It seems to have taken only one strategically placed deportation charter flight last month to desensitise the Zimbabwean community to the next one.
For the last two weeks or so, it has been said a second charter flight to Zimbabwe is to lift off on 25 August 2021. Contrasted with the sudden flurry of online blog or media activity last month in the Zimbabwean community, with all sorts of views and comments being expressed here and there at various times of the day and night, there currently seems to be an alarming persistent deafening silence in the community in response to the next charter flight.
A few indefatigable organisations (such as ZHRO, ROHR and Zimvigil) and some other individuals seem however determined to plough on in their campaigns, raising awareness to the human rights situation in Zimbabwe.
BARACUK, on their Twitter handle did a fantastic campaign job last month in response to news of the charter flight, and has continued to do so, lending a voice to the plight of the Zimbabwean community and providing reliable updates. www.twitter.com/BARACUK?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor
General concern in the Zimbabwean UK based community over the mass deportations
On-line discussions in July 2021 revealed general concern for deportees and their family members, however some expressed views on legal issues(from those not legally qualified) appeared merely speculative, misleading, a display of ignorance of the law, with others appearing to cause unnecessary alarm/panic and yet others expressing outright ridicule:
- Why would it take someone 20years to resolve their immigration status? Havana kurongeka (they don’t have their affairs in order)
- They deserve to be deported with nothing
- The deportees will be sent to Rwanda from the UK
- They are criminals, let them go
- There is no place like home, they must return, their ancestors welcome them
- Even those of you naturalised as British citizens and those holding indefinite leave to remain will be caught up sooner or later in deportations and so must tread carefully
- Legislative bills going through Parliament currently have been drafted with these Zimbabwean deportees in mind – do you not see the coincidence with the charter flight?
Individuals and their relatives requiring legal advice and representation should ensure the persons they seek advice from are either appropriately registered or authorised according to the law. That way individuals affected can obtain effective legal advice and representation where possible.
Regularization of immigration status: it’s not as simple as it looks or sounds
From news reports since early 2018, it has been clear that thousands of undocumented Zimbabweans in the UK will be targeted for return to Zimbabwe- www.news24.com/news24/Africa/Zimbabwe/uk-to-deport-at-least-2-500-illegal-zimbabweans-report-20180216
Where resolution of immigration status seems much prolonged, increasingly frustrating, with no peace of mind but a mere hope of regularising status, yes, a person may, should they wish, consider the option of voluntary return.
For some however, matters generally are not as straight forward as may be thought.
It is sometimes the case that from a particular point in time lasting months or even years, a person may not fit squarely into the various categories of the Immigration Rules and policies and the Home Office may not be prepared to exercise discretion in favour of such a person.
For some individuals, it may therefore not be that easy to regularise immigration status where something has gone wrong in the past.
Deportation cases generally- foreign national criminals:
A person may have held no permission to remain in the UK or been granted some form of limited leave or even indefinite leave but find themselves subject to deportation proceedings following a criminal offence(s), after several years or decades of residence in the UK.
Individuals who are subject to deportation proceedings, following convictions for criminal offences, may have settled/British minor children and partners in the UK, however the relevant applicable laws are particularly stringent and very difficult to satisfy- that is why it has been seen in the last month that a person who has resided here for twenty years, having minor British children and a wife in the UK, can be deported to Zimbabwe despite having a family life here.
In the majority of such cases, persons who were detained last month or are intended to be detained in future, would have been subject to deportation proceedings months or years prior, been issued with a deportation order automatically before an appeal is heard but ultimately receive a negative outcome in the Tribunal or higher courts.
Those who were subjected to enforcement raids on 13 July 2021 or detained on reporting, included a few such persons with previous failed challenges to deportation proceedings, but because they were “irremovable” due to an absence of a travel document, they remained in the UK years after a failed deportation appeal.
It should also be borne in mind that individuals with certain defined criminality issues or have deportation orders in place cannot place reliance on the 20year Rule (20years continuous residence in the UK, discounting any periods of imprisonment). Their applications will not succeed for failure to satisfy the Immigration Rules on Suitability criteria. The relevant Rules especially drafted for deportation cases instead set out separate criteria to be met by foreign criminals with private life/lengthy residence in the UK.
Deportation cases are particularly complex. On their face, the private and family life provisions of the Immigration Rules required to be satisfied in order to successfully resist deportation appear straight forward enough but are not easy to satisfy in practice. There has been much litigation after 2012, when the applicable Rules were introduced, such that for a deportee seeking to resist deportation, careful regard must be had to the relevant caselaw which has sought to interpret the Rules. Relevant documentary evidence must also be carefully sourced and presented to improve prospects of success. Supportive statements also need to be provided even at the stage where a person is required to provided reasons to the Home Office as to why they should not be deported.
Deportation cases: application to revoke a deportation order
A person subject to a deportation order may apply to the Home Office to have the deportation order revoked. Revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order
There are no Home Office application fees or applications forms required to be completed to accompany such an application.
Applications to revoke a deportation order must, where there are previous Home office decisions, Tribunal or higher court decision relevant to the individual, have regard to these past decision so as to ascertain what went wrong in the past and what needs now to be addressed.
Representations and supportive documents must be submitted in support of an application to revoke a deportation order. An applicant can place reliance upon private and family life provisions of the Immigration Rules or other very compelling circumstances to argue why they the deportation order should be revoked.
If an application to revoke a deportation order is refused, the refusal may generate an in-country right of appeal.
Where no right of appeal is provided, depending on the circumstances, a challenge via judicial review proceedings may be commenced.
Revocation of refugee status
The Home Office may revoke a person’s refugee status.
There are several triggers which could lead to such action but relevantly for those whose refugee status is revoked following a criminal conviction, this would arise having regard to applicable law.
Article 33(2) of the Refugee Convention provides for refugees to be returned to their country of origin, even though they may face persecution, where either:
- there are reasonable grounds for considering they are a danger to the national security of the host state
- they pose a danger to the community after having been convicted by a final judgement of a particularly serious crime
Article 33(2) of the Refugee Convention is reflected in Section 72 of the Nationality, Immigration and Asylum Act 2002 which provides that, for the purposes of Article 33(2), an individual is presumed to have committed a serious crime and be a danger to the community if they are sentenced to imprisonment of at least 2 years. Section 72(6) provides that a presumption under section 72 that a person constitutes a danger to the community is rebuttable by that person.
Where Article 33(2) applies, a refugee may be removed from the UK in spite of the fact they are a refugee according to the Refugee Convention. However, whilst an individual remains at risk of persecution or serious harm in their country of origin they cannot be removed there as this would be contrary to the UK’s obligations under Article 3 ECHR- ie subjection to inhumane and degrading treatment.
If refugee status is revoked and no other form of leave to remain is granted, a person may later on, where such circumstances arise, be able to submit a fresh claim for asylum.
If in that fresh claim for asylum, the person is found to be at risk on return but it is still considered they are a danger to the community, they may be granted limited leave to remain as their removal would be contrary to Article 3 of the ECHR.
Failed asylum seekers and fresh claims:
For failed asylum seekers liable to removal, fresh asylum claims may be submitted if the facts give rise to such a claim.
In addition to submitting Representations and evidence, fresh claims really should be accompanied by a supportive statement from the applicant. This is because preparation of the statement lends support to the reasoning/basis behind the claim.
If a right of appeal is not provided where the claim is refused, judicial review proceedings intended to seek an in-country right of appeal might have a good lifting ground where an effective supportive statement was also submitted with the fresh claim.
Not only can fresh asylum claims be submitted by a failed asylum seeker, but also fresh human rights claims based on private and family life provisions.
There is no Home Office application fee for submitting a first or fresh claim for asylum.
Unless an applicant chooses to do so for whatever reason, there is no requirement to complete an online application form and submit a Home Office application fee with a fresh human rights application. Both fresh asylum and fresh human rights claims can be submitted by a failed asylum seeker without providing any Home Office fee by following the in- person appointment UKVI Liverpool Further Submissions procedure.
New asylum claim:
It is also possible for a person who has been here for 20years but never claimed asylum in the UK to raise a brand new claim for asylum.
This was done last month on 19 July 2021 and a few hours in the afternoon removal directions to Zimbabwe were cancelled.
A very detailed asylum statement for the applicant was however provided along with Representations including supportive relevant background evidence in relation to the human rights abuses and suppression of dissent in Zimbabwe.
It is not enough to simply state in writing that a person wishes to claim asylum, is at risk on return and removal should be stopped. The Home Office may not cancel the removal directions on the basis of such vague representations.
The statement or letter requesting that the asylum claim be registered must be particularised in relation to the claim, also providing reasons and explanations as to why the individual has raised an asylum claim after so many years in the UK.
Persons with British minor children or settled Partners in the UK:
Persons without criminality issues arising nor a deportation order in place can have resort to a much wider array of categories of immigration law to seek to place reliance upon as a basis of application.
- Children born in the UK may have resided here continuously for at least 7years whilst under the age of 18years. Along with their undocumented parents, they can place reliance on the 7year Rule as set out in the Immigration Rules as a basis of stay.
- A person may be undocumented, but their child born here could have accrued 10years continuous residence in the UK whilst under the age of 18years.The child can apply for registration as a British citizen. Their parent(s) may then seek to regularise their status on the basis of their family life with their British citizen child.
- A father or mother with contact/access but not residing with their British child or their child who has resided here for at 7years years, may seek to submit an application to the Home Office if they have a supportive signed statement from the parent living with the child confirming access with the child or if they are able to obtain a family court order giving them direct access to the child.
- A person may be married to or have resided in the UK with their British or settled Partner for at least 2years. Subject to meeting the relevant requirements and providing supportive evidence, a leave to remain application can be submitted on the person’s behalf. Due to the nature of such applications, with the applicant being an overstayer, a detailed statement at least from the Sponsor should be prepared and provided clarifying the particular personal circumstances and addressing matters as required by the Rules.
Person with lengthy residence in the UK but without settled minor children and or partners:
An individual may be in the UK, with no British or settled partner nor minor children such that they are unable to raise family life issues by way of application.
Unless they meet the 20year Rule requirements or private life requirements for young adults who have spent at least half their lives in the UK whilst over the age of 18years but under 25, such applicants require particular care on advice and when applications are being prepared. This is because such applicants may not be caught by the requirements of the Immigration Rules.
Otherwise, applicants can place reliance on their private lives in the UK where the requirements of the Immigration Rules can be shown to be met.
The Immigration Rules on private life requirements provide for applicants who are aged 18 years or above and have lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK. The Rule looks simple enough to satisfy but the in-built “very significant obstacles to integration” test is difficult to satisfy. The test requires consideration of several issues relevant to the individual such as whether they have family in the country of return, any friends, why they state they would be unable to obtain employment in their country of origin or be destitute, whether they can have resort to the social assistance system in the country of return, why they cannot utilise any funds provided via the Voluntary Returns Scheme and why they would state they are unable to integrate into life in the country of return when on the facts they likely lived there the majority of their life before coming to the UK.
Quite a few undocumented Zimbabwean nationals who arrived here in 2001 or 2002 are due to regularise their immigration status relying on continuous residence of 20years in the UK. It is however not enough to place reliance merely on an entry date of 20years ago plus a visit visa entry stamp in an expired passport.
A person who has resided here for at least 20years can have their application for leave to remain refused for failure to provide documentary evidence showing their continuous residence for each of the 20years residence. The application has to be prepared very carefully and there is an art to it in particular where a person has problems providing some documentary evidence.
Those due to accrue the requisite 20years in 2002 are understandably concerned with removal action being taken when they are just a few months short of meeting the required residence. Legal advice should be taken so that reliance can be placed on other provisions to cover the gap in the meantime.
Other provisions and other types of applications:
There are several other provisions of the law and other types of application such as Article 3 Medical condition cases and EUSS Zambrano applications, not referred to above which might enable a person to regularise their immigration status.
Seeking legal advice will assist in bringing out the relevant facts of the case and consequently the provisions of law or Guidance which should be relied upon.
It now seems fairly easy for the Home Office to obtain an Emergency Travel Document (ETD) from the Zimbabwe Embassy
It currently seems that the re-documentation interviews by Zimbabwean Embassy officials that had begun from 2018 are no longer a pre-requisite and travel documents are being issued even for those not interviewed.
For example, those detained on 13 July 2021 had requests for travel documents sent to the Zimbabwean Embassy some weeks or days prior to the home raids and travel documents were issued either prior to the raid or a day or so after detention but prior to 21 July 2021.
It now seems generally fairly easy and straightforward for the Home Office to obtain travel document for Zimbabwean returnees.
The ETD application package consists of a cover letter from the Home Office, a form and documentation an applicant would have provided to the Home Office during the course of applications previously submitted, such as Zimbabwean birth certificates, National ID cards, expired passports and any documents that connect a person to Zimbabwe.
What occurred during the gruesome months of the Covid-19 pandemic which enabled the UK government to detain with a view to deportation from July 2021, was the capitulation of the Zimbabwean government on a number of issues on the one hand and the provision of some incentives to that government on the other.
Ultimately and relevantly, all that the Zimbabwean government is required to do is issue ETD’s without any fuss and give the outward appearance of welcoming deportees.
Prepare for a tussle
Intended deportees, those that represent them as well as those campaigning actively, must be prepared for a tussle.
The sort of legal wrestling that was witnessed between 2005 and 2013 when prolonged litigation related to enforced return of Zimbabwean failed asylum seekers saw the Upper Tribunal, Court of Appeal and even the Supreme Court, occupied with the legal challenges focused on safety of return.
Following the start of the current deportations, there will be litigation in the Upper Tribunal and higher courts over the next months and years.
Meanwhile, the Home Office and the Zimbabwean government currently appear to have a head start – the 14deportees that were removed on 21 July 2021 were one too many.
Deportees with criminal convictions were deported on 21 July 2021. For this group of deportees, the next flight is understood to be only a few days away.
The next move after some weeks or months will be to deport those without any criminal convictions and perhaps even those undocumented but with 18 or 19years residence the UK.
The reticence in the Zimbabwean community regarding the next deportation flight from the UK may or may not be reflective of the general attitude to be adopted as each scheduled removal flight takes place every few weeks over the course of a year or some years.
The next returnee might be a father, brother, sister, finance, spouse, mother or an adult child of someone showing indifference to current circumstances.