylum claim arose directly out of being subjected to a mandatory re-documentation interview with Zimbabwean Embassy officials.
Such an interview was at the behest of the Home Office.
The Court of Appeal in MS (Zimbabwe) v Secretary of State for the Home Department  EWCA Civ 941 (22 June 2021), observed that the Upper Tribunal in that case was prepared to accept that Zimbabwe, ‘remains a society where brutality and human rights abuses continue to take place”.
That is the starting point when seeking to emphasise that subjecting potential returnees directly to agents of such a brutal regime for prior “vetting” exposes them to risk on return.
What however must be addressed by the claimant’s statement, the written representations and supportive documentary evidence, is exactly how and why it is being said that particular claimant will be at risk on return following such an interview.
A Subject Access Request may need to be obtained. It is important to request a copy of the ETD application package that was given by the Home Office to the Zimbabwean Embassy official either in advance of the interview or on the day of the interview itself.
As matters progress, a relevant and appropriate country expert may(funding permitting) need to be instructed.
Are re-documentation interviews still being rolled out?
A relevant question currently might be whether Zimbabwe Embassy re-documentation interviews are still being rolled out by the Home Office.
In early May 2021, an undocumented Zimbabwean was provided a standard letter requiring that they provide information and documentary evidence to establish their nationality and identity to the Home Office at an appointment. The form of this letter is provided to persons of any nationality who no longer have pending representations or claims and are therefore liable to removal or deportation. Prior to the onset of the Covid-19 pandemic, this “first stage” of the re-documentation processes would have ordinarily been followed up by a further appointment to enable an interview with Embassy officials.
It currently seems since early 2020, following announcement of the first lockdown, that Embassy interviews with undocumented Zimbabweans have not been taking place. Indeed, generally across the country, some individuals of different nationals subject to reporting requirements have had these conditions temporarily suspended in light of the pandemic.
Nonetheless, the Country Returns Guidance: 2021 still indicates the following in relation to the ETD application process relating to Zimbabwean returnees:
“All ETD applications should be submitted to the Returns Logistics Team 1.
A mandatory face to face interview will then be arranged through RL Country Liaison and Documentation team 1. This will be through interview schemes at IRC’s, Reporting Centres and prisons. Interview outcomes will be notified via CID.
Only voluntary cases can be interviewed at the High Commission in London. In such cases the ETD application should be signed by the subject and submitted direct to the HC. RL team 1 will arrange an interview”.
Mandatory face- to-face interviews therefore continue to be the practice to be followed to enable the issue of an ETD.
Following lifting of lockdown, undocumented returnees may find themselves face- to-face with a Zimbabwean Embassy official, subject to a mini interrogation and being prompted to speak a language other than English( i.e Shona or Ndebele). It is important immediately thereafter for affected individuals to re-visit their case and circumstances so as to ascertain whether they are in a position to put forward a fresh claim for asylum.