Zimbabwe’s brutal crackdown on protests and effect on UK based Zimbabwean protesters and activists

 

People were beaten. Some hunted and abducted. Others arrested and detained. Citizens were killed. Children taken and detained. Deliberate internet shutdown covered up a massive operation of repression.

These are the events which unfolded in Zimbabwe from 14th January 2019 running to several days as people in various parts of the world simply watched whilst others steadfastly turned a blind eye to the atrocities.

Zimbabwe’s authorities, via the police, army and other ZANU(PF) agents, treating its own citizens as enemies of the state, launched a brutal crackdown on those involved or perceived to have organised or taken part in the recent fuel protests.  Killing and other forms of ill-treatment were the authorities response to a long suffering nation that dared to express its discontentment with those supposed to lead and serve them.

 

Current problem – UK government’s agreement with Zimbabwe on enforced removals:

It is now widely known that Mnangagwa’s government and the UK are in cahoots over a repatriation agreement intended to enforce removal of undocumented Zimbabweans from the UK – Effect of the “repatriation agreement” between the Zimbabwean and UK authorities: Breach of claimant’s confidentiality or careless exposure to risk?

As reported on 17 January 2019, the Minister for Africa, Harriett Baldwin stated as follows on the situation in Zimbabwe:

I have been following the events in Zimbabwe over the last week with growing concern. I summoned the Zimbabwean Ambassador to the United Kingdom to attend the Foreign Office on 17 January to discuss the situation. Since the weekend there has been widespread unrest and a heavy security force response, with several people killed and many injured.

While we condemn the violent behaviour of some protestors, and unlawful acts such as arson and looting, we are deeply concerned that Zimbabwe’s security forces have acted disproportionately in response. In particular, there are disturbing reports of use of live ammunition, intimidation and excessive force.

In addition, the Government of Zimbabwe shut off access to the internet on 15 and 16 January and continues to block a number of social media sites. We call on the Government of Zimbabwe to ensure its security forces act professionally, proportionately and at all times with respect for human life and constitutional rights. We further call on the Government of Zimbabwe to investigate all allegations of human rights abuses. We also urge the reinstatement of full internet access, consistent with citizens’ constitutional right to freedom of expression”, https://www.gov.uk/government/news/ministerial-statement-on-zimbabwe

The concern despite this public statement, is whether the UK authorities still intend in practice to plough ahead with enforced removals to Zimbabwe regardless of the prevailing volatile climate.  Reports of continuing repression in Zimbabwe abound. Taking into account what is happening behind the scenes, away from the public gaze, it is currently  apparent that the UK government’s focus has not shifted . It was only last Friday, 18 January 2019 that a recently detained Zimbabwe failed asylum seeker was informed by the Home Office that they would be removed to that country, but not before 23 January 2019, giving them time to make representations. The detainee’s valid passport had been submitted to the Home Office upon claiming asylum. There was therefore no need in such circumstances to have Zimbabwean Embassy officials interview  them to establish their  nationality and identity. The individual was simply detained upon reporting.

 

Current problem – focus on country guidance caselaw:

As noted in the published Information Note, Country policy and information note Zimbabwe: opposition to the government, April 2018   the current country guidance caselaw  CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 00059(IAC) heard in October 2012 and promulgated in January 2013, (which modified the Country Guidance in of EM & others (Returnees) Zimbabwe, heard in October 2010/January 2011 and promulgated in March 2011), the Upper Tribunal found that in general there is significantly less politically-motivated violence in Zimbabwe compared with the situation considered by the Asylum Immigration Tribunal in RN (Returnees) Zimbabwe, heard in September/October 2008 and promulgated in November 2008.  CM states in particular, the evidence does not show that, in general, 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 ZANU-PF (para 215 (1).

The UK Government’s position via its country information note Country policy and information note Zimbabwe: opposition to the government, April 2018 is that the political landscape in Zimbabwe has seen some change since CM was promulgated in 2013 but has remained relatively stable. It is considered that while the Zimbabwean government and its proxies continue to subject some members of opposition groups to harassment, discrimination, arbitrary arrest, abduction and physical abuse, it appears to use less overt violence than previously. The Note goes on to state that it is unlikely that a person will be at risk on return purely for having taken part in demonstrations, however, those organising a demonstration may be at risk if the government perceives them to be political agitators. This is stated to depend on their profile, activities and past experiences with the authorities.

The Home Office and the Tribunal have on many occasions either refused or dismissed Zimbabwean asylum claims having regard to CM, concluding lack of risk to the claimant in light of improved or stable conditions in Zimbabwe as well as lack of significant profile.

Rewinding to 1 August 2018, it will be remembered that the Zimbabwean government sanctioned the use of the Zimbabwean army which shot and killed its own citizens. This was in response to opposition supporters having come out in protest over perceived rigging and delays in announcing the Presidential elections results.

Barely 6months later, in light of recent and current disturbances, it is clear, at least running from 1 August 2018,  that there has been a significant increase in violence targeted not only at those involved in organising protests but participants as well as those merely suspected or perceived to have involvement in the protests or with oppositional parties.

In light of the intermittent  internet shut down by the Zimbabwe government over the past few days, the scale of the violence against civilians and activists alike is yet to be fully known  and documented. However, on the basis of the current background evidence that is in the public domain, with reports that at times attacks by state authorities have also been random, CM needs to be revisited.

As suggested in a previous blog post of 3 August 2018, ”There is therefore a focus on a claimant having a “significant MDC profile”, however it may be that CM(Zimbabwe), country guidance caselaw which was published 5years ago, needs revisiting by the Upper Tribunal so as to also properly take into account developments in the intervening years: such as the emergence of social media activism and the diaspora protest movement as more relevant factors to be considered when assessing risk on return to Zimbabwe”- The impact of Mnangagwa’s win upon UK based Zimbabwean asylum claimants

 

Way forward – Return to RN type augments on risk?

It seems worse is yet to follow.

As reported on 20 January 2019 by the Guardian, A brutal crackdown in Zimbabwe that has followed protests against fuel price rises is “just a foretaste of things to come”, the president’s spokesman has said. The harsh words will increase concerns about the deteriorating human rights situation in the poor southern African country, coming after a week in which police and soldiers have beaten civilians, shot 12 people dead and detained at least 600 people, many without charge. “[The] government will not stand by while such narrow interests play out so violently,” George Charamba told the state-controlled Sunday Mail newspaper………..The violence is the worst seen in Zimbabwe for a decade, prompting many to make comparisons with the worst days of the 37-year rule of the autocratic former president Robert Mugabe……..Large numbers of people remain missing – including senior union officials involved in organising the three-day shutdown”https://www.theguardian.com/world/2019/jan/20/zimbabwe-warns-brutal-crackdown-foretaste-of-things-to-come

As above, the true scale of the level of violence orchestrated by the Zimbabwean army and police is not yet known, however it is significant, alarming and continuing.

Can it now be argued that there is indeed significantly politically-motivated violence in Zimbabwe when compared with the situation considered by the Asylum Immigration RN (Returnees) Zimbabwe CG [2008] UKAIT 00083 heard in September/October 2008?

RN in its Headnote provided as follows among other issues:

“1.Those at risk on return to Zimbabwe on account of imputed political opinion are no longer restricted to those who are perceived to be members or supporters of the MDC but include anyone who is unable to demonstrate support for or loyalty to the regime or Zanu-PF. To that extent the country guidance in HS is no longer to be followed. But a bare assertion that such is the case will not suffice, especially in the case of an appellant who has been found not credible in his account of experiences in Zimbabwe.”

RN formed the basis of many a grant of refugee status for Zimbabwean asylum seekers mainly between 2008 and 2011 until it was  buried by CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 00059(IAC).

The evidence to be presented however must show a real risk of serious harm to sustain the argument that anyone now returned to Zimbabwe who is not able to demonstrate allegiance to or association with the Zimbabwean regime should be granted refugee status in the UK. The indicators in the current available background evidence seems to be to that effect but more may be required to sustain arguments on risk.

 

Suggestions?

Relevant issues to consider for those who believe they will be at risk on return to Zimbabwe include:

(1). Raising a particularised asylum claim based on imputed or attributed political opinion, if applicable where for example, a family member in Zimbabwe has been targeted, illtreated, detained or abducted by Zimbabwean state agents on the basis of their political opinion in light of involvement in protests in Zimbabwe or other oppositional activities against Mnangagwa’s regime.

In this regards, it is noteworthy that the Refugee or Person in Need of International Protection (Qualification) Regulations 2006, No. 2525, provides:

“Reasons for persecution

6.—(1) In deciding whether a person is a refugee

…………….

(2) In deciding whether a person has a well-founded fear of being persecuted, it is immaterial whether he actually possesses the racial, religious, national, social or political characteristic which attracts the persecution, provided that such a characteristic is attributed to him by the actor of persecution”.

(2). For politically active claimants in the UK as members of the MDC or other oppositionist party, raise an initial or fresh asylum claim.

(3). In relation to claimants genuinely involved in protest with civic or human rights organisation against Mnangagwa and ZANU(PF), advance an appropriate claim.

(4). Those with pending claims, update both the arguments, personal evidence as well as background evidence as relevant.

(5). Be bold enough and put forward RN type arguments based on recent uptodate background evidence, perhaps also to be accompanied by a country expert report.

(6). Raise a claim of sufficient strength so that in the event of a refusal by the Home Office to accept Further Submissions as a fresh claim and denying a right of appeal, a challenge can be pursued to the Upper Tribunal by way of judicial review.

 

 

 

 

 

 

 

 

Court of Appeal takes Tribunal Judges to school: Pay heed to importance of country guidance caselaw

It is most strange that it should staunchly be maintained before the Court of Appeal that Home Office Presenting Officers are aware of country guidance caselaw, yet a supposedly sufficiently experienced Home office Presenting Officer voluntarily made a concession that was inconsistent with relevant  country guidance caselaw with the result that, also placing  reliance upon that concession, an Upper Tribunal Judge allowed an appellant’s appeal.

 

Even stranger still is that it subsequently emerged that neither the Presenting Officer nor those that represented the Appellant had referred to nor relied upon applicable country guidance ceselaw in the Upper Tribunal.

 

 

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Not yet time for Supreme Court to revisit criteria in Article 3 medical condition cases says Court of Appeal

MM (Malawi) & Anor v the Secretary of State for the Home Department [2018] EWCA Civ 2482 (09 November 2018) as recently decided in the Court of Appeal, is  largely a follow up and conclusion of that Court’s considerations following remittal of MM’s case to the Upper Tribunal as per MM (Malawi) & Anor, R (on the application of) v The Secretary of State for the Home Department [2018] EWCA Civ 1365 (12 June 2018).

 

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New Iraq Country Information Notes: Current key considerations in claims for Humanitarian Protection

An updated Country Information Note on Iraq has now been published: Country policy and information note: security and humanitarian situation, Iraq, November 2018, Version 5.0, 19 November 2018.  This is to be considered in conjunction with the Note published last month: Country policy and information note: internal relocation, civil documentation and returns, Iraq, October 2018.

 

Relevant County Guidance caselaw and other   pertinent cases remain the following:

 

 

Relevant previous blog posts:

 

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Straightjacket effect of MS(Pakistan): The problem of the First Tier Tribunal’s restricted approach to negative trafficking decisions

Would the Tribunal have found themselves in the straight jacket that the Court of Appeal has clothed it with had the Upper Tribunal not “exceeded it’s jurisdiction” or “ overreached itself” as concluded by the Court in The Secretary of State for the Home Department v MS (Pakistan) [2018] EWCA Civ 594?

 

The appeal in MS in the Court of Appeal raised an issue of principle as to the jurisdiction of the First-tier Tribunal and the Upper Tribunal on a statutory appeal under section 84 of the Nationality, Immigration and Asylum Act 2002 Act to undertake an indirect judicial review of a negative trafficking decision made by the Secretary of State in that individual’s case. In that context, the appeal was noted to concern the scope and effect of the previous decision of the Court of Appeal in AS (Afghanistan) v Secretary of State for the Home Department [2013] EWCA Civ 1469.

 

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The Preliminary Information Questionnaire: Are we headed back to an increased use of non-compliance based asylum refusal decisions?

The SEF is back! Not as we know it, but under the guise of the Preliminary Information Questionnaire(PIQ). The Home Office have in recent weeks been sending out the questionnaire to a good number of adults who have claimed asylum, been screened but are yet to be substantively interviewed.

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