Waves of repression: it’s time that the UK Government suspended enforced removals to Zimbabwe


Unthinkable that a country signed to the Refugee Convention and the European Convention on Human Rights should have an existing policy of enforced returns to a country, where those in power, not only are intolerant of it’s citizens’ justified peaceful criticisms, but will main and kill to remain in power?

The UK Government does have such a policy. In fact, it has since 2018 been working hand in hand with the Zimbabwean government to re-document even those who have continued to express a fear of return to Zimbabwe. 

Return is to a country where the president has declared war on it’s citizens: “On August 4, President Emmerson Mnangagwa publicly denounced critics in a speech, describing them as “dark forces,” “a few rogue Zimbabweans,” and “terrorist opposition groupings.” He said: “Those who promote hate and disharmony will never win. The bad apples that have attempted to divide our people and weaken our systems shall be flushed out. Good shall triumph over evil.” He said nothing about the constitutional rights of Zimbabweans to peacefully protest or the government’s domestic and international human rights obligations”,- https://www.hrw.org/news/2020/08/06/zimbabwe-sadc-au-should-denounce-crackdown

It’s also difficult to ignore the defiant online protest movement that has been raging in Zimbabwe, reaching a crescendo in the last few days – “The Zimbabwe crackdown on activists has inspired an online campaign, with the hashtag #ZimbabweanLivesMatter, which has resulted in more than 700,000 tweets in two days, but neither SADC nor the African Union has spoken out about the situation. South African President Cyril Ramaphosa, the current chairperson of the African Union, should press President Mnangagwa to end the wave of repression and promote respect for human rights”.- https://www.hrw.org/news/2020/08/06/zimbabwe-sadc-au-should-denounce-crackdown

What impact does all this have on undocumented Zimbabweans living in the UK?

Generally, forced removals from the UK in the last few months seem likely to have only been suspended due to the effects of the Covid-19 pandemic, however very recent news reports indicate that the Home Office intend to resume removals- https://www.independent.co.uk/news/uk/home-news/home-office-asylum-seekers-deportation-coronavirus-a9657761.html

This general position will inevitably impact those targeted for removal to Zimbabwe- despite the risks to person and political instability in that country.



There has been no UK Government policy for a decade against the forcible removal of undocumented Zimbabweans. What stopped mass removals from the UK  for a couple of years thereafter until 2018, was the persistent intrusion of an existing policy instituted by the Zimbabwean Government under former president Mugabe. This policy resulted in refusals by the Zimbabwean government in accepting non-consenting Zimbabwean returnees who were not willing to attend at the Zimbabwean Embassy in London and apply voluntarily for an emergency travel document. After president Mnangagwa seized power(November 2017), agreement was reached between the two governments in 2018, with the Zimbabwean government agreeing to issue  return travel documents to failed asylum seekers or the undocumented, with or without their consent-  so long as their identity  and nationality had been vetted in advance by way of interviews by Zimbabwe Embassy officials.

Asa result of this repatriation agreement between the two governments, from late 2018, travel documents have been issued by the Zimbabwean Embassy, however most have lain unused due to inability to remove returnees for one reason or the other.  Applications and fresh asylum claims have been submitted to the Home Office and in such circumstances, removals cannot take place until a determination of the claims by the UK Government or the courts.



The main reason why the UK Government for many years had in place a policy of non-forcible returns for  Zimbabwean failed asylum seekers, was due to the “turbulent political conditions” in that country- https://ukimmigrationjusticewatch.com/2016/12/13/valid-passport-with-the-home-office-zimbabweans-with-no-claims-still-very-much-removable-from-the-uk/

As above, that UK policy was lifted a decade ago.

The  other remaining layer of “protection” arising from the UK government problem of obtaining return travel documents from the Zimbabwean Embassy, fell away in 2018 in light of the repatriation agreement.

The problem in terms of protection and safety for those liable for removal to Zimbabwe stems from the current risk of ill- treatment, violence, or death they might face on return, having regard to current country conditions.

Events over the past two years indicate an entrenchment of political violence in Zimbabwe under Mnangagwa’s rule:

  • Following the July 2018 elections, but before the announcement of the results in August 2018, in response to protests in Zimbabwe, soldiers moved around beating up people  in their  homes. People were fired at and some killed despite not  having been involved in the protests nor being opposition members. Others  were  arrested, detained and ill-treated – https://www.hrw.org/news/2018/08/03/zimbabwe-least-6-dead-post-election-violence
  • In August 2019, the Zimbabwean government went as far as targeting  suspected  would – be protesters  and these perceived to be part of the opposition days before the intended demonstrations which were meant to start on 16 August 2019. Opposition supporters were targeted in advance and thereafter, some beaten and abducted. The demonstrations were banned at the last minute by the Zimbabwean authorities-  https://www.theguardian.com/world/2019/aug/16/zimbabwe-riot-police-teargas-batons-clear-protesters
  • Zimbabwean opposition activists and a member of parliament described torture, humiliation and repeated sexual assaults after being abducted by suspected state security services. The three women, all leaders of the Movement for Democratic Change’s youth movement, were arrested at a roadblock guarded by police and soldiers on 13 May 2020 at a protest in Harare against the state’s failure to provide for the poor during the country’s Covid-19 lockdown. They then disappeared until they were found on a roadside on Friday morning 60 miles away from the capital by a local man, badly injured and traumatised- https://www.theguardian.com/world/2020/may/17/zimbabwean-mdc-activists-abducted-and-sexually-assaulted

Currently, as below, ongoing waves of violence against its citizens by the Zimbabwean government continue.



In addition to members or supporters of the MDC (which is led by Nelson Chamisa) and those perceived to be in opposition to the government, the following are persecuted in Zimbabwe:


Political and human rights activists, critics and protestors:

Zimbabwe: SADC,AU Should Denounce Crackdown, 6 August 2020, https://www.hrw.org/news/2020/08/06/zimbabwe-sadc-au-should-denounce-crackdown:

“SADC and the African Union should call out Zimbabwe’s government for its repression and rampant abuses throughout the country,” said Dewa Mavhinga, southern Africa director at Human Rights Watch. “It’s important for these regional institutions to send strong signals to the Mnangagwa administration that flagrant violations of the African Charter on Human and Peoples’ Rights and other human rights treaties are unacceptable.


The Zimbabwe authorities have increasingly arbitrarily arrested critics of the government, Human Rights Watch said”.

Amnesty International- Zimbabwe: Authorities thwart anti-corruption protests, launch a witch-hunt against activists, 31 July 2020, https://www.amnesty.org/en/latest/news/2020/07/zimbabwe-authorities-thwart-anti-corruption-protests-launch-a-witchhunt-against-activists/:

“Zimbabwean authorities have thwarted a peaceful anti-corruption protest which was planned for today and launched a witch-hunt against political and human rights activists suspected of being behind the planned demonstration, Amnesty International said today.

A number of activists have gone into hiding after police published a list of names of human rights defenders who are wanted for questioning in connection with the planned protests. A number of opposition leaders are also understood to be wanted by the police, while six others have already been arrested.

“The brutal assault on political activists and human rights defenders who have had the courage to call out alleged corruption and demand accountability from their government is intensifying. The persecution of these activists is a blatant abuse of the criminal justice system and mockery of justice,” said Muleya Mwananyanda, Amnesty International’s Deputy Director for Southern Africa.

“This latest witch-hunt and repression of peaceful dissent is a continuation of what we have seen in the country in recent years, including the abductions and arbitrary arrests of those who are critical of the government, in an attempt to muzzle differing views. The thwarting of the protest illustrates the Zimbabwean authorities’ total intolerance of criticism.”


“Zimbabweans must be allowed to freely exercise their human rights, including the rights to freedom of expression and peaceful assembly. The authorities must stop harassing, intimidating and arresting people who have done nothing more than peacefully express their opinions.”


Silencing of certain professions – journalists, doctors, nurses, comedians:

Amnesty International- Zimbabwe: Authorities continue their crackdown on dissent with arrest of investigative journalist and activist, 20 July 2020, https://www.amnesty.org/en/latest/news/2020/07/zimbabwe-authorities-continue-their-crackdown-on-dissent-with-arrest-of-investigative-journalist-and-activist/:

“Authorities in Zimbabwe are continuing their crackdown on dissent with the arrest of a prominent journalist, who exposed a multimillion-dollar scandal involving government officials, and a political activist, who called for a nationwide protest against corruption on 31 July, Amnesty International said today.

Hopewell Chin’ono, an investigative journalist, and Jacob Ngarivhume, an activist who called for the 31 July demonstrations, were arrested earlier today in Harare. Chin’ono has been exposing alleged corruption, including in the procurement of COVID-19 medical supplies.

“The arrests of Hopewell Chin’ono and Jacob Ngarivhume are designed to intimidate and send sending a chilling message to journalists, whistleblowers and activists who draw attention to matters of public interest in Zimbabwe,” said Deprose Muchena, Amnesty International’s Director for East and Southern Africa.

“Zimbabwean authorities must stop misusing the criminal justice system to persecute journalists and activists who are simply exercising their right to freedom of expression and peaceful assembly. The authorities must stop using the police and courts to silence dissent”.

Amnesty International- Zimbabwe: Authorities must drop charges against healthcare workers for demanding better wages, 7 July 2020, https://www.amnesty.org/en/latest/news/2020/07/zimbabwe-authorities-must-drop-charges-against-health-care-workers-for-demanding-better-wages/:

“In response to charges levelled against 13 nurses who are accused of contravening lockdown regulations, introduced as a way to address COVID-19, by protesting to demand better wages and working conditions, Muleya Mwananyanda, Amnesty International’s Deputy Director for Southern Africa, said:

“The charges levelled against these nurses, to enforce COVID-19 lockdown regulations, are clearly aimed at preventing them from organizing and speaking out against low wages and terrible working conditions.

“Zimbabwean authorities are arbitrarily using lockdown regulations to silence medical professionals and activists. The nurses were simply expressing their frustrations with their employer over the failure to address low salaries and longstanding poor working conditions. This, like other labour disputes currently unfolding in Zimbabwe, is a result of the neglect of health care services and the failure by the government to provide adequate remuneration. 

“Zimbabwean authorities must stop intimidating, harassing and suppressing dissent and instead start listening to the genuine concerns of healthcare workers. This is essential to effectively contain the spread of the virus.”

Outspoken Zimbabwe Doctor abducted, 18 September 2019, https://www.hrw.org/news/2019/09/18/outspoken-zimbabwe-doctor-abducted:

“It’s been four days since the leader of the Zimbabwe Hospital Doctors Association (ZHDA), Dr. Peter Magombeyi, went missing. According to a WhatsApp message he managed to send, three unidentified men abducted him from his home in the Budiriro neighborhood of Harare, Zimbabwe’s capital. Since then, no one has heard from him.

Magombeyi, a government employee, had organized a series of protests to demand better salaries for government doctors, ZDHA said. Prior to his abduction, he had received a text message from a local mobile number threating him with disappearance.


Magombeyi’s abduction is not an isolated case. Recent months have seen an alarming spike in abductions and tortureof critics of the government and the political opposition. Since the beginning of the year, the authorities have arbitrarily arrested and prosecuted several peaceful activists on baseless charges. 

Four weeks ago, six masked gunmen abducted and beat Zimbabwean comedian and government critic Samantha Kureya(known as “Gonyeti”). Kureya was forced to drink raw sewage before she was released. Another activist, Tatenda Mombeyara, was abductedby eight masked gunmen wielding AK-47 assault rifles. The abductors accused him of organizing anti-government protests and beat him badly, breaking his left leg and a finger, before abandoning him

Human Rights Watch has been able to confirm more than 50 cases of abductions of activists and other critics of the government this year. So far, none of the perpetrators have been arrested”.


Sexual violence against women as a political weapon:

Amnesty International- Zimbabwe: Drop bogus charges against opposition leaders who suffered sexual violence,27 May 2020,  https://www.amnesty.org/en/latest/news/2020/05/zimbabwe-drop-bogus-charges-against-opposition-leaders-who-suffered-sexual-assault/:

“In response to the Zimbabwe Republic Police’s decision to charge three female opposition MDC-Alliance party youth leaders for participating in peaceful protests against hunger during the lockdown period last month, Muleya Mwananyanda, Amnesty International’s Deputy Director for Southern Africa said:

“Joana Mamombe, Cecelia Chimbiri and Netsai Marova are victims of police brutality, sexual assault and enforced disappearance. Before charging them for allegedly breaking the lockdown rules, authorities must investigate the crimes against them.

“The charges against these three women are a travesty and ploy to intimidate the opposition and send a chilling message that anyone who challenges the government is putting themselves at risk.


The three leaders from the opposition Movement for Democratic Change – Alliance (MDC-Alliance) were disappeared after they were arrested at a roadblock in Warren Park guarded by police and soldiers on 13 May.

They were part of a demonstration organized against the authorities’ failure to provide social protection for the poor during the COVID-19 lockdown. They were later dropped in Bindura after they were subjected to sexual assault violence used as a method of torture and other human rights violations.

They were charged with participating in a gathering with intent to promote public violence and breaches of the peace or bigotry as defined in section 37 of the Criminal Law (Codification and Reform) Act among others”.


Persecution of relatives of political activists or critics of the Zimbabwean government:

WATCH: Niece To Political Activist Abducted, Later Dumped After Being Tortured And Sexually Assaulted, 7 August 2020, https://news.pindula.co.zw/2020/08/07/watch-niece-to-political-activist-abducted-later-dumped-after-being-tortured-and-sexually-assaulted/:

“Noxolo Maphosa, niece to Josphat Mzaca Ngulube, a former director in the ministry of sports and recreation for Bulawayo province and Political activist who has been missing since morning has been found.

Reports suggest that she had been abducted by suspected state security agents only to be dumped later in the day outside her home after she was tortured and sexually assaulted in Bulawayo.

Maphosa’s family reported in the morning that she made a distress call saying she was being followed at 1007hrs and her phone has been off since”.

Zimbabwe: SADC,AU Should Denounce Crackdown, 6 August 2020, https://www.hrw.org/news/2020/08/06/zimbabwe-sadc-au-should-denounce-crackdown:

“On the eve of the anti-corruption protests on July 30, security forces raided the house of Mduduzi Mathuthu, a prominent journalist and editor of the online newspaper Zimlive, in Bulawayo. Failing to find him, they arrested his three nephews, Tawanda Muchehiwa, 22, Advent Mathuthu, 25, and Amandlenkosi Mathuthu, 19. The security agents also detained Mathuthu’s sister, Nomagugu Mathuthu, to compel him to turn himself in, but released her hours later. Advent Mathuthu was charged with incitement of public violence after allegedly being found with flyers saying “Mnangagwa & His Cabinet Must Resign,” but was freed by a court

The Zimbabwe chapter of the Media Institute of Southern Africa (MISA-Zimbabwe) issued a statement, emailed to Human Rights Watch, that security agents “dropped off” Mathuthu’s nephew Muchehiwa at his home on August 1 at about 10 p.m. The group said that he had been tortured by alleged security agents, resulting in serious injuries. According to medical documents reviewed by Human Rights Watch, Muchehiwa was assaulted with a wooden log and sprayed with an unknown substance all over his body. He suffered extensive bruises, an acute kidney injury, and post-traumatic stress disorder”.



The relevant Home Office Country information Note, “Country and information note: opposition to the government, Zimbabwe, February 2019”, is one and half years out of date, only taking into account events running up to 1 February 2019.

The applicable country guidance caselaw, CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59 (IAC) from the Upper Tribunal, published more than 7years ago, is limited to an account on Zimbabwe as at October 2012.

The anxious scrutiny that should be present is questionable when the Home Office and Tribunal apply outdated Notes and country guidance caselaw to determine asylum claims.

It is important to appreciate the context in which CM( Zimbabwe) was considered,7years ago by the Upper Tribunal:

“84. What was exceptional about the election violence in June 2008 is well described at [212] to [220] of RN. Instead of merely targeting MDC activists, members and supporters, ZANU-PF, through its use of militias deployed in urban areas, and militias, road blocks and no-go areas in certain rural provinces, unleashed a wave of persecution that brought a real risk of serious harm to those who could not demonstrate loyalty to the regime.

85. It is in this important context that the views expressed in the new material regarding the likelihood of violence at further elections needs to be viewed. With one possible exception, there is no indication that the comments in the new material, regarding election violence, ought to be read as considered assessments that any future elections would, in substance, lead to a repetition of what was seen in 2008. This went beyond anything seen before and drew the finding in RN, regarding risk on return, not just to those with a MDC profile, but to anyone who could not demonstrate loyalty to the regime.

130. As can be seen, one of the factors underpinning the Country Guidance in RN was the perception that, in late 2008, in the immediate aftermath of the power-sharing agreement, Mugabe and ZANUPF were intent on using the oppressive agents brought to bear during the election campaign, in order to eradicate the power of the MDC. By early 2011, by contrast, it was manifest that any such aim had long since failed: see [149] of EM. There was also highly compelling evidence, including from the appellants, that roadblocks were no longer a real risk: [152] and [153]. So far as Harare was concerned, the Tribunal in EM likewise had cogent evidence before it to indicate that, even during problematic periods such as the COPAC (Constitution Parliamentary Committee) campaign and the unrest in early 2011, the position in high density areas remained materially different from the period under consideration in RN. This can be seen by reading [159] to [173], [176], [201] to [205] and [243] of the EM determination (set out, for ease of reference, in Part 2 of Appendix A to this determination). So far as the unrest in early 2011 is concerned, see also paragraphs 102 to 106 above.

136. By contrast, the Tribunal in EM was assessing the position over two years after the end of the period considered in RN. The position on the ground in Zimbabwe had, for some significant time, been different. The powers haring agreement had given rise to the transitional government, with several ministries being occupied by MDC members. The feared eradication of the MDC as a political force had not happened. International (especially regional) pressure was being brought to bear on Mugabe and Zanu-PF. As [157] of EM noted, the British Ambassador could say in September 2010: “Had we in the chaos and violence of 2008 been offered a glimpse of the Zimbabwe of today, there is little doubt we would have seized it. Tsvangirai, harshly criticised for going into the coalition, has been proved right.”

These considerations, amongst others, led the Upper Tribunal in CM(Zimbabwe) to conclude in its Headnote:

“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”.

The current evidence, which can be obtained from different sources, however shows politically motivated violence in Zimbabwe is on the increase and is significant. There are varied categories of persons who are at risk in Zimbabwe. The online protests movement has evolved and the regime has reacted viciously and brutally to this.  In such circumstances, a continued reference and focus in practice by the Home Office and Tribunal in seeking to look for a  “significant MDC profile” when determining claims from Zimbabwean asylum seekers, seems a wrong approach.

Regardless of whether or not a person has a profile, the position for consideration, resurrecting the principles arising from the previous case of RN(Returnees) Zimbabwe CG [2008] UKAIT 00083 , should be,  “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”. 

Unlike the position when CM(Zimbabwe) was decided, the current evidence shows political violence and repression in Zimbabwe has a wider ambit and is not sparse.

Contrary to circumstances when CM(Zimbabwe) was heard, the power sharing agreement with the MDC came to an end following general elections in July 2013, 6 months after CM was published. No ministries in government are occupied by the MDC.  As was the position when the case of RN(Zimbabwe) governed, the background evidence shows an intention by ZANU(PF) to silence or eradicate the power of the MDC led by Nelson Chamisa or those others in opposition to ZANU(PF).  Unlike the violence in late January/February 2011 as referred to above in CM, the  current background evidence indicates that 2019 and 2020 was punctuated by violence,  with the general population subjected to serious ill-treatment, not just those with a MDC profile, but  anyone unable to  demonstrate loyalty to the regime.

Unlike the violence of 2011, which was considered to have been orchestrated by a small clique of hardliners in a factionalised ZANU(PF), the violence, in particular from August 2018 was orchestrated both by the police and military, a military that ushered in president Mnangagwa through a coup following the forced resignation of Mugabe as president of Zimbabwe in 2017.

The increase in political violence or rather a change in the political situation in Zimbabwe as concerns the persecutory actions and methods of the regime is such that, for returnees, the majority who do not support ZANU(PF), there is a risk of ill-treatment on return to Zimbabwe for failure to demonstrate loyalty to the regime.



It is undeniable that Mnangagwa’s regime has unleashed a wave of persecution that brings about a real risk of serious harm to those who cannot demonstrate loyalty to the regime.

In the face of this, the current position  of the UK Government  in upholding  a position  of enforcing removals, can only be maintained on the basis that it is expected that such returnees,  must, in order to avoid ill-treatment, allow themselves to be cowered by  a brutal government,  be non- critical,  endure severe life destroying  economic hardship,  tolerate intimidation and violence from their own government.

Where that cannot logically be the expectation, a policy of suspension of forced removals to Zimbabwe should be published by the UK Government.

Zimbabwean Returnees: What you need to know about the current Emergency Travel Document application process

The Country Returns Guide contains Home Office guidance on the documents required and processes for returning those subject to removal to their country of origin.

Country returns guide: February 2020, currently provides as follows in relation to the ETD application process for 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”.

In relation to intended returnees who will be made to face Zimbabwean Embassy officials, where an expired Zimbabwean passport already lies on the Home Office file, ETD’s are likely to be issued fairly quickly.  This much is evident from the outcome of disclosed Home Office Minutes/Case Notes following  Subject Access Requests.

In one instance, a subject attended at Becket House for a nationality interview on 11 December 2019, was met by an Embassy Official and by 17 December 2019, an ETD Agreement had been received from Zimbabwe House.

Returnees have had the following recorded on their Home office files on receipt of  an agreement to issue a travel document:

“ETD Agreement received 17/12/2019.

Confirmed Name:

Confirmed DOB:       

PLEASE NOTE: Returns Logistics Team 1 will send out communications to the business once Removal Directions can be set. PPT quality  photos required. 

When  Removal Directions can be set, please inform Returns Logistics team 9 giving 10 clear working day notice.

Regional spreadsheet updated & will be disseminated tomorrow”.                                                                                                                                                                   

Invitation letter to Nationality Interview

Invitation letters from the Home Office in relation to nationality interviews, will run along the following lines:

You are requested to attend and interview at Becket House Reporting Centre, 1st Floor, St Thomas Street, London, PE6 0E2, on 15 March 2020 at 3.00pm.

You must attend with any dependants such as your husband/wife, dependant children or dependant adults. You should contact  the headmaster/mistress of your children’s school to notify them of the children’s requirement to attend this interview; this should enable the absence  to be recorded  as an authorised period of absence.

The interview is required to collate and verify  personal data about you and your family. You are required to bring with you any documents which can confirm yours and your family’s nationality such as:

  • National Passports(old/expired ones or new ones)
  • Birth Certificate ( UK ones for UK born children/spouse and any from your country of origin)
  • National Identity Cards
  • Military Service Cards
  • Military Service Cards/completion Certificates( from your country of origin)
  • Driving licenses ( from your country of origin ( expired or current)
  • Educational certificates, and
  • Letters from family in your home country

If you are unable to attend the appointment for any reason such as sickness, you should contact this office immediately, as failure to do so my affect any outstanding claim you may have with the Home Office.

Please bring this letter with you together with the documents detailed above and any other documentation you have received from the Home Office”.

As is known, mandatory face to face interviews are being carried out, without any prior notice given that Zimbabwean Embassy officials will be present.

Prior to the nationality interview taking place, Home Office Minutes/Case Notes will usually have recorded as follows:

“Criminal Casework Review


Returns to Zimbabwe are starting to resume. Foreign National Offender to be considered for future interview scheme.

Currently appeal rights exhausted, holds original expired passport.

Compliant with reporting

Zimbabwe ETD Interview Scheme

This case has been included on the Interview Scheme taking place at Becket House on 11/12/2019”

Following the nationality interview, all that the  Home Office Minute/Case Notes will record is the following:

“ZWE ETD Interview Scheme

Subject was interviewed by ZWE official at Beckett House RC on 11/12/2019.

CID will be updated when an outcome is received”.

No written record of that interview, or what was asked by the Embassy official and the returnee’s responses will be volunteered by the Home Office within the disclosed Subject Access Request outcome.

ETD Application Checklist

The Home Office appear to have an ETD document Checklists and that from Criminal Casework  Leeds is to the following effect:

  • Detention status? Released- – Subject reports every month on the 20th  at Becket House.
  • Current case status? Subject has been issued with a notice of Deportation order, and  his appeal was refused in 2017.
  • Have you checked to see if there are any outstanding applications/barriers to removal?
  • New photographs included and uploaded to CID? If not taken within last 6/12months  please
  • Has CID been checked to confirm whether a travel document is held or has previously been requested?
  • Has CID been checked for landing card  details?
  • Have all files been checked for Foreign National Offender’s original/copy of passport or evidence of identity or nationality?
  • Have CRS checks been done & included  where relevant?
  • Have the Foreign National’s fingerprints been taken?
  • If applicable, have the pre-verification checks been carried out through the RLO & are the results attached?
  • Has a negative immigration decision been served?
  • Have you confirmed that there is no evidence on file to indicate the Foreign National Offender has a fear of return to their own country, which has not been considered?
  • Have you confirmed  there is no ( implied) mention of asylum in ETD application?***
  • Have the correct travel document forms been completed?
  • Do the biodata  & other relevant forms state the correct Home Office reference, name, nationality, aliases, place and date of birth, last address in the country of origin, passport details?
  • Have all details been checked & verified  on internet, ie schools, hospitals etc?
  • Have you provided any other country specific nationality forms?
  • Do we have supporting evidence of identity/ nationality for the Foreign National Offender, ie passport, birth certificate, ID card?
  • Have files of family members been obtained and checked?
  • Do we have any supporting evidence for family of identity/nationality passport, birth certificate, ID card?
  • Has any supporting evidence been translated?
  • Have the minimum requirements for travel document as per nationality been completed?
  • Submission letter completed  correctly?
  • Country Guidance printed and attached to checklist?
  • Does the application need sending to Returns Logistics or mission?
  • Does the Foreign National Offender need an interview?

Note, the question: Have you confirmed there is no ( implied) mention of asylum in ETD application?

The Home Office will of course  indicate in the Checklist that there is no such mention however the underlying issue, self-evidently, even in the absence of documentation or information within the disclosed file, will be whether it is possible  to mount a fresh claim for asylum  on the basis that by her own actions, the Secretary of  State, in inviting  an official from the Zimbabwean Embassy to an interview  at the Home Office, might have brought an applicant to the direct adverse  attention  of the Zimbabwean authorities.

Submission letter to the Zimbabwean Embassy

The Home Office will need to send the submission letter to the Embassy with the ETD application and such letters are written as below:

Returns Logistics ( RL)

Immigration Enforcement

15th Floor, Lunar House

40 Wellesley Road



Tel: +44(0) 208 196 0151

Zimbabwe House

429 Strand



Application for a travel document- Non detained

Applicant’s Name: Ms Salllle Alllle

Date of Birth:00/00/1900

Our Reference: A0000000

The above named does not have/qualify for leave to enter or remain in the United Kingdom, does not hold a valid travel document and authority to remove them from the United Kingdom has been granted.

 Please find enclosed a travel document application. I would be grateful if you would issue a travel document as soon as possible so that the Home Office can arrange removal.

Should you require any further information, the contact details and telephone number for the Returns Logistics unit are at the top of this letter. Please do not hesitate to contact us.

Yours Faithfully,

Country Manager

Country Returns, Operations and Strategy

Bio Data Information

The Bio Data Information contains responses to the following questions:

  • Home Office reference number
  • Port Reference Number
  • Family name
  • Nationality
  • Other names
  • Male or Female
  • Date of birth
  • Place of birth
  • Nationality
  • Last known address in country of origin: Telephone number
  • Passport number
  • Issuing Government or Authority
  • Place of Issue
  • Date of Issue
  • Valid until
  • Mother’s name
  • Place of birth
  • Mother’s maiden name
  • Nationality
  • Address
  • Father’s name
  • Place of birth
  • Date of birth
  • Mother’s maiden name
  • Nationality
  • Address
  • Last employer in country  of origin
  • Address
  • Date of employment
  • Schools attended in country of origin
  • Name and address of family doctor
  • Name and address of place of worship
  • Name and address of local police stations
  • Name and address of local hospitals

Documents Submitted to Zimbabwe House

As per  the Country returns guide: February 2020,  the following minimum requirements in relation to an application for an ETD are:

  • submission letter
  • bio-data form
  • 4 photographs of passport standard, cut to size
  • supporting evidence, if available
  • full UK birth certificate must be provided for children born in the UK  
  • all supporting evidence accompanying an travel document must be translated into English
  • Fee £80. To be submitted to RL team 1, 15th Floor Lunar House

The Home Office will submit the ETD application to the Zimbabwean Embassy with the above mentioned submission letter.

Home Office Minutes/Case Notes will usually record as follows in this regards:

“ETD pack checked contains submission letter, interview letter, photos, bio data, copy of passport”.

Subject Access Request: absence of relevant disclosure

The online subject access request form requires clarification of the purpose for which  disclosure is required.  

A suggested format to be improved upon, may state the purpose as below:

“To ascertain whether Home Office actions  have placed the Applicant at risk and/or breached his confidentiality. All communication to and from the Home Office and the Zimbabwean Embassy authorities in relation to this Applicant. All interview records and Minutes/Case Notes as regards the meeting of 11 December 2019 between the Applicant and Zimbabwean Embassy Officials. Minutes/Notes/communication between the Embassy and Home Office & between Home Office staff  after 11 December 2019 are also required”.

As above, the Home Office will likely not volunteer disclosure of an interview record or Minute/Case Notes in relation to the face to face interview with the Embassy official. Apart from the submission letter to the Embassy, neither will they likely offer any other documentary communication  that may exist between the Home Office and  the Zimbabwean Embassy before or after the nationality  interview. The ETD Agreement received will also likely not be disclosed.

Instead the Home Office may respond as follows:

 “Unfortunately, there were no records of the minutes of and after the meeting of 11 December 2019 with the Zimbabwean Embassy on our file”.

In  the absence of the requested documentation and information, it is not apparent how such a  response can be  relied upon to sustain a position that  there has been no mention(implied) to the Zimbabwean Embassy of an asylum or other breach during the travel document application process.

If not satisfied with the response to the Subject Access Request, consider writing to the following address within 3months, expressing dissatisfaction with the response:

Customer Service Team

Subject Access Request Unit

UKVI, 11th Floor

Lunar House

40 Wellesley Road

Croydon, CR9 2BY                                                            

Additionally, consider sending a complaint to the Home Office Complaints Unit.

Where relevant disclosure is still not forthcoming, send a letter before claim setting out reasons why judicial review action is appropriate in the circumstances.

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

It’s 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.

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Zimbabwe’s humanitarian crisis and fresh claims: could the current dire living conditions give rise to a breach of Article 3 for returnees?

The humanitarian situation in Zimbabwe seems to be deteriorating.

Can it be argued that the current humanitarian conditions in Zimbabwe are such as to give rise to an argument that if a returnee is removed to Zimbabwe, he or she will be subject to treatment contrary to Article 3 of the ECHR?

There are now almost daily news reports drawing attention to a country that is beset with widespread hunger, severe water shortages/lack of water, poor sanitation, food shortages and power blackouts.

Does removal therefore to a situation of economic and social rights violations as well as dire living conditions lead to a breach of Article 3?

Article 3 of the European Convention provides that: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Poor living conditions are capable of raising a claim under Article 3 if they reach a minimum level of severity, House of Lords in R v SSHD ex parte Adam, Limbuela and Tesema [2005] UKHL 66, at paragraph 7 Lord Bingham said: “… Treatment is inhuman or degrading if, to a seriously detrimental extent, it denies the most basic needs of any human being. As in all article 3 cases, the treatment, to be proscribed, must achieve a minimum standard of severity, and I would accept that in a context such as this, not involving the deliberate infliction of pain or suffering, the threshold is a high one. …… But I have no doubt that the threshold may be crossed if a late applicant with no means and no alternative means of support, unable to support himself, is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life. ..”

It is important to note as a starting point that current country guidance caselaw referred to below concludes in effect that arguments on breaches of Article 3 affecting a returnee to Zimbabwe do not hold out much prospects of success- equally important however is the fact that that caselaw was published over 6years ago and took into account background evidence relating to circumstances that differ to a considerable extent than pertains now.

The Court of Appeal, in the case of SG (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 940 (13 July 2012), found that ‘decision makers and tribunal judges are required to take Country Guidance determination into account, and to follow them unless very strong grounds supported by cogent evidence, are adduced justifying their not doing so’ (paragraph 47).

Can it therefore now be argued that very strong grounds supported by cogent evidence, justify not following country guidance in CM and EM in relation to the Upper Tribunal’s conclusions as regards a breach of Article 3, with the consequence that the current dire conditions in Zimbabwe can be viewed as analogous to those that pertained at the time RN was considered?

In order to plough through with that argument, there needs at some point to be some appreciation of relevant complex casleaw on the issues, so as to be able to apply the relevant legal tests in meeting the high threshold that applies in these type of cases. In essence, whichever test is to be applied, it may be possible depending on the facts of the case, to sustain an argument that removal of a claimant to Zimbabwe currently is likely to result in a breach of Article 3.

Severe humanitarian conditions- what do Home Office Policy Instructions say?

The Home Office acknowledge that severe humanitarian conditions can in certain circumstances meet the Article 3 threshold. Home Office Instruction, Considering human rights claims, https://www.gov.uk/government/publications/considering-human-rights-claims-instruction, states at page 21:

Other severe humanitarian conditions meeting the Article 3 threshold

 There may be some cases (although any such cases are likely to be rare) where the general conditions in the country – for example, absence of water, food or basic shelter – are so poor that removal in itself could, in extreme cases, constitute ill treatment under Article 3. Decision makers will still need to consider how those conditions would impact upon the individual if removed. Any such cases, if granted, would qualify for Discretionary Leave rather than Humanitarian Protection (because they are not protection-related cases), but leave should not be granted without reference to a senior caseworker”.

Other Home Office Instructions, Humanitarian Protection, Version 5.0, 7 March 2017, provide at page 12:

General violence and other severe humanitarian conditions

The Article 3 threshold is a particularly high one. In NA v the UK, the European Court of Human Rights (ECtHR) found that a general situation of violence in the country of return will not normally mean that removing an individual would be a breach of Article 3. It would only be in the most extreme cases of general violence, where there was a real risk of serious harm simply by virtue of exposure to such violence.

There may be exceptional situations where conditions in the country, for example, absence of water, food or basic shelter, are unacceptable to the point that return in itself would constitute inhuman and degrading treatment for the individual concerned. Factors to be taken into account include age, gender, ill-health, the effect on children, other family circumstances, and available support structures. Caseworkers must consider that if the state is withholding these resources from the individual, whether it constitutes persecution for a Refugee Convention reason as well as a breach of Article 3 ECHR. If it amounts to persecution for a refugee convention reason, they are likely to be a refugee.

In Sufi and Elmi v the UK the ECtHR considered how Article 3 applies to the question of generalised violence and a severe humanitarian situation as a result of such violence. It found that following NA v the UK, the sole question for the court to consider is whether, in all the circumstances of the case before it, there were substantial grounds for believing that the person concerned, if returned, would face a real risk of treatment contrary to Article 3. If this is established then their removal will breach Article 3, regardless of whether the risk arises from general violence, a personal characteristic of the individual or combination of both. However, the court found that it is clear that not every situation of general violence will give rise to such a risk and on the contrary, made it clear that general violence would only be of sufficient intensity to create such a risk in the most extreme cases where there was a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return.

The ECtHR went on to address the situation where dire humanitarian conditions, widespread displacement and the breakdown of social, political and economic infrastructures were predominantly due to direct or indirect actions of the parties to the conflict, who were using (in the case of Somalia, for example, at the time of the judgment) indiscriminate methods of warfare in densely populated urban areas with no regard to the safety of the civilian population. Following the approach adopted in M.S.S v Belgium and Greece, the court found that decision makers must consider a claimants’ ability to cater for their most basic needs, such as food, hygiene and shelter, their vulnerability to ill-treatment and the prospect of their situation improving within a reasonable time-frame”.

Current country guidance caselaw on Article 3

The Upper Tribunal in CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59 (IAC), notified on 31 January 2013 concluded that the country guidance given by the Tribunal in EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC) on the position in Zimbabwe as at the end of January 2011 was not vitiated in any respect by the use made of anonymous evidence from certain sources in the Secretary of State’s Fact Finding Mission report of 2010. The Tribunal in EM was entitled to find that there had been a durable change since RN (Returnees) Zimbabwe CG [2008] UKAIT 00083. The Country Guidance in EM therefore did not require to be amended, as regards the position at that time. It was stated in CM that the only change to the EM Country Guidance that was necessary to be made was as regards the position as at the end of January 2011 arising from the judgments in RT (Zimbabwe) [2012] UKSC 38.

Accordingly, the Upper Tribunal in CM, re-stated the EM Country Guidance in its Headnote with the changes underlined in paragraph 5 of its Headnote.

Both headnotes to CM and EM also state relevantly: “The economy of Zimbabwe has markedly improved since the period considered in RN. The replacement of the Zimbabwean currency by the US dollar and the South African rand has ended the recent hyperinflation. The availability of food and other goods in shops has likewise improved, as has the availability of utilities in Harare. Although these improvements are not being felt by everyone, with 15% of the population still requiring food aid, there has not been any deterioration in the humanitarian situation since late 2008. Zimbabwe has a large informal economy, ranging from street traders to home-based enterprises, which (depending on the circumstances) returnees may be expected to enter”.

Having regard to current conditions, the economy of Zimbabwe has significantly deteriorated, the availability of food has not improved, inflation is rising and local currency was re-introduced in June 2019. The humanitarian situation, by reference to reports, has been progressively deteriorating.

What did the Upper Tribunal previously state in RN?

RN (Returnees) Zimbabwe CG [2008] UKAIT 00083 (19 November 2008), was a country guidance case of the Upper Tribunal which for some several years led to the grant of refugee status for hundreds if not thousands of Zimbabwean claimants until it was overshadowed by EM and CM, however for now the relevance of this decision lies on the basis upon which it was concluded that return to Zimbabwe at that time, having regard to the evidence before the Tribunal, could depending on the facts of the case, lead to a breach of Article 3.

RN states as follows in material respects:

“5. General country conditions and living conditions for many Zimbabwean nationals have continued to deteriorate since the summer of 2007. Some may be subjected to a complete deprivation of the basic necessities of life, for example access to food aid, shelter and safe water, the cumulative effect of which is capable of enabling a claim to succeed under article 3 of the ECHR. But that will not always be the case and each claim must be determined upon its own facts.


248.We consider next whether the general country conditions in Zimbabwe, which are accepted to have deteriorated further since the Tribunal considered the evidence in the summer of 2007, are now so bad that there would be an infringement of the appellant’s rights under article 3 of the ECHR if she were required to return.

249.We do accept that discriminatory exclusion from access to food aid is capable itself of constituting persecution for a reason recognised by the Convention.

250.The collapse of the economy and agricultural production has led to severe food shortages. The supermarket shelves are empty so that even those who do have money to spend find it difficult to buy food. For the many others without work or access to any means of financial support access to food aid is essential. The evidence does now establish also that the government of Zimbabwe has used its control of the distribution of food aid as a political tool to the disadvantage of those thought to be potential supporters of the MDC. This discriminatory deprivation of food to perceived political opponents, taken together with the disruption of the efforts of NGOs to distribute food by means of the ban introduced in June 2008, amounts to persecution of those deprived access to this essential support.

251There is no doubt at all that the country conditions in Zimbabwe today are, for many of its citizens, harsh, and extremely difficult. There are many reports in the evidence before us that demonstrate the extent of the difficulties now facing ordinary Zimbabweans in their everyday living conditions. In the letter from the Foreign and Commonwealth Office produced by Mr Walker to which we referred above can be found this assessment:

The humanitarian situation in Zimbabwe is a major cause for concern for the international community. Zimbabwe is suffering from a major economic crisis. Unofficial estimates suggest inflation could now be as high as 100 million%. The economy, and particularly agricultural production, has shrunk by over 50% since 1996. Gold production is at its lowest levels for 90 years. Electricity is severely restricted, blackouts are common and water shortages last four days at a time in some areas. Basic food and fuel are difficult to obtain, with people turning to the black market where prices are too high for the majority. For example, a teacher’s monthly salary is less than the cost of a 10 kg bag of maize meal – which would last a small family about a week. The worst hit are the elderly caring for grand children orphaned by the country’s AIDS epidemic.

There has been a significant deterioration of the food supply situation in Zimbabwe over recent years. Factors such as drought and floods, low crop performance and limited irrigation have been exacerbated by the sharp economic decline. The annual crop and food assessment indicates that this year’s harvest was one of the worst in living memory and Zimbabwe is facing a deficit of over 1 million metric tons in cereals. In addition, Zimbabwe is suffering as a result of HIV and AIDS. The pandemic claims an estimated 2300 lives a week.”

252.It is not hard to add to the list of catastrophes. The heath and education services have collapsed. There is very little economic activity and for many no real prospect of employment. Even where work is available, the sheer scale of inflation means that the cost of travel to and from work often renders the effort pointless.

253.Mr Henderson refers in his skeleton argument and closing submissions to the approach taken by the Tribunal to this issue in HS and argues that the fresh evidence demonstrates that the regime does now bear responsibility for the desperate living conditions endured by many “ordinary” Zimbabweans, even if the Tribunal found that not to be the case in 2007. This is relevant to the article 3 threshold in this respect.


255.We take a similar view to the extent that each case will fall to be decided on its own facts. In some cases we can see that it will not be difficult for an appellant to succeed on this basis. The fresh evidence now before the Tribunal demonstrates that the state is responsible for the displacement of large numbers of people so as to render them homeless and, unless the misgivings expressed in the evidence before us about the very recent lifting of the ban on the distribution of food aid prove to be unfounded, the evidence demonstrates also that there has been a discriminatory deprivation of access to food aid which, plainly, is a deliberate policy decision of the state acting through its chosen agents. But the more recent evidence indicates that those agencies involved with the distribution of food aid, separate from that available to only some from the government, have once again been able to recommence operations, although subject to registration requirements.

256.On the other hand there will be many appellants who will be unable to make out such a case. Where a family has a home and access to some food provision, either from the state or an NGO or other agency, those harsh living conditions are unlikely to establish an infringement of article 3. Many Zimbabweans have relatives living abroad to whom they can look for support. Professor Ranger told us that money transfers were now difficult to arrange. In view of the collapsed economy and the damage to the banking system on account of hyperinflation, we do not find that difficult to accept. But he confirmed also in his oral evidence that there was no reason to believe that the process by which friends or relatives living abroad were able to arrange for groceries and other provisions to be ordered and paid for in neighbouring countries and delivered to homes in Zimbabwe had been disrupted.

257.Some Zimbabweans, especially those living close to the border, will be able to travel freely across into some neighbouring countries to trade, possibly seek employment, or to buy food and provisions. Some will be able to sustain themselves adequately on the basis of food aid and other relief from agencies able and willing to provide it. Thus, the position remains that each claim must be assessed on its own facts”

Although inflation is not as high as it was when RN was published, the current country conditions in Zimbabwe, by reference to readily obtainable evidence/news reports seem to indicate that the humanitarian crises resulting in severe food, water, electricity shortages has led to substantial deterioration in living conditions. The Zimbabwe regime is in large part responsible for the desperate living conditions endured by many ordinary Zimbabweans.

The “ Elmi & Sufi predominant causes” test versus the “ N exceptional circumstances” test

Relevant ECHR and domestic caselaw will need to be engaged with if to advance a claim of this nature based on a breach of Article 3. The position is neatly summarised by the Court of Appeal in their judgement in The Secretary of State for the Home Department v MA (Somalia) [2018] EWCA Civ 994 (02 May 2018):

1.The issues which we have to decide on this appeal include: …… whether Article 3 would be violated if a person to be returned is at risk of being subjected to living standards which fall below humanitarian standards in his country of origin…..”

 2.For the reasons given below, and in the light of the careful submissions that we have had on the important decision of the Court of Justice of the European Union (“CJEU”)…………, I have concluded that:


(4) Article 3 is not normally violated by sending a refugee back to his country of origin where there is a risk that his living conditions will fall below humanitarian standards.

34.This Court held in Said that Article 3 was intended to protect persons from violations of their civil and political rights, not their social and economic rights. In summary, the return of a person who was not at risk of harm because of armed conflict or violence would not in the case of economic deprivation violate Article 3 unless the circumstances were such as those in N v UK [2005] 2 AC 296, where a person was in the terminal stages of illness and lack access to facilities for treatment for his illness in his country of origin. In Said, this Court analysed the case law in the following lengthy passage:


[13] The GS case concerned a number of appellants whose removal was resisted on medical grounds. Permission to appeal had been given in six cases of illegal entrants, rather than “health tourists”. The House of Lords had held in N v Secretary of State for the Home Department [2005] 2 AC 296 that art 3 of the Convention did not oblige a contracting state to provide aliens indefinitely with medical treatment which was unavailable in their home countries, even if the absence of such treatment on return would significantly shorten their lives. It concluded that art 3 could be extended to prevent removal only in very exceptional circumstances. That was where the present state of health of the person who was subject to expulsion was such that, on compelling humanitarian grounds, he ought not to be expelled unless it could be shown that the medical and social facilities were available to him in the receiving state to prevent acute suffering while he was dying. Despite N’s condition (AIDS for which she would be unlikely to obtain suitable treatment or family support in Uganda) she was not in a condition where art 3 would prevent her removal.

[14] The House of Lords considered the decision of the Strasbourg Court in D v United Kingdom (1997) 24 EHRR 423 where the proposed removal of a man to St Kitts was held to violate art 3. In N v United Kingdom 47 EHRR 885, which followed the House of Lords’ decision, the Strasbourg Court itself summarised why exceptionally that was so. The very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him even a basic level of food, shelter or social support: para [42]. It narrowly circumscribed the circumstances in which the principle in the D case would apply to an expulsion case of someone who was suffering from a life-threatening illness. Its overall conclusions are found in paras 42 to 45 of the judgment. In short:

i) Those subject to expulsion are not entitled to remain to continue to benefit from medical, social or other forms of assistance provided by the expelling state. The fact that he would find himself in reduced circumstances, or with reduced life expectancy, does not of itself give rise to breach of art 3;

ii) The decision to remove someone suffering from a serious physical or mental illness to inferior facilities in the receiving country would give rise to a violation of art 3 only in a very exceptional case, where the humanitarian grounds against removal are very compelling;

iii) The circumstances of D’s case provided such exceptional and compelling circumstances.

iv) There may other exceptional cases but the high threshold should be maintained because “the alleged future harm would emanate not from the intentional acts or omissions of public bodies or non-state bodies, but instead from the a naturally occurring illness and the lack of sufficient resources to deal with it;

v) The Convention is essentially concerned with civil and political rights. There is no obligation to alleviate disparities in the availability of treatment across the world through the provision of free and unlimited medical treatment;

vi) These principles apply to the expulsion of any person with a serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised treatment not available in the receiving state.

[15] The significance of point (iv) in the summary is that the paradigm case, as Laws LJ described it at para 39 of the GS case, in which art 3 prevents removal involves the necessary risk of being subject to an intentional act which constitutes torture, or inhuman or degrading treatment. Medical cases, and I would add cases where the complaint is that someone returned would be destitute on arrival, do not fall within that paradigm. Laws LJ reviewed the decisions of the Strasbourg Court in the case of MSS, Sufi and Elmi, SHH and Tarakhel which, in addition to the medical exception narrowly defined in the D and N cases, illuminate the limited circumstances in which it is appropriate to depart from that paradigm in art 3 cases.

[16] In the MSS case the Strasbourg Court decided that Belgium would violate the art 3 rights of MSS, an Afghan asylum seeker, were he to be returned to Greece under the Dublin Convention. That was because of the dire conditions in which he would live in Greece whilst his claim was considered. Responsibility for those conditions rested with the Greek state. In Sufi and Elmi the applicants were Somali nationals who had committed criminal offences in this country. The Secretary of State proposed to deport them. At para 282 of its judgment the court said:

If the dire humanitarian conditions in Somalia were solely or even predominantly attributable to poverty or the state’s lack of resources to deal with a naturally occurring phenomenon, such as drought, the test in N v United Kingdom may well have been considered to be the appropriate one. However, it is clear that while drought has contributed to the humanitarian crisis, that crisis is predominantly due to the direct or indirect actions of the parties to the conflict. The reports indicate that all parties to the conflict have employed indiscriminate methods of warfare in densely populated urban areas with no regard to the safety of the civilian population. This fact alone has resulted in widespread displacement and the breakdown of social, political and economic infrastructures. Moreover, the situation has been greatly exacerbated by al-Shabaab’s refusal to permit international aid agencies to operate in the areas under its control, despite the fact that between one-third and one-half of all Somalis are living in a situation of serious deprivation.”

Al-Shabaab is an Islamist terrorist organisation. The state of affairs described in this extract from the judgment is precisely what has since improved; and it is the improvements which are reflected in the Somalia CG. But on the basis of the evidence as to the conflict at the time of the Sufi and Elmi the Strasbourg Court decided that the circumstances it had described meant that the approach in MSS, rather than N, should be followed.

[17] In para 57 of the GS case, Laws LJ described this as a “fork in the road, on the court’s own approach” between the two different types of case. He then referred to SHH v United Kingdom, concerning a severely disabled Afghan applicant, who sought to rely upon the MSS approach, but failed. His problems on return would result from inadequate social provision and want of resources. The approach in the N case was the correct one. Finally, he considered Tarakhel which was another case about returning asylum seekers under the Dublin Convention, this time to Italy, where there were said to be systemic deficiencies in reception conditions which were the responsibility of the Italian state. The MSS approach was applied.

[18] These cases demonstrate that to succeed in resisting removal on art 3 grounds on the basis of suggested poverty or deprivation on return which are not the responsibility of the receiving country or others in the sense described in para 282 of Sufi and Elmi, whether or not the feared deprivation is contributed to by a medical condition, the person liable to deportation must show circumstances which bring him within the approach of the Strasbourg Court in the D and N cases.

41.Moreover, on Mr Waite’s submission, the FTT failed to deal adequately with the question of remittances from abroad. First, the FTT had not considered the possibility that the respondent’s family in the UK would send him some money even if it was not enough to meet all his living expenses. Remittances from the UK were clearly a relevant factor: the Upper Tribunal in MOJ had heard evidence that in 2009 some £16m had been remitted from the UK to Somalia and there was no reason to think that that figure had diminished in subsequent years. Second, the FTT had not considered the possibility of the respondent taking advantage of the economic boom to which MOJ had referred (paragraph 407) and so gaining employment, which would enable him to support himself. In those circumstances, according to MOJ, he would not be a person who needed international protection. Third, the FTT had failed to consider that his financial position would be enhanced by the subvention of £1,500 that he would receive from the UK authorities (see paragraph 407(h), MOJ).

63.The analysis in Said, by which this Court is bound, is that there is no violation of Article 3 by reason only of a person being returned to a country which for economic reasons cannot provide him with basic living standards. Mr Sills however contends that that situation is brought about by conflict, which is recognised by the European Court of Human Rights as an exception to this analysis. It is true that there has historically been severe conflict in Somalia, but, on the basis of MOJ, that would not necessarily be the cause of deprivation if the respondent were returned to Somalia now. The evidence is that there is no present reason why a person, with support from his family and/or prospects of employment, should face unacceptable living standards.

69.The issue is whether the existing findings, so far as they go, should be preserved. I would accept the argument that it made decisions about the effect of return on the respondent which were not justified by the evidence. It concluded that he would have to live in conditions which fell below humanitarian conditions without considering whether he would be able to take advantage of Somalia’s “economic boom” and find remunerative employment. Nor did it consider whether some remittances could be made to meet some part of his living expenses in Mogadishu, as opposed to the full amount. I would, therefore, remit this matter to the FTT on the basis that it will need to make fresh findings about the respondent’s earning power, whether from remittances or earnings, if he returned to Mogadishu. In contrast, it will not need to revisit its conclusions about the significance of the respondent’s criminal offending, which have not been the subject of appeal by the Secretary of State”.

“N” test versus the “Sufi & Elmi” Test and Zimbabwe

• “N” test– If the dire humanitarian conditions in Zimbabwe are solely or even predominantly attributable to poverty or the state’s lack of resources to deal with a naturally occurring phenomenon, such as drought, the test in N v United Kingdom will be the appropriate one. The threshold is very high. In such circumstances, a decision to remove someone to inferior facilities in the receiving country would give rise to a violation of article 3 only in a very exceptional case, where the humanitarian grounds against removal are very compelling. To succeed in resisting removal on Article 3 grounds on the basis of suggested poverty or deprivation on return which are not the responsibility of the receiving country or others in the sense described in paragraph 282 of Sufi and Elmi, whether or not the feared deprivation is contributed to by a medical condition, the person liable to removal/deportation must show circumstances which bring him within the approach of the Strasbourg Court in the D and N cases.

• “Sufi & Elmi” test– If the dire humanitarian conditions/crisis in Zimbabwe can be argued to be predominantly due to the direct and indirect actions of the Zimbabwean ZANU(PF) Government, due to human actions, ie the intentional acts or omissions of public bodies or non-state bodies resulting in widespread breakdown of social and economic infrastructures, a Court may not consider the approach adopted in N v the United Kingdom to be appropriate. Instead the approach adopted in MSS v Belgium and Greece, which requires it to have regard to an applicant’s ability to cater for his most basic needs, such as food, hygiene and shelter, his vulnerability to ill-treatment and the prospect of his situation improving within a reasonable time-frame should apply. The Sufi and Elmi test therefore, placing reliance on MSS v Belgium and Greece applies a severity standard that is more liberal/less stringent since an “exceptional circumstances” requirement does not apply.

AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 00445 (IAC), is a case where the Upper Tribunal gave country guidance also in the light of the decision of the European Court of Human Right in Sufi & Elmi v the United Kingdom [2011] ECHR 1045. Although the country guidance touched on matters concerning northern Somalia (ie, the semi-autonomous entity of Puntland and the self-proclaimed but internationally unrecognised state of Somaliland), it was primarily concerned with the situation pertaining in central and southern Somalia, including Mogadishu. The major issues concerning risk on return to central and southern Somalia were the armed conflict taking place between, on the one hand, the Transitional Federal Government (TFG) and the African Union Mission in Somalia (AMISOM) and, on the other, the militant Islamists known as Al-Shabab; the threat of harm posed by AlShabab and (to a much lesser extent) the TFG to those living in their respective areas of control; and the humanitarian crisis, amounting in large areas to famine, occasioned by the most sustained drought in the region for many decades.

The Upper Tribunal considered and concluded follows in AMM:

129.Viewed in this light, the finding at [282] of Sufi and Elmi makes jurisprudential sense. If the predominant cause of the poor living conditions faced by a person is due to human actions in the State in question, rather than to naturally occurring phenomena, coupled with a lack of resources to deal with those phenomena, then the high threshold set by N need not be reached. As we understood Mr Eicke, however, the respondent considers this jurisprudence to be novel, rather than “clear and consistent”. It would, he said, in effect be possible in many cases to ascribe a State’s inability to tackle phenomena such as drought or HIV illness as due to the inefficiency, incompetence or corruption of the government of that State. To introduce such considerations would, therefore, be to undermine the settled jurisprudence in N v United Kingdom. It would, in any event, undermine the judgments of the House of Lords in N v Secretary of State for the Home Department [2005] 2 AC 296, which were binding on this Tribunal, irrespective of what the ECtHR might subsequently have held.

130.Whilst we note Mr Eicke’s criticisms of the reasoning process and recognise that such an important issue might have benefited from fuller consideration than that given at [278] to [283] of Sufi and Elmi, we conclude that there is nothing in that judgment on this point that is problematic from a jurisprudential point of view. The requirement in [282] of predominant cause is such as at least substantially to reduce, if not eliminate, the dangers to which Mr Eicke referred. It would, for example, be difficult to hold that the prevalence of a disease such as HIV/AIDS across sub-Saharan Africa is predominantly due to the corruption or other misfeasance of the governments of the countries in that part of Africa. On the other hand, whilst no one disputes that cholera is a naturally occurring disease, there can be no doubt that a government which imprisons people in conditions that are so insanitary as to allow cholera to flourish, would be acting in violation of Article 3. The test of “predominant cause”, upon analysis, seems to us to be part of the settled jurisprudence of the ECtHR and underlies the approach in such cases as N vUK and Kalashnikov.

477. On the evidence before us, we conclude that it is not the actions of the parties to the conflict which have caused the state of famine in southern and central Somalia and the present international humanitarian crisis but, rather, the worst drought there has been for 60 years. Although the effects of the drought have been noticeable for some time, and discussed in previous country guidance cases, the predominant factor behind the decision of families to leave their homes and trek long distances, in often appalling conditions, either to Mogadishu or to neighbouring countries, has been because their livestock have perished, and their subsistence farming is no longer sufficient to support them. It is impossible to accept the suggestion that the parties to the conflict have caused a breakdown in infrastructure, which has led these families to leave.

479.In so finding we have had regard to the very latest evidence, including the observations of Professor Menkhaus, that Somaliland is also affected by the drought but has avoided famine because it has social peace and governance. But the requirement of “predominant cause” cannot be so easily satisfied; and the evidence points to that cause being a natural one, albeit helped on by human beings. Thus, for example, the UN Secretary General’s report referred to deforestation exacerbating peoples’ vulnerability to drought and flood.

480. This does not, however, mean that, because they are not a predominant cause, the direct and indirect actions of the parties to the conflict fall to be left out of account in deciding whether the humanitarian conditions in southern and central Somalia are such as to bring Article 3 into play. On the contrary, as we have already indicated, it seems to us that those actions have a very real role in the assessment of whether, in terms of the law as set out in N v United Kingdom, the present situation is one of those “very exceptional cases” in which humanitarian conditions trigger Article 3.

Looking at the evidence in this holistic way, we find that the present situation in southern and central Somalia is, indeed, one of those “very exceptional case”.

481.In so finding we have reminded ourselves of Mr Eicke’s submissions, as recorded in Part H, which were effectively reiterated in the respondent’s October written submissions, to the effect that one must beware of diluting the N test by bringing into account such things as the incompetence or corruption of a government of a State, as a factor in making its inhabitants more prone to the effects of climate and disease, than are those in the developed world. There are, regrettably, very many countries whose system of government could be said to aggravate the adverse effects of natural phenomena. But it is the very prevalence of such cases that, we consider, answers Mr Eicke’s objection: they are not capable of underpinning a finding that a “very exceptional” situation exists.

482.The contrast between such cases and that of southern and central Somalia is stark, as the evidence shows. A test founded on exceptionality must still be capable of being met; otherwise it is bogus. We consider that the widespread famine, unique to our planet at the present time, coupled with the exacerbating factors we have described, discloses a situation of sufficient exceptionality to cross the threshold set in N. It is this mix of factors that makes the situation exceptional, not the predominance of the parties’ actions that causes the threshold to be lowered.

487.However, we go further. Given the severe nature of the humanitarian crisis, worse even than when the ECtHR considered the position, a person who would in normal conditions have had the ability to go to his or her home village, which is unaffected by the fighting but which is within an area in which there has been a declaration of famine, should at present and as a general matter be assumed to face in that village the kind of desperate situation as is disclosed in the background evidence, with the result that, lacking means of sustenance, he or she would have to try to take refuge somewhere else, such as many thousands of others are doing. Leaving aside for this purpose the issue of Al-Shabab, we do not consider that even the possible availability of the United Kingdom Government money for return (as to which there is an evidential dispute) is likely materially to affect the position in this regard. In areas where there simply is no food, having money is unlikely to put a person in a better position; everyone in such areas is reasonably likely to be reliant on international aid. (We note Professor Menkhaus’ comment that “there is food on the market in much of Somalia”, but we are here considering a rural person, where the only food was from the land and that land is now barren.) Thus, although we have, like the Strasbourg Court, used the likelihood of ending up in an IDP camp as a general touchstone for Article 3 harm, the basic position is, rather, that the generality of those hypothetically removed to southern and central Somalia at the present time will face Article 3 violations by reason of the humanitarian conditions prevailing in the region”.

It may be arguable therefore that the predominant cause of the dire living conditions prevailing in Zimbabwe is not only as a result of the drought, which is a naturally occurring phenomenon but also due to human actions, ie the intentional acts or omissions of public bodies or non-state bodies. The Zimbabwean ZANU(PF) government has been unable to tackle the humanitarian circumstances due to inefficiency, incompetence or corruption. There appears to be official indifference in a situation of serious deprivation or want incompatible with human dignity. A Zimbabwean returnee with no family support or other associations, unable to obtain food aid and with no prospects of employment, would be returning to a state of extreme poverty, unable to cater for their most basic needs: food, hygiene and a place to live.

Caselaw and Gaza – evidence showed that the “predominant cause” test in a humanitarian crisis was arguable

In MI (Palestine) v Secretary of State for the Home Department [2018] EWCA Civ 1782 (31 July 2018), the Court of Appeal considered the case of a national of the Occupied Palestinian Territories who arrived in the United Kingdom after leaving Gaza. The Court of Appeal observed that the Tribunal Judge who dismissed the claimant’s appeal had noted that the Upper Tribunal in the Country Guidance case of HS (Palestinian-return to Gaza) Palestinian Territories CG [2011] UKUT 124 (IAC), in 2011 considered the situation against the background of the infrastructure of Gaza being significantly depleted with problems of access to electricity and clean water and limits to products brought into the territory, but still considered the circumstances had not reached a level where Article 3 was engaged. In dismissing MI’s appeal, the Judge commented that arguably little had changed since 2011 save for further conflict and destruction following a period of rebuilding and development. The Judge also noted that aid to rebuild the country was being brought in, albeit more slowly than anyone would like. The Tribunal Judge also observed that the claimant and his wife did have family in the Gaza Strip. Her family were UNRWA refugees and had access to healthcare facilities. The Judge stated that the country conditions were not good but did not in themselves engage Article 3. He said that those representing the claimant had accepted that the situation currently existing in the Gaza Strip did not reach the necessary threshold.

Before the Court of Appeal, the following was argued on behalf of the claimant:

• The Upper Tribunal Judge had misdirected himself in law in applying the test in N v SSHD since this was not a case where it was argued that the wife’s medical condition per se rendered their removal a breach of Article 3. Rather the claimant’s case was that whether the conditions in Gaza gave rise to a breach depends upon the characteristics of the individuals and a highly relevant characteristic was the state of the wife’s health; the predominant cause of the humanitarian crisis in Gaza was the conflict between Israel and Hamas so that the N test is not applicable: see Sufi & Elmi v United Kingdom (2012) 54 EHRR 9. Given that the dire humanitarian conditions in Gaza were a result of the direct and indirect actions of the parties to the conflict in Gaza, the Judge should have applied the test enunciated at paragraphs 282 and 283 of Sufi & Elmi. The Judge had also erroneously assumed that this was just a medical case whereas the appellant’s case was and had been that they faced inhuman and degrading treatment in Gaza as a result of the dire humanitarian conditions there and their personal circumstances, including her mental health, the fact that she was pregnant (the child was now nearly 3) and that the appellant’s family home in Gaza had been destroyed and the family lived in difficult conditions without electricity or clean water.

• In considering whether the removal of the claimant and his wife would breach Article 3, the Judge failed to consider cumulatively all the relevant factors, instead finding the country conditions in themselves did not engage Article 3 and the wife’s medical condition did not in itself engage Article 3.

• In concluding that in reality nothing had changed in Gaza since the Country Guidance case in 2011, the Judge failed to have proper regard to the country evidence before him, which demonstrated a significant deterioration in Gaza as a result of the conflict in 2014. Reliance was placed upon the evidence of the country conditions which had been before the Upper Tribunal for two purposes. First, that the consequences of the Israeli military operation known as Protective Edge in 2014 had been far more devastating in terms of the destruction of and damage to homes and infrastructure than previous military operations and had caused difficulties for UNRWA. Conditions were particularly bad for women and children. Second, the evidence demonstrated that the predominant cause of the dire humanitarian conditions in Gaza was the ongoing conflict between Israel and Hamas. The Judge had simply not analysed this country evidence properly. If he had done, he could not have concluded that little had changed in Gaza since the Country Guidance case in 2011. Furthermore, if he had analysed the country evidence properly, he could not have dealt with the case on the basis that the N test was applicable.

On behalf of the Secretary of State the following was argued:

• The decision of the Court of Appeal in Said v Secretary of State for the Home Department [2016] Imm AR 1084, demonstrated that it was only in very narrow circumstances that the Court would allow an Article 3 claim which departed from the paradigm. If there was to be such departure, it had to be on the basis of principle which here was that the approach adopted in Sufi & Elmi only applied where there was an element of intentionality on the part of the parties to the conflict. The al-Shabaab, an extremist organisation was corralling the population in certain areas and refusing them access to international aid. The situation in Palestine was not comparable not least because of the permanent presence of UNRWA to protect the refugee population. If the Sufi & Elmi approach were applied here, it would apply to other receiving states where there were dire humanitarian conditions.

• Reliance was placed upon the decision of the Strasbourg Court in SHH v United Kingdom (2013) 57 EHRR 18. That case concerned an Afghan national who was disabled in a rocket launch attack and came to the United Kingdom some four years later. The Court held that the N test applied to his Article 3 claim and distinguished Sufi & Elmi holding at [91] that although the situation in Afghanistan was very serious, it could not be attributed to the ongoing conflict. It was submitted on behalf of the Secretary of State that the same conclusion would have been reached here even if the Sufi & Elmi point had been raised.

The Court of Appeal noted that the case of MSS v Belgium and Greece and Sufi & Elmi v United Kingdom (2012) 54 EHRR 9 was of particular relevance in the present context. It was noted that in that case, the Government contended that the appropriate test for assessing whether the dire humanitarian conditions reached the Article 3 threshold was that set out in N v United Kingdom so that humanitarian conditions would only reach the threshold in very exceptional cases where the grounds against removal were compelling. The Strasbourg Court rejected that contention in the particular circumstances of that case because the humanitarian crisis in Somalia was predominantly due to the direct and indirect actions of the parties to the conflict there, so that the “very exceptional circumstances” test in N was not applicable.

The Court of Appeal also reiterated that in Sufi & Elmi, the court avowedly followed MSS (paragraph 283). In Sufi & Elmi, the critical factor was that the “crisis is predominantly due to the direct and indirect actions of the parties to the conflict”: paragraph 282. This was closer to the paradigm than the ill-treatment in question in MSS, for it must have involved deliberate acts. Thus in MSS and Sufi & Elmi the court looked for particular features which might bring the case within Article 3, and found them – in Greece’s legal duties and the applicant’s status as an asylum-seeker, and in the nature of the crisis in Somalia.

The Court of Appeal concluded as follows in MI (Palestine):

• The Deputy Upper Tribunal Judge failed to have regard to the approach adopted in Sufi & Elmi and therefore failed to consider properly what test should be applied to the facts of the present case. He only considered and applied the N test and therefore misdirected himself.

• It was noted that it had been submitted on behalf of the Secretary of State that, even if the Court reached that conclusion, the Court should dismiss the appeal because, as SHH and Said demonstrated, the less stringent Sufi & Elmi test would not apply in the present case as it could not be said that the dire humanitarian conditions in Gaza were such as were attributable to the direct and indirect actions of the parties to the conflict in Gaza or that the element of intentionality was present.

• The Court of Appeal however concluded that having considered the country evidence referred to on behalf of the claimant, the Court considered that it was sufficiently arguable that the conditions in Gaza are and were attributable to the direct and indirect actions of the parties to the conflict within the meaning of [282] of Sufi & Elmi and that there was an element of intentionality if that was a necessary ingredient before the approach in that case will be adopted.

• It was also considered that the Deputy Upper Tribunal Judge failed to have proper regard to the country evidence, in particular the evidence as to the seriously worsened position after the Israeli military operation in 2014.

• The Court of Appeal allowed the appeal and remitted the case for reconsideration of the evidence and the law by a differently constituted Upper Tribunal. It was stated that whether the case was one to which the Sufi & Elmi approach should apply would be a matter for that Upper Tribunal to decide.

• The Court of Appeal also stated that their attention was drawn to the fact that the Country Guidance in HS not only pre-dated the decision in Sufi & Elmi but also dealt with the position as it was up to 2010, some years before the 2014 military operation with its serious impact on the population and the infrastructure. It was noted that Counsel had suggested that perhaps a new Country Guidance case on Gaza should be considered. The Court of Appeal concluded that ultimately it was a matter for the Upper Tribunal, not the Court, although the Court could see the sense of the suggestion given that, on any view the Country Guidance in HS was somewhat out of date.

What a claimant might need to address to advance an Article 3 claim

Country guidance caselaw relating to Somalian and Iraqi cases in MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC) and AAH (Iraqi Kurds – internal relocation) Iraq CG UKUT 00212 (IAC), might, as summarised within the Headnotes give an indicator of the sort of matters that a claimant might need to address:

Explain why on returning to Harare, Bulawayo or their home area, after a period of absence, the returnee will be unable to look to his nuclear family, if he has one living in the city, for assistance in re-establishing himself and securing a livelihood. If the returnee has family members living in Zimbabwe that family may be able to accommodate him. In such circumstances the returnee would, in general, have sufficient assistance from the family so as to lead a “relatively normal life”, which would not be unduly harsh. It should nevertheless be important for decision-makers to determine the extent of any assistance likely to be provided by the family on a case by case basis.

If it is accepted that a person facing a return to Harare or Bulawayo or their home area after a period of absence has no nuclear family or close relatives in the city to assist him in re-establishing himself on return, there will need to be a careful assessment of all of the circumstances. These considerations will include, but are not limited to:

• circumstances in Harare or Bulawayo or their home area before departure;

• length of absence from Harare or Bulawayo or their home area;

• family or other associations to call upon in Harare or Bulawayo or their home area ;

• access to financial resources;

• prospects of securing a livelihood, whether that be employment or self employment;

• availability of remittances from abroad;

• means of support during the time spent in the United Kingdom;

• why his ability to fund the journey to the West no longer enables a claimant to secure financial support on return

If the returnee cannot live with a family member, show, following evidenced research the cost of rent in Harare or Bulawayo or their home area. The cost of renting may be beyond the returnee’s reach.

It may be that only those with no associations or family support who will not be in receipt of remittances from abroad and who have no real prospect of securing access to a livelihood on return who will face the prospect of living in circumstances falling below that which is acceptable in humanitarian protection terms.

In considering whether the returnee would be able to access basic necessities, account must be taken of the fact that failed asylum seekers are entitled to apply for a grant under the Voluntary Returns Scheme, which could give then access to £1500. Consideration should also be given to whether the returnee can obtain financial support from other sources such as (a) employment, (b) remittances from relatives abroad, (c) the availability of ad hoc charity or assistance from NGO’s.

Skills, education and experience: unskilled returnees who have been away from Zimbabwe for a substantial period of time may be at the greatest disadvantage, however a returnee may be expected to have regard to the informal sector, ie vending, street trading or home-based enterprises, which (depending on the circumstances) returnees may be expected to enter.

Finally, it is important to note that even where a returnee is expected to relocate to Harare or Bulawayo, CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 00059(IAC) itself states in its headnote:

“(8) Internal relocation from a rural area to Harare or (subject to what we have just said) Bulawayo is, in general, more realistic; but the socio-economic circumstances in which persons are reasonably likely to find themselves will need to be considered, in order to determine whether it would be unreasonable or unduly harsh to expect them to relocate”.

Fertile grounds for an asylum claim: demonstrating Zimbabweans in the UK have the Zim Government breathing fire

Thought all the hullabaloo over the “ incident” of 12 July 2019 had died down and we could all move on to the next internet drama, for drama it is that usually keeps the long suffering in the impoverished nation that is Zimbabwe entertained amid the never- ending social, economic and political woes plaguing that country.

Not content in retreating and allowing the respective ministers to lick their “ emotional wounds” with some measure of dignity behind closed doors, the Zimbabwean government has come out snarling, claiming not only that one of their own was “ assaulted” by demonstrating Zimbabweans in London on 12 July 2019, but also calling for the UK Government to take action against the demonstrators. On 16 July 2019, the Zimbabwean, Ministry of Information, Publicity & Broadcasting published the following on Twitter @InfoMinZW:

 Govt respects the right of its citizens to demonstrate peacefully but strongly objects to the use of violence. Govt of Zimbabwe calls on the Government of the United Kingdom to take all necessary measures to bring the perpetrators of the assault of the 12th of July 2019 to book

The statement is backed by over a minute long video basically reiterating the Government’s position and objections.

The stark reality therefore is that we have an incensed “ propaganda ministry” all the way over there in Zimbabwe calling for the “punishment” of demonstrating Zimbabwean citizens all the way over here in the UK. Whether or not the relevant UK authorities will be nudged into taking any action as a result is for present purposes neither here nor there.

In light of the  recent statements made by the Zimbabwean government, the issue is really no longer confined to just those particular demonstrators who were present on 12 July 2019, involved in conveying their greetings to Minister SB. Moyo. It is about how the Zimbabwean government has now targeted a particular class of Zimbabweans based in the UK, ie creating an obvious risk category in relation to those involved in political protests against it. The incident took place on 12 July 2019. The Zimbabwean government mulled over it over several days and not finding any “closure”, presumably as a collective, decided to issue its statement. If they had never been so, it is now without doubt that protesting Zimbabweans in the UK have become a particular focus of adverse attention of the ZANU(PF) government.

“All necessary measures” include  the taking of several actions on the part of the UK authorities. The Zimbabwean government is surely not also blatantly calling for the deportation of those involved in the “ meet and greet” of 12th July 2019 that may potentially be “removable”? It is in the public domain that the Zimbabwean government has an agreement with the UK government to “ repatriate ” those considered to be failed asylum seekers or without a basis of stay in the UK.

Where removable, the Zimbabwean government will not welcome such returnees with open arms.

We all know what happens when demonstrators and protesters exercise their rights in Zimbabwe. The events of 1 August 2019 and January 2019 speak for themselves: killing of innocent citizens; abductions; arbitrary detentions; brutality against dissenters; rapes and a hail of bullets.

Country policy and information note: opposition to the government, Zimbabwe, February 2019, relevantly states:

Demonstrations against the government

2.4.22 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. During the January 2019 demonstrations, there have been reports that security services used excessive force on protesters and those in the vicinity. Those perceived to have been in opposition to the government at this time have faced harassment, arrest and ill-treatment including assaults, gun-shot related injuries and at least 8 deaths. Further direct targeting of the opposition (and perceived opposition) including NGOs continued after the initial violence, through house raids, arrests and detentions

2.4.24 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 will depend on their profile, activities and past experiences with the authorities, with each case needing to be considered on its own facts”.

Protesters in the UK are attending demonstrations, not merely present but active in several respects, singing and verbally denouncing the ZANU(PF) government as they protest. On 12 July 2019 , several media reports were awash with news that a senior Zimbabwe government minister had been humiliated in the UK. He was called a thief for all to hear. The video evidence is not going away any time soon. The Zimbabwean government will not easily forget nor forgive.

The Home Office have on occasions refused asylum claims of genuine UK based Zimbabwean protestors on the basis that they have provided no evidence that the authorities of their country are aware of their activities in the UK nor that they could be identified, even if accepted that they have been politically active in the UK. The conclusion being that such claimants would not be at risk on return.

The case of YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360 states:

“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”.

It should now no longer be a struggle to show that UK based Zimbabwean protesters are known to be robustly active and anti ZANU(PF). A politically active asylum claimant need only point to the video evidence of 12 July, resultant media reports and now thanks to the Zimbabwean government, their recently published statement.

Iraq and Article 3 claims: Admin Court curbs overzealous attempts to override current country guidance caselaw

The Secretary of State has over the past few years been relentless in his pursuit of convincing the higher courts that there is some need or reason to depart from established country guidance caselaw on Humanitarian Protection and Article 3 claims originating from Iraq returnees.

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