Does the new country Information Note make it that much more difficult for Zimbabwean asylum claimants to succeed in their protection claims?

Posted on October 18, 2021 by alicemuzira Standard Reply

The Home Office has published a new Note, Country Policy and Information Note Zimbabwe: Opposition to government Version 5.0 September 2021, www.assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1018765/ZWE_CPIN_Opposition_to_the_government.pdf

In summary, the following can be gathered from the 59page document:

Human rights violations in Zimbabwe are carried out by state agents (police and army) and state proxies (ZANU-PF)
As regards the MDC-A and MDC-T factions, views from political analysts are that the ruling party created the surrogate opposition MDC-T to disturb the MDC-Alliance
Those at risk of persecution include MDC supporters, teachers, health professionals, journalists, students, lawyers and civil society activists
There has been a decline in the human rights situation under Emmerson Mnangagwa’s presidency
In relation to levels of human rights violations, there are no “very strong grounds supported by cogent evidence’ to depart from existing country guidance of CM(Zimbabwe)
the majority of protests were peaceful and no cases recorded excessive use of force against protesters in recent years
In relation to civil society activists and NGO’s, security authorities are suspicious of the motivations of CSOs and see their activities as a threat to national stability
As regards politicisation of food and other aid, this is not in and of itself serious enough by its nature and repetition to establish a claim to asylum
In relation to internal relocation, the guidance in CM (Zimbabwe) continues to govern internal relocation considerations

WHO CARRIES OUT HUMAN RIGHTS VIOLATIONS IN ZIMBABWE? – carried out by state agents (police and army) and state proxies (ZANU-PF)

The majority of human rights violations are carried out by state agents (police and army) and state proxies (ZANU-PF), although a significant minority of violations involve unknown perpetrators. During 2020 and the first half of 2021, the police were the main perpetrators of recorded violations. The median proportion of violations committed by the police has increased from 29% in 2019 to 51% at the mid-point of 2021. Over the same period, the proportion of violations attributed to ZANU-PF has fallen from 35% to 19%. It is likely that COVID-19 lockdown restrictions, combined with the role of the police in enforcing the restrictions, has contributed to this trend – Para 2.4.4
Where the person has a well-founded fear of persecution from the state or proxies of the state, they will not, in general, be able to avail themselves of the protection of the authorities- Para 2.5.1

MDC-A AND MDC-T FACTIONS: The ruling party created the surrogate opposition MDC-T to disturb the MDC-Alliance

The main opposition political party, the Movement for Democratic Change (MDC) has undergone a series of internal splits which began before the death of its leader Morgan Tsvangirai (in February 2018) and which continued after his death. The 2 current factions, the MDC-A and MDC-T, have engaged in infighting – Para 2.4.2

On 7 January 2021, The Africa Report, describing itself as ‘one of the leading news organisations on the continent’48 (published by Jeune Afrique Media Group) set out the consequences of the factional dispute for the MDC:

While the year 2020 will undoubtedly play an integral part in history – bringing the world to a halt as a result of the pandemic – Zimbabwe’s politics will go down as an historic year for the Movement for Democratic Change, once a united front, now split into two: MDC-Alliance led by Nelson Chamisa, and MDC-T, led initially by Thokozani Khupe and now by Douglas Mwonzora………….

‘The opposition is clearly facing a serious challenge from an authoritarian regime, the ruling party Zanu-PF, that hopes to crush and fragment the opposition, inevitably destroying multi-party democracy in Zimbabwe, says UK-based Zimbabwean political analyst Alex Magaisa.

‘“The ruling party created the surrogate opposition MDC-T to essentially disturb the MDC-Alliance. It is not a fight between factions in the opposition, but a fight by the ruling party against the opposition to dismantle it and move towards a one-party regime,” Magaisa tells The Africa Report…

Thabitha Khumalo, MDC-Alliance national chairperson, describes events that affected the opposition party in 2020 as the death of democracy in Zimbabwe. Zanu-PF found a willing partner in the MDC-T to destroy the bigger objective of the opposition in favour of individuals who were open to benefitting from such a system.

‘Khumalo says: “The MDC is working with the ruling party to stifle democracy in the country. Zanu-PF is motivated to dismantle the opposition, for them they would rather have a one- party state and they have found a willing partner through the MDC-T.”’- Para 11.1.4

WHO IS AT RISK OF PERSECUTION? -MDC supporters, teachers, health professionals, journalists, students, lawyers and civil society activists

The ruling party is intolerant of organisations or persons who speak out against the government. Members of opposition political parties, such as the MDC, and other opposition groups, including civil society activists, journalists and health professionals, have been arrested or assaulted- Para 2.4.3
Over the 2-year period between August 2019 and July 2021, the median percentage of victims of human rights violations recorded as having a known MDC-affiliation was 3.1%. Given that approximately 10% of Zimbabweans are members of the MDC and the MDC presidential candidate received 44% of votes cast in the 2018 election, the figure of 3.1% is likely to be an underestimate. The low proportion of recorded MDC-affiliated victims may be explained by a reluctance of victims to be identified as linked to the MDC-Para 2.4.16
In 2020, ZPP recorded 2,825 human rights violations. Given the large numbers of MDC supporters and members, compared against the relatively low number of recorded violations, the risk of being a victim of a violation based solely upon being a supporter or member of the MDC is very low- Para 2.4.18
However, violations against persons who are affiliated with the MDC do take place. Many of the reported arrests, abductions and assaults involve MDC leaders and activists with a significant profile-Para 2.4.19
In the case of teachers, in CM (Zimbabwe) the UT held that ‘Those who are or have been teachers require to have their cases determined on the basis that this fact places them in an enhanced or heightened risk category, the significance of which will need to be assessed on an individual basis.’ (paragraph 3(10))- 2.4.21
As well as teachers, other groups which have been critical of the government include: health professionals, journalists, students, lawyers and civil society activists. Many of the recorded incidents are linked to involvement in (or, in the case of journalists, coverage of) demonstrations protesting against pay, working conditions and living costs. Recorded violations include arrest, assault, detention and abduction – Para 2.4.22
Being a teacher, lawyer, journalist, health professional, student or civil society activist does not, in itself, establish a risk of persecution or serious harm. Each case must be considered on its individual merits. Factors to take into account include the person’s profile, activities, area of origin and proposed area of return. The onus is on the person to demonstrate that they face a risk of persecution- Para 2.4.23
The USSD human rights report covering events in 2020 noted: ‘There were reports of individuals arrested for political reasons, including opposition party officials, their supporters, NGO workers, journalists, civil society activists, and labor leaders. Authorities sometimes detained such individuals for one or two days and released them without charge. Political prisoners and detainees did not receive the same standard of treatment as other prisoners or detainees, and prison authorities arbitrarily denied visitor access to political prisoners. There were reports police beat and physically abused political and civil society activists while they were in detention. ‘Unlike normal criminal proceedings, which move from investigation to trial within months, prosecuting agents regularly took abnormally long to submit for trial cases involving members of the political opposition or civil society critics of the government. Hearings were sometimes scheduled when presiding judges were on vacation. Prosecutors in political cases were often “unprepared to proceed” and received numerous continuances. In many cases where authorities granted bail to government opponents, they did not conclude investigations and set a trial date but instead chose to “proceed by way of summons.” This left the threat of impending prosecution remaining, with the accused person eventually being called to court, only to be informed of further delays.’- Para 15.1.1
In December 2019, DFAT reported: ‘On the night of 14 September 2019, Dr Peter Magombeyi, the head of the Zimbabwe Hospital Doctors Association disappeared from his home. Dr Magombeyi subsequently reappeared on 20 September, after the government issued a statement of concern for his apparent abduction. Dr Magombeyi required ongoing hospitalisation after his return, with friends and colleagues alleging he had been poisoned during his abduction. Dr Magombeyi’s involvement in the ongoing industrial action by doctors and nurses through 2018-19… led to widespread allegations that his abduction was state-orchestrated. ‘The full facts of the recent abductions remain unclear, including the identity of the perpetrators. While the government’s statement of concern in relation to Dr Magombeyi is a positive development, the government has yet to fully demonstrate its commitment to apprehending and prosecuting those responsible for the abductions, or to preventing any further incidents.’ – Para 16.4.1
In February 2020, Newsday reported: ‘Six parents and teachers in Mutoko were arrested on Thursday after staging a protest against the deterioration of standards in the education sector, before handing a copy of their grievances to government. ‘The protest, which occurred at Mutoko Centre, shocked many as it was one of the few to be held within a Zanu PF stronghold. ‘Some of those arrested were members of the Amalgamated Rural Teachers Union of Zimbabwe.’- Para 16.4.2
A September 2020 ZHRNGOF report which focused on COVID-related human rights violations stated: ‘Not less than 35 nurses were arrested by State security agents for taking part in a strike over poor salaries and for demanding COVID-19 allowances during the lockdown. The disgruntled nurses were, however, released without charge following the intervention of the hospital leadership. The striking nurses were rounded up at Mutare General Hospital on June 19 [2020] and taken to Mutare Central Police Station.’- Para 16.4.3

DECLINE IN HUMAN RIGHTS SITUATION -decline in human rights situation under Emmerson Mnangagwa’s presidency

In December 2020, the International Crisis Group produced a briefing based on a range of sources: ‘Three years after a coup ended Robert Mugabe’s rule, the situation in Zimbabwe has gone from bad to worse, as political tensions mount, the economy falls apart and the population faces hunger and COVID-19. Having signalled a desire to stabilise the economy and ease repression, President Emmerson Mnangagwa has disappointed. The state is arresting opponents who protest government corruption and incompetence. Meanwhile government-allied businessmen are tightening their grip on what is left of the economy, while citizens cope with austerity measures and soaring inflation. Violence and lawlessness are on the rise. Fearing major unrest, or even another coup sparked by ruling-party divisions, Zimbabwe’s most important neighbour, South Africa, is ditching its tolerant posture toward Harare.’ – Para 3.1.2
In a January 2021 publication covering the events of 2020, Human Rights Watch (HRW) reported ‘Zimbabwe’s human rights situation continued to decline in 2020 under Emmerson Mnangagwa’s presidency. Unidentified assailants, suspected to be state security agents, abducted and tortured more than 70 critics of the government during 2020. Security forces also continued to commit arbitrary arrests, violent assaults, abductions, torture and other abuses against opposition politicians, dissidents and activists.’ – Para 3.1.3
In a March 2021 report covering the events of 2020, Freedom House stated: ‘The Zimbabwe African National Union–Patriotic Front (ZANU-PF) has dominated Zimbabwean politics since independence in 1980, in part by carrying out severe and often violent crackdowns on the political opposition, critical media, and other sources of dissent. President Emmerson Mnangagwa took power in 2017 after the military intervened to remove longtime president Robert Mugabe amid factional divisions within the ruling party. However, the new administration has largely retained the legal, administrative, and security architecture it inherited from the Mugabe regime, and it has stepped up repression to consolidate its authority- Para 3.1.5
In July 2021, the UK Government’s Foreign, Commonwealth & Development Office (FCDO) published its annual report (covering the events of 2020) and stated: ‘The human rights situation in Zimbabwe did not improve in 2020. The human rights monitoring group, Zimbabwe Peace Project, recorded 2,825 human rights violations in 2020, similar to the total in 2019. The majority of violations were due to heavy-handed policing of COVID-19 regulations by the Zimbabwe Republic Police, as well as targeted abductions, arbitrary arrests, and detentions linked to planned protests in July.’- Para 3.1.6

LEVELS OF HUMAN RIGHTS VIOLATIONS- no “very strong grounds supported by cogent evidence’ to depart from existing country guidance of CM(Zimbabwe)

In order to understand the level and nature of human rights violations in Zimbabwe, and also to identify trends over time, this CPIN has drawn upon data collected by two organisations: the Zimbabwe Peace Project (ZPP) and the Armed Conflict Location & Event Data Project (ACLED)- Para 5.1.1
ZPP and ACLED have been chosen for several reasons. Firstly, their information is publicly available and easily accessible. Secondly, their approach to cataloguing data is different, thereby widening the type of analysis which can be performed. Most importantly, both sources provide a systematic log of violations and events over a continuous time period. (ZPP produces consecutive monthly reports, while ACLED logs events daily). This means that the information collected by the two sources is more quantifiable than other pieces of evidence, such as reports and articles, which are often piecemeal in coverage. The ZPP and ACLED data can therefore be used alongside the qualitative evidence to provide a more complete picture of the current situation and also provide context to how the situation has changed over time- Para 5.1.2
The level of human rights violations across Zimbabwe has remained relatively constant throughout 2019, 2020 and 2021. The Zimbabwe Peace Project (ZPP), a local NGO, recorded 2,790 violations in 2019, 2,825 violations in 2020 and 1,264 violations during the first 6 months of 2021, which is less than half of the 2019 and 2020 totals. Recorded violations range from harassment/intimidation (the large majority) to assault, unlawful detention and unlawful killing – Para 2.4.5
In the case of CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 00059 (IAC), heard in October 2012 and promulgated in January 2013, (which modified the Country Guidance in EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC), heard in October 2010/January 2011 and promulgated in March 2011), the Upper Tribunal found that there was significantly less politically-motivated violence in Zimbabwe than had been described in the earlier country guidance case of RN (Returnees) Zimbabwe CG [2008] UKAIT 00083, heard by the Asylum Immigration Tribunal in September/October 2008 and promulgated in November 2008, which followed the violently contested 2008 national elections – Para 2.4.10
ZPP data indicates that the recorded level of human rights violations in 2020 and 2021 is significantly lower than the level recorded in 2008 (when RN was heard), lower than 2010 (when EM was heard) and lower than 2012 (when CM was heard). The ZPP recorded a total of 2,825 human rights violations in the most recent full year for which data is available (2020). This is just over a quarter of the 10,703 incidents in 2010 and just over half of the figure of 5,096 in 2012. The 2020 figures are also much lower than the 23,755 incidents recorded in 2008. During the first half of 2021, the ZPP recorded 1,264 violations, which is less than half of the 2020 total of 2,825- Para 2.4.11
The overall trend of human rights violations documented by ZPP is broadly consistent with information from ACLED. The number of events recorded by ACLED during the same 4 years noted above (2008, 2010, 2012 and 2020) are 775, 194, 202 and 162, respectively. Whilst neither ZPP nor ACLED are likely to record every human rights violation or every event in any particular year, the data provides an indication of the scale and nature of violence annually and is comparable against itself year-on-year, so provides an indication of trends over time. The general trend is of a steep decline in incidents after 2008, followed by a more gradual decline or plateauing of incidents between 2009 and 2020. While spikes in violence do take place – such as during the fuel protests in 2019 – this has not affected the overall trend – Para 2.4.12
The ZPP data indicates that for each year, 2014 to 2020, inclusive, the total number of human rights violations recorded was lower than that for 2011 (when EM was promulgated) and also lower than 2013 (when CM (Zimbabwe) was promulgated). The ACLED data fluctuates between 2011 and 2020 but the overall trend is of little change, with the number of events recorded in 2020 falling in between the figures for 2011 and 2013- Para 9.1.3
Given the absence of ‘very strong grounds supported by cogent evidence’ to depart from existing country guidance, (as per paragraph 47 of SG (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 940 (13 July 2012)) the findings of CM (Zimbabwe) continue to apply:……- Para 2.4.20

PROTESTS- the majority of protests were peaceful and no cases recorded excessive use of force against protesters in recent years

While some protests were organised by the MDC, or had the party’s support, protests were also organised by other groups or organisations – Para 12.1.1

Mid-year data for 2021 has not been included in the graph. For the 6-month period between 1 January 2021 and 30 June 2021, a total of 16 protests were recorded by ACLED. This is less than a third of the total number of protests recorded in 2019 (52) and 2020 (52). Of the 16 protests, 13 were peaceful, 3 involved an intervention and there were no instances of excessive force being used against protesters- Para 9.3.4

A CPIT review of the graph, together with the mid-year 2021 figures, indicates several points:

There has been a trend towards an increasing number of protests over the period 2010 to 2020. The total number of protests recorded in 2010 and 2020 were 19 and 52, respectively, with the number of protests peaking at 97 in 2015.
The data also shows that for each year in the 11-year period 2010 to 2020, the majority of protests were peaceful and – with the exception of a spike in 2011 – the percentage of protests in which the state intervened remained relatively constant at about 30%.
In the 2 most recent full years, 2019 and 2020, and also the mid-year period between 1 January 2021 and 30 June 2021, there were no cases recorded by ACLED of excessive use of force against protesters – Para 9.3.5

In July 2021, the FCDO’s annual report (covering the events of 2020) stated: ‘In July [2020], authorities took pre-emptive and heavy-handed action to prevent large-scale protests. These were fuelled by growing frustration following corruption scandals, imploding healthcare provision, and the collapsing economy. The authorities detained opposition politicians and journalists for encouraging participation in such protests, and cases against journalist Hopewell Chin’ono, and opposition politicians Job Sikhala and Jacob Ngarivhume, were continuing at the end of the year. The Government continued to use the legal system to silence critics, suppress opposition and discourage protest.’- Para 12.1.9

On 24 July 2020 the UN Office of the High Commissioner for Human Rights (OHCHR) issued a statement: ‘We are concerned at allegations in Zimbabwe, which suggest that the authorities may be using the COVID-19 pandemic as a pretext to clamp down on freedom of expression and freedom of peaceful assembly and association… While recognizing the Government’s efforts to contain the pandemic, it is important to remind the authorities that any lockdown measures and restrictions should be necessary, proportionate and time[1]limited, and enforced humanely without resorting to unnecessary or excessive force.’ Para 13.1.2

In the August 2021 edition of its monthly monitoring report, ZPP noted: ‘In Muzarabani [Mashonaland Central], police allegedly continued to deny the MDC Alliance clearance to hold meetings due to lockdown regulations but Zanu PF was holding its meetings regularly without disturbances.’ – Para 13.1.6

CIVIL SOCIETY ACTIVISTS & NGO’S- Security authorities are suspicious of the motivations of CSOs and see their activities as a threat to national stability

In December 2019, DFAT reported: ‘Unconfirmed statements by government officials put the number of [civil society organisations] CSOs operating in Zimbabwe at over 20,000. CSOs conduct activities on a wide range of social, cultural, political, and economic issues. A number of domestic and international NGOs investigate and publish their findings on human rights cases… Security authorities reportedly remain suspicious of the motivations of CSOs and see their activities as a threat to national stability, particularly in the wake of the January 2019 fuel protests. Following these protests, authorities charged an unprecedented 22 people (including prominent CSO leaders and activists) with subverting a constitutional government, which carries a penalty of up to 20 years’ imprisonment. At least 10 individuals face treason charges, for which the death penalty is applicable… After the aborted August 2019 protests in Harare, authorities reportedly arrested 128 activists in Harare and an undisclosed number nationwide.’ – Para 16.3.1 I
In a March 2021 report covering the events of 2020, Freedom House stated: ‘NGOs face restrictions under laws including the CLCRA and the Private Voluntary Organisations Act, despite rights laid out for them in the constitution. NGO leaders and members faced detentions, abductions, and continued scrutiny in 2020.’- Para 16.3.2
Online news site Bloomberg reported on 4 August 2020: ‘Protests against economic turmoil, arrests and human-rights abuses in Zimbabwe have moved online with a hashtag that’s plays on the #BlackLivesMatter movement. The #ZimbabweanLivesMatter tag started after security forces blocked a street demonstration last week… President Emmerson Mnangagwa labeled [sic] the planned street protests an “insurrection” meant to topple his administration. In a televised speech on Tuesday, he said “dark forces” within and outside the country were undermining economic recovery. “The bad apples that have attempted to divide our people and to weaken our systems will be flushed out,” he said.’ – Para 16.3.3
In an address to ZANU-PF members on 14 July 2021, reported by the government-owned Herald news site, President Mnangagwa said: ‘As the election season unfolds, we are observing a notable number of NGOs diverting from their operational mandates to delve into political matters, that amounts to interference in the internal affairs of our sovereign country. ‘My Government will not brook any such disregard for our laws and will proceed to de-register all organisations found in the wrong.’- Para 16.3.8

POLITICISATION OF FOOD AND OTHER AID- not in and of itself serious enough by its nature and repetition to establish a claim to asylum

Incidents of partisan distribution of aid continue to take place and ZPP recorded a number of cases of politically-motivated restrictions on access to food and other aid. However, the number of recorded incidents is low, with a total of 270 incidents across Zimbabwe in 2019 and 258 in 2020, largely in rural areas. Incidents of food and aid violations in Harare and Bulawayo are rare. In 2019, 95% of food and aid violations took place outside of Harare and Bulawayo. In 2020 this figure was 96%. There are also processes in place to lodge objections against the unfair distribution of aid-Para 2.4.24
Such treatment would not in and of itself be serious enough by its nature and repetition to establish a claim to asylum – Para 2.4.25
A March 2021 report by ZHRNGOF and ZPP stated: ‘The ruling party ZANU-PF exerts undue influence over local government structures, such as Provincial Administrators, District Administrators and the Department of Social Welfare, which are involved in the distribution of food aid at local levels. This opens food aid distribution processes to political interference from ruling party functionaries such as local party leaders and activists, as well as war veterans and youth militias aligned to the party. The partisan control and distribution of aid enables ZANU-PF to bolster its electoral support whilst also punishing villagers who voted for opposition councillors. This significantly undermines the right to food for people who are perceived to be members or supporters of the opposition.’ – Para 14.1.6
And: ‘There are mechanisms in place to handle complaints from people who have grievances about the distribution of food aid, including handling complaints about the partisan distribution of aid. There are also monitoring mechanisms put in place to check for partisan distribution of aid, but this has somehow not worked efficiently as shown in the discussions above. On the government side, there are monitoring teams from the national, provincial and district levels who are supposed to monitor food aid distribution and to investigate complaints raised at the respective ward distribution centres. District social welfare departments also handle and investigate complaints, but this has not been very successful given the overbearing influence of ZANUPF structures over local government structures, as discussed above. There are instances where people who have been discriminated against receiving food aid on partisan lines have raised complaints to local social welfare officers and they were ultimately given their food aid packages. But, in most instances, affected villagers choose not to complain for fear of being victimized by either village heads or ZANU-PF activities in their communities. ‘On the other hand, NGOs have more effective monitoring systems and complaints handling (feedback) mechanisms that they use before, during and after food distribution exercises. Most NGOs have established help desks in food aid distribution areas which are manned by their field officers. They also set up suggestion boxes and toll-free numbers where aggrieved villagers can lodge complaints anonymously. The NGO field teams collect the complaints and they go on to investigate them. If the teams find out that there are villagers who have not been included on beneficiary lists, they go on to correct the anomaly ensure that deserving villagers receive their food aid packages… ‘The NGO monitoring and complaints mechanisms are effective in terms of providing remedies and redress to people discriminated against during food aid distribution. But they can only work if the affected people are confident enough to use the mechanisms and they are not afraid of being victimized after they raise complaints.’- Para 14.1.7

INTERNAL RELOCATION- guidance in CM (Zimbabwe) continues to govern internal relocation considerations

In CM (Zimbabwe), restating EM, the UT held:

‘The issue of what is a person’s home for the purposes of internal relocation is to be decided as a matter of fact and is not necessarily to be determined by reference to the place a person from Zimbabwe regards as his or her rural homeland. As a general matter, it is unlikely that a person with a well[1]founded fear of persecution in a major urban centre such as Harare will have a viable internal relocation alternative to a rural area in the Eastern provinces. Relocation to Matabeleland (including Bulawayo) may be negated by discrimination, where the returnee is Shona.

‘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.’ (paras 3(7) and (8))- Para 2.6.2

In summary:

In general, it is unlikely that a person with a well-founded fear of persecution in a major urban centre, such as Harare or Bulawayo, will reasonably be able to relocate to a rural area in the eastern provinces
In general, internal relocation from a rural area to Harare or Bulawayo is reasonable. In the case of the Shona ethnic group, relocation to Matabeleland (including Bulawayo) may not be reasonable, as they may face discrimination.
In all cases, the socio-economic circumstances of relocation need to be considered to decide whether relocation would be unreasonable or unduly harsh -Para 2.6.3

Conclusion

As always, each asylum claim will be decided having regard to individual circumstances.

Despite a current reported reduction in the levels of human rights violations in Zimbabwe, in light of the repressive nature of the regime, its intolerance of criticism or expression of other political affiliation, a claim for protection may succeed where a claimant can establish on the basis of some or all of the following that they:

have a well-founded fear of persecution for a Convention reason
are a critic or are perceived as such by the regime
are an active member of the opposition ( MDC-A faction) or perceived as such
are involved in protest against the regime
belong to a profession that falls within a risk category as above
will be of adverse interest to state agents
will be identified on arrival at the airport
will be interrogated or detained and subject to ill treatment at the airport and are unable to internally relocate

Don’t give up! Zimbabwean removal deferred within 48hours of instructions

Posted on July 19, 2021 by alicemuzira Standard Reply

Four detailed statements later, five sets of representations, numerous discussions with claimant’s wife, removal has now been referred without the need for any court proceedings.

Instructed late Saturday afternoon, 17 July 2021. By Monday, 2.45pm removal had been deferred for a claimant who has been here for 20years , with British children, appeal rights exhausted and subject to a deportation order.

Perseverance, perseverance, perseverance. Research, research and even more research. Above all reflection and strategization. And absolutely no sleep for 24hours.

I encourage claimants, legal representatives and campaigners not to give up!

Zimbabwean Embassy re-documentation interviews: How the practice has led to a grant of refugee status

Posted on June 24, 2021 by alicemuzira Standard Reply

Three weeks following written notification from the Home Office that leave as a refugee had been granted, a shiny new BRP card has just been received.

It has been a battle lasting two years, but finally the claimant has been recognised as a refugee, achieving vindication following their public outcry that the practice the Home Office had adopted, working together with Zimbabwe Embassy officials, exposed them to persecution on return to Zimbabwe.

Much has been said in the media since 2018 regarding the Home Office practice of permitting Zimbabwean Embassy officials access to undocumented Zimbabweans in the UK. A few blog articles delve into the effects of this practice:

The Home Office’s general position in response to refugee sur place claims arising out of Zimbabwean Embassy re-documentation interviews

An undocumented Zimbabwean claimant may seek to put forward a fresh claim for asylum arguing that following Home Office action in facilitating a re-documentation interview with Embassy officials, the consequence is that:

he has been exposed to an increased/enhanced risk on return to Zimbabwe;
he will be identified as a person who has claimed asylum in the UK;
he will have an anti – regime stance imputed to him; and
he will be viewed as someone unable to demonstrate loyalty to the Zimbabwean regime.

The Home Office’s general responses to such claims includes the following:

Interviews to obtain the information required for Emergency Travel Documents (ETD) are a common practice of the Home Office.
The Home Office regularly arranges such events, both in person and over the telephone, in order to facilitate the removal of individuals, who have no leave to remain, from the United Kingdom to their home country.
ETD interviews are purely to establish nationality of a subject. They are mandatory part of the returns process and conducted for a large majority of countries when seeking to return those with no legal right to remain in the UK
The ETD would be issued by the Zimbabwean authorities. It does not necessarily follow that there is a reasonable likelihood that the individual will be at risk on return.
No evidence has been provided to support the claim that the Home Office may have provided details of the claimant’s asylum claim to the Zimbabwean officials.
Upper Tribunal country guidance has found that an individual would not be at risk on return to Zimbabwe, as failed asylum seeker or as a returnee from the United Kingdom.

How to counter

Whatever else submissions were advanced by the recently recognised refugee, their fresh asylum claim arose directly out of being subjected to a mandatory re-documentation interview with Zimbabwean Embassy officials.

Such an interview was at the behest of the Home Office.

The Court of Appeal in MS (Zimbabwe) v Secretary of State for the Home Department [2021] EWCA Civ 941 (22 June 2021), observed that the Upper Tribunal in that case was prepared to accept that Zimbabwe, ‘remains a society where brutality and human rights abuses continue to take place”.

That is the starting point when seeking to emphasise that subjecting potential returnees directly to agents of such a brutal regime for prior “vetting” exposes them to risk on return.

What however must be addressed by the claimant’s statement, the written representations and supportive documentary evidence, is exactly how and why it is being said that particular claimant will be at risk on return following such an interview.

A Subject Access Request may need to be obtained. It is important to request a copy of the ETD application package that was given by the Home Office to the Zimbabwean Embassy official either in advance of the interview or on the day of the interview itself.

As matters progress, a relevant and appropriate country expert may(funding permitting) need to be instructed.

Are re-documentation interviews still being rolled out?

A relevant question currently might be whether Zimbabwe Embassy re-documentation interviews are still being rolled out by the Home Office.

In early May 2021, an undocumented Zimbabwean was provided a standard letter requiring that they provide information and documentary evidence to establish their nationality and identity to the Home Office at an appointment. The form of this letter is provided to persons of any nationality who no longer have pending representations or claims and are therefore liable to removal or deportation. Prior to the onset of the Covid-19 pandemic, this “first stage” of the re-documentation processes would have ordinarily been followed up by a further appointment to enable an interview with Embassy officials.

It currently seems since early 2020, following announcement of the first lockdown, that Embassy interviews with undocumented Zimbabweans have not been taking place. Indeed, generally across the country, some individuals of different nationals subject to reporting requirements have had these conditions temporarily suspended in light of the pandemic.

Nonetheless, the Country Returns Guidance: 2021 still indicates the following in relation to the ETD application process relating to Zimbabwean returnees:

“All ETD applications should be submitted to the Returns Logistics Team 1.

A mandatory face to face interview will then be arranged through RL Country Liaison and Documentation team 1. This will be through interview schemes at IRC’s, Reporting Centres and prisons. Interview outcomes will be notified via CID.
Only voluntary cases can be interviewed at the High Commission in London. In such cases the ETD application should be signed by the subject and submitted direct to the HC. RL team 1 will arrange an interview”.

Mandatory face- to-face interviews therefore continue to be the practice to be followed to enable the issue of an ETD.

Following lifting of lockdown, undocumented returnees may find themselves face- to-face with a Zimbabwean Embassy official, subject to a mini interrogation and being prompted to speak a language other than English( i.e Shona or Ndebele). It is important immediately thereafter for affected individuals to re-visit their case and circumstances so as to ascertain whether they are in a position to put forward a fresh claim for asylum.

Revocation of Refugee Status: Reliance on submitted country expert report not sufficient to depart from CM(Zimbabwe) says Court of Appeal

Posted on June 23, 2021 by alicemuzira Standard Reply

Is MS (Zimbabwe) v Secretary of State for the Home Department [2021] EWCA Civ 941 (22 June 2021) entirely unwelcome “bad news” for Zimbabwean asylum claimants in the UK, or

does it merely maintain the status quo in refusing to depart from CM (EM country guidance: disclosure) Zimbabwe CG [2013] UKUT 59 (IAC)?
in refusing to depart from CM (EM country guidance: disclosure) Zimbabwe CG [2013] UKUT 59 (IAC), is the decision in MS(Zimbabwe) merely reflective of the particular evidence that was before the Upper Tribunal and Court of Appeal?
is there room for other categories of Zimbabwean claimants( i,e those not in MS’s position) to continue to seek protection in the UK, without being restricted to showing a “significant MDC profile”?

Background

MS arrived in the United Kingdom in 2004, when he was 14. He had indefinite leave to enter to join his mother. She had been recognised as a refugee after a successful appeal against the Secretary of State’s decision to refuse her claim for asylum. MS’s mother had been recognised as a refugee because of her actual or imputed political opinion as a supporter of the Movement for Democratic Change (‘the MDC’). When she applied for asylum, even low-level supporters of the MDC were at risk. MS’s refugee status was linked to his mother’s. MS’s father had stayed in Zimbabwe. He died in 2012. MS went back to Zimbabwe for the burial. MS also returned for about ten days in 2015, with his two sisters, to visit their father’s grave.

On 11 June 2012, MS was convicted, on his plea of guilty, of a count of robbery, for which he received a sentence of eight years’ imprisonment.

The Secretary of State decided to revoke his refugee status and to deport him to Zimbabwe. The First Tier Tribunal(FTT) allowed MS’s appeal from the decision of the Secretary of State to revoke his refugee status and to deport him to Zimbabwe. However the Upper Tribunal allowed the appeal of the Secretary of State from the decision of the FTT, deciding that the Refugee Convention had ceased to apply to MS.

MS’s reliance on a country expert report

It was argued on MS’s behalf that the Upper Tribunal failed to give ‘proper consideration to crucial aspects of expert evidence’ about the risk faced by people who cannot show their loyalty to ZANU PF.

The appeal was noted by the Court of Appeal to raise a short point about the Upper Tribunal’s approach to the evidence in the Report.

The following arose in relation to the Report:

It was contended that the Upper Tribunal had failed, without explanation, to adopt the conclusions in paragraph G of the Report’s ‘Brief Summary of Findings, which stated:‘With due consideration to the profile of [MS], the evidence available to me, and my own in-country knowledge, it is my opinion that it is plausible that [MS] will be identified as a person of adverse interest to SSF and a person with an imputed political opinion. It is my opinion that those who are identified at the airport as being of sufficient interest to merit further interrogation are at real risk of harm. As a person who has benefitted from refugee status in the UK and is the son of a political refugee, it is plausible that [MS] is at risk of persecution by the CIO on his arrival at Harare International Airport, including arbitrary arrest, detention, torture and ill-treatment as a result of his imputed political opinion and his inability to demonstrate loyalty to ZANU PF’.
The purpose of the Report was to support MS’s claim that he had a fear of persecution on Convention grounds if he were deported to Zimbabwe.
It was noted that the Report had two premises: MS will have a political opinion imputed to him, and he will not be able to show that he is loyal to ZANU PF.
Those representing MS submitted on his behalf that a premise of the Report was that he had no personal political profile, but that it showed that the state now targets all those who are not supporters of ZANU PF.

Issues of concern noted by the Court of Appeal in relation to the Report

The Court of Appeal raised the following issues concerning the expert Report:

The first two sentences of paragraph 56 of the Report stated that the police were out ‘in full force’ in Bulawayo and Harare on 30 July 2020. They blocked streets and they did ‘random searches’ of commuters. The Court noted that those representing the Secretary of State pointed out that no context for this incident was provided and no checkable source.
Paragraph 57 of the Report stated that on 2 August 2020, an armed convoy of the police and the army drove through the Central Business District in Bulawayo, and prevented the people who lived there from buying food or using cash points. The source for this, referred to in a footnote, was ‘Telephone interviews 2 August 2020 with research respondents who are also residents of suburbs of Bulawayo’.
The source for the second part of paragraph 57 of the Report was a telephone interview with a ‘former Scottish police constable who was director of a charity in Zimbabwe’, on 17 October 2018. The person was not identified. The Court stated that source was relied on for this sweeping assertion: ‘The current country conditions in Zimbabwe leave human rights campaigners, government critics, political opposition, those suspected of being members of the political opposition, or those unable to demonstrate affiliation with ZANU PF, at higher risk of state violence including torture, rape and death than was the case in 2007/2008, or, indeed, since 1999’.
In paragraph M, the ‘Brief Summary’ asserted that ‘having to demonstrate loyalty to ZANU PF to obtain food aid is country wide and not restricted to rural communities.’ MS was said to be ‘at risk of serious harm and persecution if he is unable to demonstrate loyalty to ZANU PF in exchange for food aid. This is contrary to paragraph 29 of the Home Office Notice of Decision of 13 December 2013.’ The Court of Appeal noted that this sweeping assertion was based on one example: an incident which as described in the Report when, on 10 July 2019, a ZANU PF activist demanded, before giving food aid to villagers (in one particular village) that they showed that they were loyal to ZANU PF. The Court also observed that it had not been able to find a relevant Home Office decision dated 13 December 2013 in the papers for MS’s case, which led the Court to wonder whether this paragraph had been copied from a report in a different case.
Paragraph 47 of the Report referred to an attack by security forces on an MDC MP in Bulawayo in August 2019. That attack was said to be ‘contrary to the claims of paragraph 30 of the Home Office Notice of Decision dated 13 Dec 2018, which states that “the country guidance caselaw demonstrates that even high-profile MDC members face no risk of persecution in Bulawayo. It is considered therefore that you could settle in Bulawayo and your claimed interaction with Mr Ncube six years ago would not place you at risk of persecution”‘. The Court of Appeal enquired of the Secretary of State whether there was any decision by the Secretary of State in MS’s case dated 13 December 2018, and whether MS had ever claimed to have had an interaction with Mr Ncube. It was noted that the answer to both questions was ‘No’. Those representing the Secretary of State offered the explanation that this paragraph had been cut and pasted from a report in a different case.
Paragraph 74 of the Report cited two sources (the dates of which were not obvious in the footnotes) for a claim that:‘The CIO meet flights arriving in Harare when British Immigration officers’ [sic] or their representatives shand [sic] over failed asylum seekers to their Zimbabwean counterparts. Over the past 15 years there have been reports of failed asylum seekers being victimised, including being beaten upon their arrival at Harare Airport. It is my opinion that the country situation has not changed since the reports dating back to 2002 and the CIO have continued to detain asylum deportees at Harare Airport and interrogate them’.
The Court observed that the reasoning in paragraph 74 seemed to be the basis of the expert’s view, expressed in Report, that ‘the current country conditions indicate that it is plausible that on his return to Zimbabwe [MS] may be identified as a person with an imputed political opinion in line with that of his mother.’

Relevance of country guidance case of CM(Zimbabwe) and the Upper Tribunal’s response to the submission that it be departed from

The Court of Appeal noted that the Upper Tribunal took the decision in CM (EM country guidance: disclosure) Zimbabwe CG [2013] UKUT 59 (IAC) (‘CM‘) as its starting point.

In CM(Zimbabwe) the Upper Tribunal confirmed earlier country guidance that there had been ‘durable’ changes since the previous country guidance, RN (Returnees) Zimbabwe CG [2008] UKAIT 00083. The Upper Tribunal in MS ‘s appeal was noted to have cited the guidance in CM extensively.

The following was considered by the Court:

In sum, the Upper Tribunal decided in CM(Zimbabwe)that there was significantly less political violence than in 2008. The mere fact that a person was returning from the United Kingdom as a failed asylum seeker, would not, if he had no significant MDC profile, expose him to a risk of having to prove his loyalty to ZANU PF. It would be otherwise if a person with no connections with ZANU PF returned to a rural area (other than Matabeleland) after a long absence in the United Kingdom. The situation was not uniform in rural areas. A person returning to Matabeleland was, in general, unlikely to face difficulty even if he supported the MDC. A person returning to a low or medium density area in Harare was unlikely to face significant difficulties. If he returned to a high density area, in general, a person without ZANU PF connections would not face difficulties, such as a loyalty test, unless he had a significant MDC profile. A person returning to Bulawayo would face no difficulty, even if he had a significant MDC profile.
The Upper Tribunal in MS’s appeal described, by reference to paragraphs 11 and 12 of the Upper Tribunal’s Guidance Note 2011 No 2, the circumstances in which it could depart from country guidance.
The Upper Tribunal recorded MS’s submission that the background evidence and the expert Report were ‘very strong grounds supported by cogent evidence’ for departing from CM(Zimbabwe).
The Upper Tribunal in MS’s appeal accepted that the Expert had expertise in ‘Zimbabwean social and political matters’. The Upper Tribunal was noted to have given ‘due weight’ to her opinions. Her view was that the current situation was comparable to that considered in RN (Returnees). Those at risk were not simply those who are seen to support the MDC, but also those who cannot show positive support for ZANU PF, or alignment with the regime.
In considering MS’s appeal, the Upper Tribunal however rejected the claim that the current political climate was comparable with the situation [in RN (Returnees)], and that anyone who cannot demonstrate positive support for ZANU PF or alignment with the regime is at risk in Zimbabwe.
Although the Upper Tribunal accepted that there was evidence of a ‘spike in violence’ around the time of the 2018 elections, and of a crackdown on opposition leaders, there was, however, no evidence that the decline in violence reported in CM(Zimbabwe) had reversed in the previous six years. Spikes in violence at election times were nothing new in Zimbabwe, and did ‘not necessarily affect the overall downward trend’. They were not inconsistent with a finding of ‘significant and durable change in Zimbabwe’.
The Upper Tribunal described some of the submitted material and concluded that ‘The evidence is not necessarily indicative of ZANU PF politically motivated human rights violations against simple supporters of the opposition or MDC’.
The Upper Tribunal stated that 16 years after he had left Zimbabwe, no-one would have any particular memory of or interest in MS by reason of his relationship with his mother. He had returned to Zimbabwe in 2012, and he and his sisters, in 2015. There was no evidence that they had been targeted in any way because of an imputed political reason, or because of their relationship with their mother.

Court of Appeal’s reasoning and conclusions

In dismissing MS’s appeal, the Court of Appeal concluded that:

A Tribunal of fact is not bound to accept expert evidence if it disagrees with that evidence. That is so even if the expert witness is not cross-examined. The tribunal of fact is entitled, and obliged, to examine the analysis and reasoning in the expert’s report. It is obliged to reach its own conclusions on any questions of fact, or mixed questions of fact and law, which it must decide in order to determine a case. It may accept guidance from an expert on those questions, but is not obliged to accept it.
The Upper Tribunal was not obliged to accept the conclusions in paragraph G of the Brief Summary, just because they were the conclusions of an experienced expert. The Upper Tribunal was entitled, and obliged, to ask itself whether those conclusions were rational conclusions, and whether, and if so, to what extent, they were supported by the material cited in the Report. The more inscrutable an expert’s conclusion is, the less likely it is that a tribunal of fact will be obliged to accept it.
The Upper Tribunal was entitled to decide that old reports which pre-dated CM(Zimbabwe)did not amount to cogent evidence enabling it to depart from CM. The Upper Tribunal was plainly entitled to reject paragraph G, to the extent that it suggested that MS would be identified at Harare Airport as a person with an MDC profile.
The Upper Tribunal was entitled, and obliged, to ask itself what material in the Report supported a general proposition that a person generally who cannot show that he is loyal to ZANU PF, or a person who, in particular, needs food aid, and who cannot show that he is loyal to ZANU PF, is at risk of ill treatment in Zimbabwe. On analysis, paragraph 91 of the Report was the only material which supported that proposition. The Upper Tribunal was entitled to conclude that that material did not support the general proposition that a person who cannot show his loyalty to ZANU PF is at risk of ill treatment in Zimbabwe
There was no suggestion in the Report that MS would be entitled to the protection of the Convention if the only risk he would be exposed to in Zimbabwe would be a risk of random state violence which was not connected with, or caused by, his political profile (either, an MDC profile, or an inability to show, when required, his loyalty to ZANU PF). Ill treatment which is meted out randomly is not connected with, or caused by, a particular political profile, or by the absence of political profile. It is simply not related to the political profile of its victims in any way.
The Upper Tribunal recognised that there were examples of random attacks, and was entitled and right to say that a common thread to many of the incidents referred to by the expert is that the attacks were upon supporters of the political opposition, leaders, and those perceived as critics of the government.
Paragraphs 56 and 57 of the Report were the foundation for MS’s argument that the Upper Tribunal was obliged to depart from CM(Zimbabwe). This material did not meet the relevant test. It was not cogent, because it was wholly irrelevant to the question whether or not MS continued to need the protection of the Convention.

The Court of Appeal dismissed MS’s appeal.

Still seeking to argue a departure from CM(Zimbabwe)?

Where the decision in MS(Zimbabwe) is considered substantially reflective of the particular evidence that was before the Upper Tribunal and Court of Appeal, MS(Zimbabwe) does not signal the end of the argument that CM(Zimbabwe) should be departed from (and also that new country guidance caselaw should be promulgated).

What then should properly researched and sourced background evidence address?

Having regard to the Court of Appeal’s judgment in MS(Zimbabwe), the answer is clear with reference to the basis upon which the Upper Tribunal dismissed MS’s appeal and from the submissions put forward on behalf of the Secretary of State.

There is a need therefore:

to show evidence of attacks on people who are not just political activists, journalists, or active supporters of the opposition.
To show much much more than just two incidents (see paragraphs 56 and 57 of the Report above) on seeking to establish cogent evidence to justify a departure from the country guidance
in relation to evidencing random violence against civilians by the government, where possible by way of an expert report, to analyse trends in violence since CM(Zimbabwe). Show evidence (if possible) that violence has increased since CM(Zimbabwe) to the levels which existed in 2008. Show the incidents are supported by checkable sources.

What MS(Zimbabwe) leaves open to argue

Had MS been able to show a potential risk arising from the profile his mother had had, some 20 years previously and/or MS’s inability to show that he was loyal to ZANU PF, his protection claim might have had some chance of success.

The Court of Appeal observed that those representing MS accepted that there were three relevant groups of people at risk in Zimbabwe:

(a) those who had an MDC profile (a group which did not include MS),

(b) those who could be attacked randomly (and whose political profile was irrelevant) and

(c) those who could not show that they were loyal to ZANU PF (and there was only one example of ill treatment on that basis in MS’s appeal).

For those not in MS’s position and for example able to fall into categories (a) or (c) and with the Upper Tribunal in MS having accepted that Zimbabwe “remains a society where brutality and human rights abuses continue to take place”, rather than seek to argue that levels of violence have increased since RN(Zimbabwe) was published in 2008 etc, an option argument might be, as per a recent successful claim, that following the publication of CM(Zimbabwe) itself:

the Secretary of State’s background evidence makes it clear that anti-regime activity continues to be met by human rights abuses and repression in Zimbabwe.
the background evidence (and the expert report where prepared) make it abundantly clear that a person with the claimant’s profile will be at real risk of ill-treatment from the authorities for his anti-regime activity. The option of internal relocation does not apply as the claimant will be at risk on arrival at the airport in Zimbabwe.

Lessons learned

In submissions, on behalf of the Secretary of State, it was stated in relation to the Report that, “overall, there was nothing in paragraphs 56 or 57 which showed that test for departing from CM was met. That material, far from satisfying the test, was ‘very thin indeed’”.

It is worth considering drawing MS(Zimbabwe) to the attention of any country expert instructed to address issues of risk on return related to Zimbabwean claimants.

Proof -reading and double-checking the contents of a prepared expert report before submission to the Tribunal is a must. It is not unusual to find one or two brief erroneous references in some expert reports which may be highly indicative of copying and pasting from elsewhere, however experts will quickly amend a report and remove inapplicable sentences or paragraphs where their attention is drawn to it.

It is important not to rely substantially or wholly upon the researched background evidence referred to within an expert report to support arguments on matters of risk on return related to persecution of opposition or suspected opposition supporters. In reference to a country such as Zimbabwe, there is a multitude of reliable background evidence that can be sourced online to support an asylum application or appeal. A mere two hours dedicated to research of relevant and reliable background evidence is not sufficient. Where a legal representative does not have regularly updated extracts of background evidence including sources links accrued over time, then, so as to “catch-up”, 4hours or more hours dedicated to delving into research on risk matters will be required.

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

Posted on August 8, 2020 by alicemuzira Standard Reply

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.

ENFORCED RETURNS TO ZIMBABWE STILL UK POLICY

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.

PROLONGED VIOLENCE BY THE ZIMBABWEAN GOVERNMENT

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

The fuel protests in January 2019 were greeted by violence by Zimbabwean security forces. They went from door to door, conducting house raids and at times randomly to beat up, detain and arrest opposition supporters and members and even those they merely suspected to be opposition supporters. Women were raped. https://www.hrw.org/news/2019/03/12/zimbabwe-excessive-force-used-against-protesters

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

As per reports in September 2019, around 50 political opponents and unionists were abducted in Zimbabwe in 2019. According to Amnesty International, they are the victims of a “ systematic and brutal crackdown on human rights” by the regime – https://www.timeslive.co.za/news/africa/2019-09-20-zimbabwes-witch-hunt-against-opponents/

On 20 November 2019, the police in Zimbabwe violently broke up an MDC gathering in Harare due to hear a speech by the president of the MDC, Nelson Chamisa, beating up supporters. Teach gas was fired by the police and people were beaten with baton sticks- https://www.theguardian.com/world/2019/nov/20/zimbabwe-riot-police-fire-teargas-at-opposition-supporters

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.

THOSE AT RISK

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 PROBLEM OF OUT- DATED HOME OFFICE INFORMATION NOTES AND UPPER TRIBUNAL CASELAW

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.

CONCLUSION

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

Posted on February 19, 2020 by alicemuzira Standard Reply

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, 1^st 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

ETD IS THE CURRENT BARRIER TO REMOVAL

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 20^th 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

15^th Floor, Lunar House

40 Wellesley Road

Croydon

CR9 2BY

Tel: +44(0) 208 196 0151

Zimbabwe House

429 Strand

London

WC2R 0JR

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, 11^th 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.

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