Although an applicant who submits a claim to the Home office has the hope that the outcome will be positive, that claim may however be refused with the Home office subjecting it to the certification procedure. The certification procedure operated by the Home Office in relation to human rights and asylum claims has the effect of either an outright denial of a right of appeal or a requirement that such an appeal right be pursued after the person has left the UK.
Category Archives: Deportation
The Deportation and Exclusion Regime for EEA And Non- EEA Foreign National Criminals: Of Deportation Orders, Exclusion Decisions and Exclusion Orders
The UK Government has over the years (more so since July 2012) sought to introduce measures intent upon ensuring that foreign national criminals are deported or excluded from the UK. Where deportation appeals are won, the Home Office’s now predictable reaction is an onward appeal, challenging allowed Tribunal decisions and sometimes with success. Those subject to deportation therefore cannot afford to proceed upon an assumption that once a deportation appeal is won, the Secretary of State will not seek to appeal such a decision.
Parent Route Applications – Of Zambrano, the Immigrations Rules, Appendix FM and Exceptional Circumstances
A parent may have left the UK or been removed, yet have a British child here remaining with the other parent. Even without a continuing relationship with the UK resident parent, the parent abroad may still wish to continue to have a family life with their British child and therefore want to apply for entry clearance to come to the UK.
A parent may be here with irregular status yet have children who are British residing in the UK or who have resided here continuously for 7years and are still under 18years of age. That parent may want to remain here with them and wish to submit an application for leave to remain.
A parent may also wish to switch from being a student and apply for leave to remain here under a different category where they have a child who is British following on from a relationship, for example, with a British citizen or a person who is settled here.
Several options are open, however the different avenues also have their advantages and disadvantages worthy of consideration prior to submitting an application.
DERIVATIVE RESIDENCE CARD APPLCIATIONS- “ZAMBRANO” APPLICATIONS
The ECJ judgment in the, case of Ruiz Zambrano (C34/09), established that member states cannot refuse a person the right to reside and work in the host member state, where that person is the primary carer of a Union citizen who is residing in their member state of nationality and refusal of a right of residence to that primary carer would deprive the Union citizen of the substance of their European citizenship rights by forcing them to leave the EEA. This means that the primary carer of a British citizen who is residing in the UK has a right to reside under EU law if their removal from the UK would require the British citizen to leave the EEA.
A primary carer of a British citizen will qualify for a derivative right of residence under Regulation 15A(4A) of the EEA Regulations where they satisfy the conditions set out in that paragraph. The conditions are that the applicant is the primary carer of a British citizen who is residing in the UK, and would be unable to reside in the UK or in another EEA state if their primary carer were required to leave the UK.
A primary carer is defined in regulation 15A(7) as a direct family member or legal guardian of the person from whom they would claim a derivative right, and the person who:
- has primary responsibility for that person’s care, or
- shares the responsibility for that persons care equally with one other person who is not an exempt person.
Therefore an application which meets the criteria for a derivative right of residence may qualify for a right of admission to the UK under amended Regulation 11 of the 2006 EEA Regulations; a right to an EEA family permit under amended Regulation 12 of the 2006 Regulation; and a right to a derivative residence card under regulation 18A of the Regulations.
In country applicants for a Directive Residence card are required to submit “DRF1” application Form.
The relevant Home Office Guidance is, “Derivative rights of residence – Ruiz Zambrano cases, 12th December 2012, 21/2012”.
FAMILY LIFE AS A PARENT OF A CHILD IN THE UK – ENTY CLEARANCE APPLICATION
The most relevant Instructions Guidance policies are:
- Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0a Family Life (as a Partner or Parent): 5-Year Routes, August 2015;
- Immigration Directorate Instruction Family Migration: Appendix, FM, Section 1.7A, Adequate, Maintenance & Accommodation, August 2015
To meet the eligibility requirements for entry clearance as a parent of a child in the UK, all of the requirements in paragraphs E-ECPT.2.1. to 4.2. must be met. The applicant must be outside the UK and must be aged 18 years or over.
The Relationship requirements, Financial requirements and English language requirement must be met.
If the applicant meets the requirements for entry clearance as a parent they will be granted entry clearance for an initial period not exceeding 33 months, and subject to a condition of no recourse to public funds.
If the applicant does not meet the requirements for entry clearance as a parent the application will be refused.
FAMILY LIFE AS A PARENT OF A CHILD IN THE UK – LEAVE TO REMAIN APPLICATION
Appendix FM provides:
“EX.1. This paragraph applies if
- (a)
- (i) the applicant has a genuine and subsisting parental relationship with a child who-
- (aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;
- (bb) is in the UK;
- (cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application ;and
- (ii) it would not be reasonable to expect the child to leave the UK; or
- (b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.
EX.2. For the purposes of paragraph EX.1.(b) “insurmountable obstacles” means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner”.
And Appendix FM also provides:
“Section R-LTRPT: Requirements for limited leave to remain as a parent
R-LTRPT.1.1. The requirements to be met for limited leave to remain as a parent are-
- (a) the applicant and the child must be in the UK;
- (b) the applicant must have made a valid application for limited or indefinite leave to remain as a parent or partner; and either
- (c)
- (i) the applicant must not fall for refusal under Section S-LTR: Suitability leave to remain; and
- (ii) the applicant meets all of the requirements of Section ELTRPT: Eligibility for leave to remain as a parent, or
- (d)
- (i) the applicant must not fall for refusal under S-LTR: Suitability leave to remain; and
- (ii) the applicant meets the requirements of paragraphs E-LTRPT.2.2-2.4. and E-LTRPT.3.1-3.2.; and
- (iii) paragraph EX.1. applies”.
A successful application that meets the requirements of R-LTRPT.1.1. (a) to (c) leads to the 5year Route to settlement. The 5-year route as a partner or parent is for those who meet all of the suitability and eligibility requirements of the Immigration Rules at every stage. Applications for leave on the 5-year routes to settlement can be made from outside the UK or in the UK. Overseas applicants need to apply for entry clearance as a partner on forms VAF4A and VAF4A Appendix 2, or as a parent on forms VAF4A and VAF4A Appendix 5. An applicant in the UK may apply for the 5-year partner route on form FLR(M), or the 5-year parent route on form FLR(FP). Appendix FM must be read together with Appendix FM-SE, which sets out the specified evidence that must be submitted with an application, and Appendix O, which sets out the English language tests approved for an application for entry clearance or limited leave to remain as a partner or parent. An applicant must provide all of the documents specified in Appendix FM-SE that are relevant to their application under Appendix FM. The grant of leave to remain under the 10year route is subject to a condition of no recourse to public funds To qualify for settlement, the applicant must have demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom in accordance with the requirements of Appendix KoLL of the Rules.
In an in country application, an applicant who fails to meet certain of the eligibility requirements their application under the 5-year route will be refused, and consideration given to whether they qualify under the 10-year partner, parent or private life routes.
A successfully application that meets the requirements of R-LTRPT.1.1. (a), (b) and (d) leads to the 10year Route to settlement. The 10-year route as a partner or parent is only applicable to in-country applications, is for those who meet all of the suitability requirements, but only certain of the eligibility requirements as a partner or parent where paragraph EX.1. of Appendix FM is also met.
Paragraph EX.1. is not an exception to the Rules, but to certain eligibility requirements of the 5-year partner and parent routes under Appendix FM. It is considered to provide the basis on which an applicant in the UK who does not meet all of the eligibility requirements of the 5-year partner or parent route can qualify for leave to remain under the Rules on the basis of their family life in the UK. An applicant in the UK can apply directly for the 10-year partner, parent or private life routes using form FLR(FP), where they know they cannot meet certain of the eligibility requirements of the 5-year routes.
From 6 April 2015, the Immigration Rules contain paragraph GEN.2.3(1) and (2) of Appendix FM and paragraph 276A01(1) and (2), which provide that, where an applicant in the UK has been on temporary admission or temporary release for a continuous period of more than 6 months at the date of application qualifies for leave under the 10-year partner, parent or private life routes or for leave outside the Rules on the basis of exceptional circumstances, they may be granted leave to enter rather than leave to remain.
The grant of leave to remain under the 10year route is also subject to a condition of no recourse to public funds however there is a possibility of being able to able to apply to lift the condition where the Secretary of State considers that the person should not be subject to such a condition. To qualify for settlement , the applicant must have demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom in accordance with the requirements of Appendix KoLL of these Rules.
Option A- Leave To Remain Application – Five year Route to Settlement :
The most relevant Home Office Instruction Guidance policies are:
- Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0a Family Life (as a Partner or Parent): 5-Year Routes, August 2015.
- Immigration Directorate Instruction Family Migration: Appendix, FM, Section 1.7A, Adequate, Maintenance & Accommodation, August 2015.
To qualify for limited leave to remain as a parent all of the requirements of paragraphs E-LTRPT.2.2. to 5.2. must be met.
Further the applicant meets all of the requirements of Section ELTRPT: Eligibility for leave to remain as a parent and the applicant must not fall for refusal under Section S-LTR: Suitability leave to remain.
Relationship requirements:
The child of the applicant must be-
(a) under the age of 18 years at the date of application, or where the child has turned 18 years of age since the applicant was first granted entry clearance or leave to remain as a parent under this Appendix, must not have formed an independent family unit or be leading an independent life;
(b) living in the UK; and
(c) a British Citizen or settled in the UK; or
(d) has lived in the UK continuously for at least the 7 years immediately preceding the date of application and paragraph EX.1. applies.
Either-
(a) the applicant must have sole parental responsibility for the child or the child normally lives with the applicant and not their other parent (who is a British Citizen or settled in the UK);or
(b) the parent or carer with whom the child normally lives must be-
(i) a British Citizen in the UK or settled in the UK;
(ii) not the partner of the applicant (which here includes a person who has been in a relationship with the applicant for less than two years prior to the date of application); and
(iii) the applicant must not be eligible to apply for leave to remain as a partner under this Appendix.
(a) The applicant must provide evidence that they have either-
(i) sole parental responsibility for the child, or that the child normally lives with them; or
(ii) direct access (in person) to the child, as agreed with the parent or carer with whom the child normally lives or as ordered by a court in the UK; and
(b) The applicant must provide evidence that they are taking, and intend to continue to take, an active role in the child’s upbringing.
Immigration status requirement:
The applicant must not be in the UK-
(a) as a visitor; or
(b) with valid leave granted for a period of 6 months or less, unless that leave was granted pending the outcome of family court or divorce proceedings;
The applicant must not be in the UK –
(a) on temporary admission or temporary release, unless the applicant has been so for a continuous period of more than 6 months at the date of application and paragraph EX.1.applies; or
(b) in breach of immigration laws (disregarding any period of overstaying for a period of 28 days or less), unless paragraph EX.1. applies.
Financial requirements:
The applicant must provide evidence that they will be able to adequately maintain and accommodate themselves and any dependents in the UK without recourse to public funds, unless paragraph EX.1. applies.
English language requirement:
The applicant has to meet the English requirement unless they are exempt.
If the applicant meets the requirements in paragraph R-LTRPT.1.1. (a) to (c) for limited leave to remain as a parent the applicant will be granted limited leave to remain for a period not exceeding 30 months, and subject to a condition of no recourse to public funds, and they will be eligible to apply for settlement after a continuous period of at least 60 months with such leave or in the UK with entry clearance as a parent under paragraph D-ECPT.1.1. If the applicant does not meet the requirements for limited leave to remain as a parent the application will be refused.
Option B- Leave To Remain Application – Ten year Route to Settlement:
The most relevant Home Office Instructions Guidance policy is :
- Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0b Family Life (as a Partner or Parent) and Private Life: 10-Year Routes, August 2015-This guidance must be used by decision makers considering whether to grant leave to remain on a 10-year route to settlement following a valid Human Rights application or claim for leave to remain on the basis of family life as a partner or parent or on the basis of private life in accordance with the some specified parts of the Immigration Rules and Appendix FM, or where considering whether to grant leave to remain outside the rules on the basis of exceptional circumstances.
The applicant must meets the requirements of paragraphs E-LTRPT.2.2-2.4. and E-LTRPT.3.1-3.2.; and paragraph EX.1. applies.
If the applicant meets the requirements in paragraph R-LTRPT.1.1. (a), (b) and (d) for limited leave to remain as a parent they will be granted leave to remain for a period not exceeding 30 months and subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition, and they will be eligible to apply for settlement after a continuous period of at least 120 months with such leave, with limited leave as a parent under paragraph D-LTRPT.1.1., or in the UK with entry clearance as a parent under paragraph D-ECPT.1.1. If the applicant does not meet the requirements for limited leave to remain as a parent the application will be refused.
Option C – Paragraph 276ADE of the Immigration Rules :
Parents may seek to rely upon Paragraph 276ADE of the Immigration Rules placing reliance upon the 7year rule as a basis of stay where they apply together as a family along with the qualifying child:
“Requirements to be met by an applicant for leave to remain on the grounds of private life
276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. in Appendix FM; and
…………
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK…”
Limited leave to remain on the grounds of private life in the UK may be granted for a period not exceeding 30 months provided that the Secretary of State is satisfied that the requirements in paragraph 276ADE(1) are met or, in respect of the requirements in paragraph 276ADE(1)(iv) and (v), were met in a previous application which led to a grant of limited leave to remain under this sub-paragraph. Such leave shall be given subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition.
Where an applicant does not meet the requirements in paragraph 276ADE(1) but the Secretary of State grants leave to remain outside the rules on Article 8 grounds, the applicant will normally be granted leave for a period not exceeding 30 months and subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition.
Limited leave to remain on the grounds of private life in the UK is to be refused if the Secretary of State is not satisfied that the requirements in paragraph 276ADE(1) are met.
CONSIDERATIONS- ADVANTAGES AND DISADVANTAGES
- Right to work
A person who submits a valid application for a derivative residence card will be issued with a certificate of application which will facilitate their taking employment while their application is under consideration.
Where an applicant applies under the parent route, having no leave to remain and an accompanying right to work, they are unable to work unless and until their application is determined positively.
- Settlement :
The 5 or 10year parent route can lead to settlement where the eligibility and qualifying requirements are met.
The Home Office generally consider that unless there are truly exceptional reasons, the expectation is that applicants should serve a probationary period of limited leave before being eligible to apply for indefinite leave to remain , if they meet the requirements. The Home Office however accept that there may be rare cases in which a longer period of leave is considered appropriate, either because it is clearly in the best interests of a child (and any countervailing considerations do not outweigh those best interests), or because there are other particularly exceptional or compelling reasons to grant leave for a longer period (or settlement). There is thus discretion to grant a longer period of leave where appropriate. In all cases the onus is on the applicant to provide evidence as to why they believe that a longer period of leave (or ILR) is necessary and justified on the basis of particularly exceptional or compelling reasons.
As regards a Zambrano application, the right of residence is not a right conferred by Directive 2004/38/EC but is a right derived from the right of Union citizenship contained in Article 20 of the Treaty on the Functioning of the European Union (a „derivative right‟). Therefore someone who has a derivative right of residence is not entitled to all of the benefits which flow from a right of residence arising under the Directive. In particular, those who acquire a derivative right of residence cannot rely on their status as a basis for bringing other family members to the UK under the Regulations(expect in the specific case of dependants); acquire permanent residence in the UK; rely on the public policy protection against removal or deportation from the United Kingdom that is given to those exercising free movement rights.
There is thus no right to permanent residence for persons claiming to have a derivative right of residence.
Derivative residence cards will ordinarily be issued for a period of five years.
Home Office Guidance provides that in certain circumstances, caseworkers may issue for an alternative period depending on the individual facts of the case. For example, where a primary carer is claiming a derivative right of residence for their child who is due to reach the age of majority in 3 years‟ time caseworkers should only issue a document for three years.
- Qualifying children:
Only British children can enable a parent to place reliance upon the judgment in Zambrano.
It is however is also important to note that those with primary responsibility of a dependant British adult may also place reliance upon Zambrano. The Home Office consider that cases where the British citizen is at, or over the age of 18, then the level of evidence required to demonstrate primary and shared responsibility will be significantly higher than in cases involving children. This is because it can generally be assumed an adult has the capacity to care for their own daily needs unless there are reasons such as a severe physical or mental disability which would prevent this. In order to demonstrate primary/shared responsibility for adults, the majority of the care must be provided by the primary carer(s). Evidence from the NHS/local authority/private care may be submitted to support this. Appropriate medical evidence must also be presented that confirms the British citizen is, and will remain, wholly dependent upon the primary carer. Details must be provided as to whether any other sources of care are available and what the predicted effect would be on the British citizen if the primary carer was no longer able to care for them. The Home office consider that such cases are likely to be rare and will require consideration on an individual basis.
The relevant Home Office Guidance in relation to the 10year route to settlement mentioned above states :
“This section applies to applications for leave to remain and further leave to remain as the parent of a child in the UK, and where the child:
is under the age of 18 years at the date of application; and
is living in the UK; and
is a British Citizen; or
has lived in the UK continuously for at least the 7 years immediately preceding the date of application”
The category of qualifying children is therefore wider than that in a Zambrano application however the same Guidance states:
“The decision maker should note that a parent wishing to remain in the UK on the basis of their settled child who has NOT lived in the UK continuously for at least 7 years immediately preceding the date of application, cannot meet the requirements of the parent routes. The child living in the UK must either be British, or have lived in the UK continuously for at least the last 7 years, for the parent to meet this requirement of these rules”.
- The “ reasonableness “ test in Exception 1 and the test of whether the British citizen will be forced to leave the EEA if the primary carer was forced to leave:
The Zambrano Home Office Guidance provides that even where there is evidence of primary and shared responsibility, evidence to show why the British citizen would be forced to leave the EEA (for example because they cannot access alternative care in the UK) is still required. The Home Office consider that if there is another person in the UK who can care for the British citizen, then a derivative residence card must be refused on the basis that such a refusal would not result in the British citizen being forced to leave the EEA. Caseworkers are required to assess whether there is another direct relative or legal guardian in the UK who can care for the British citizen and, in the case of a child, who has already had established contact. In making this assessment, the burden of proof remains on the applicant and the standard of proof is the balance of probabilities. This means the onus is on the applicant to demonstrate that their removal would force the British citizen to leave the EEA. If there is no information to demonstrate this, then home office Caseworkers are required to make further enquiries with the applicant as to the status or whereabouts of the other parent in the case of a child, or alternative care provisions in the case of a British citizen adult.
The Home Office state that examples of when it may be appropriate to issue a derivative residence card to a primary carer would be where:
- there are no other direct relatives or legal guardians to care for the
- British citizen; or
- there is another direct relative or legal guardian in the UK to care for
- the British citizen but there are reasons why this carer is not suitable; or
- in the case of an adult British citizen, there are no alternative care
- provisions available in the UK.
The home office also consider that an example of when a person may be considered unsuitable to care for a child would be where there are child protection issues which would prevent this child being placed with this particular relative/legal guardian- for example as a result of a particular criminal conviction or because of findings in family law proceedings. Another example might be where the person in question would be unable to care for the child due to a physical or mental disability.
A lack of financial resources or an unwillingness to assume care responsibility would not, by itself, be sufficient for the primary carer to assert that another direct relative or guardian is unable to care for a British citizen. Caseworkers are therefore directed to start from the assumption that where there is another direct relative or legal guardian in the UK, that they can care for the British citizen unless there is sufficient evidence to the contrary.
Paragraph EX.1. within Appendix FM is not a standalone requirement, but where it applies it provides an exception to meeting certain eligibility requirements of the 5-year parent route. Applicants being considered under the 10-year parent route must meet the requirements in paragraph EX.1. of Appendix FM.
The Home Office consider that the criteria set out in paragraph EX.1.(a) reflects the duty in section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children who are in the UK, ie their best interests. The Home Office are of the view that the requirements in paragraph EX.1.(a) and in paragraph 276ADE(1)(iv) reflect the duty in section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children who are in the UK, , as reflected in case law, in particular, ZH (Tanzania).
Under paragraph EX.1.(a), the decision maker must assess whether the applicant has a genuine and subsisting parental relationship with a child under the age of 18 who is in the UK and is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application, and whether it is reasonable to expect the child to leave the UK, and must carefully consider all of the information provided in the application.
Relevant Home Office Guidance as regards the 10year route to settlement considers that save in cases involving criminality, the decision maker must not take a decision in relation to the parent or primary carer of a British Citizen child where the effect of that decision would be to force that British child to leave the EU, regardless of the age of that child. This is stated to reflect the European Court of Justice judgment in Zambrano. Where a decision to refuse the application would require a parent or primary carer to return to a country outside the EU, the case must always be assessed on the basis that it would be unreasonable to expect a British Citizen child to leave the EU with that parent or primary carer. In such cases it is considered that it will usually be appropriate to grant leave to the parent or primary carer, to enable them to remain in the UK with the child, provided that there is satisfactory evidence of a genuine and subsisting parental relationship. In cases where a decision to refuse the application would require a parent or primary carer to return to a country within the EU, it may be possible to require the child to return or go there with that person. However, consideration must still be given to whether it would be reasonable to expect the child to leave the UK.
For non – EEA children, the requirement is to consider whether, in the specific circumstances of the case, it would be reasonable to expect the child to live in another country. Relevant considerations are likely to include: whether there would be a significant risk to the child’s health; whether the child would be leaving the UK with their parent(s); the extent of wider family ties in the UK ; whether the child is likely to be able to (re)integrate readily into life in another country; any country specific information, including as contained in relevant country guidance; other specific factors raised by or on behalf of the child.
In relation to the parent route, parents may highlight the differences in the quality of education, health and wider public services or in economic or social opportunities between the UK and the country of return and argue that these would work against the best interests of the child if they had to leave the UK and live in that country. The Home Office view is that other than in exceptional circumstances, this will not normally be a relevant consideration, particularly if the parent(s) or wider family have the means or resources to support the child on return or the skills, education or training to provide for their family on return, or if Assisted Voluntary Return support is available.
It can thus be seen that with such a stringent approach in relation to both Zambrano and Appendix FM applications, it is no surprise why in practice derivative residence applications and those applicants with children relying upon the “ 7year Rule” are usually refused by the home office.
- Overstaying:
Applicants submitting a derivative residence application, may do so even where they have no leave to remain, however parents applying under the 5year route to settlement are unable to place successful reliance upon this route apply where they are overstayers. When considering refusing an application on the grounds that it was made by an applicant who has overstayed by more than 28 days, the home office is required to consider any evidence of exceptional circumstances which prevented the applicant from applying within the first 28 days of overstaying. A visitor who has overstayed (by any period of time) cannot qualify for the 5-year route.
- Suitability Requirements and General Grounds for Refusal:
These do not apply to Zambrano applications, however in considering all applications for entry clearance or leave to remain as a partner or parent the decision maker must consider whether the suitability requirements in Appendix FM of the Rules are met. If the applicant falls for refusal on the basis of suitability, the application will be refused. It is noteworthy that applicants applying as a partner or parent under Appendix FM under the 5year and 10year route to settlement are not subject to the General Grounds for Refusal, except for the provisions in paragraph 320(3), (10) and (11) which continue to apply to applications under Appendix FM as set out in the General Grounds for Refusal:
- Fees and the NHS Health Surcharge:
Applicants applying for a Derivative residence card need only provide the £65.00 fee required per applicant.
For those applying for entry clearance, for leave to remain under the parent route, substantial fees are required to be paid. For leave to remain applications, a fee of £649.00 per applicant is required to be submitted with Form FLR(FP).
Further, as from 6 April 2015, under the Immigration (Health Charge) Order 2015, applications for leave to remain under the 5-year and 10year partner and parent routes are subject to the immigration health charge of £500.00 in addition to the application fee, unless they are not required to pay the immigration health charge
- No Recourse to public funds:
The Immigration Rules approved by Parliament govern the no recourse to public funds policy in grants of leave made under the 10-year partner, parent and private life routes under the Rules and in grants of leave made outside the Rules under ECHR Article 8 on the basis of exceptional circumstances. Grants of leave under the 5-year partner or parent routes are always subject to a condition of no recourse to public funds. In all cases where limited leave is granted on a 10-year route as a partner or parent under Appendix FM; limited leave on the grounds of private life is granted under paragraph 276BE(1) or paragraph 276DG; or limited leave is granted outside the Rules on the basis of exceptional circumstances relating to family life under GEN.1.10-1.11. of Appendix FM or to private life under paragraph 276BE(2), leave will be granted subject to a condition of no recourse to public funds, unless the applicant meets the terms of the relevant Home Office Guidance regarding the 10year route to settlement. The condition of no recourse to public funds will not be imposed, or will be lifted, only where the applicant meets the requirements of paragraph GEN.1.11A of Appendix FM or paragraph 276A02 of the Immigration Rules. Whether to grant leave subject to a condition of no recourse to public funds, and whether to lift that condition where imposed, is a decision for the Home Office decision maker to make on the basis of the relevant above quoted Guidance in relation to the 10year route to settlement. The Court of Appeal held in Sanneh & Ors v Secretary of State for Work and Pensions and Others [2015] EWCA Civ 49 that the right to reside under Zambrano arises on the date on which the Zambrano conditions are met. There is no need to wait until the point is reached where the Zambrano carer’s removal from the EU is imminent . Consequently, Zambrano carers like Ms Sanneh were entitled to mainstream welfare benefits by virtue of their right to reside until that right was deliberately excluded by the Social Security (Habitual Residence) (Amendment) Regulations 2012 (SI 2012/2587) which came into force on 8 November 2012. In brief the Court concluded that Member states are under an obligation to pay Zambrano carers who are in need and unable to work an amount that is sufficient to enable them to support themselves and their EU citizen child/children within the EU. In the UK, section 17 of the Children Act 1989 fulfils that obligation. Zambrano carers are not entitled to social assistance paid at the same level as that paid to EU citizens lawfully here. The levels of social assistance available to Zambrano carers in the UK, following the amendment to the habitual residence test, is not in breach of any requirement of EU law. Nor is it in breach of the Human Rights Act 1998 or the Equality Act 2010.
- Sole Parental Responsibility and Primary Responsibility:
A parent applying under Appendix FM may show they have sole responsibility of the child and a parent placing reliance upon a Zambrano application is required to show they have primary responsibility.
As regards Zambrano applications, the decision maker considers whether an applicant has primary responsibility or shares equal responsibility with another person for that British citizen’s care. Primary or shared responsibility will generally be established where that child is living with the primary carer(s) and the majority of their care is being provided for by that primary carer(s). Home Office guidance states that evidence to demonstrate this responsibility can include custody/guardianship orders, or if this is not available, any additional evidence which shows:
- that the child lives with the primary carer(s) or spends the majority of
- their time there;
- that the primary carer(s) makes the day to day decisions for that child,
- for example decisions relating to their education or health; and
- that the primary carer(s) has financial responsibility for that child.
How this is evidenced will vary depending on the facts of the case, but the primary carer(s) may submit letters from the child’s school, GP or from a solicitor to demonstrate primary/shared responsibility
Sole parental responsibility having regard to Appendix FM may need to be interpreted in line with the definition within the Guidance relating to the 5year and 10year route to settlement. According to the Home Office, sole responsibility means that one parent has abdicated or abandoned parental responsibility and the remaining parent is exercising sole control in setting and providing the day-to-day direction for the child’s welfare. A parent who claims to have sole responsibility must provide evidence they have exercised this role since the other parent abdicated or abandoned their parental role. This may be over a period of several years or may be several months before an application. Some day-to-day responsibility (or decision-making) for the child’s welfare may be shared with others, for example, relatives or friends, for practical reasons. As long as the applicant is ultimately responsible and answerable for the welfare of the child, this does not prevent the applicant from being a parent with sole responsibility within the meaning of the Immigration Rules. The Guidance however warns that decision makers must not make a decision that would have the effect of denying a parent who has not abdicated or abandoned parental responsibility contact with that child. The decision maker must carefully consider each application and on a case by case basis. The burden of proof is on the applicant to provide satisfactory evidence that they meet the Rules.
Considerations of “Normally lives with”; “Person who the child normally lives with” and “Direct access” are also set out within the said Guidance.
- Meeting Financial and Accommodation Requirements :
It is not a requirement in a Zambrano application that the applicant show that they can be maintained and accommodated without recourse to public funds. To qualify for entry clearance or leave to remain as a parent on the 5-year route to settlement, the applicant must meet the financial requirements. In order to meet the financial requirements the applicant must provide evidence that they will be able to adequately maintain and accommodate themselves and any dependants in the UK without recourse to public funds.
- English Language Requirement:
To qualify for entry clearance or leave to remain as a parent on the 5-year route to settlement the applicant must meet the English language requirement. This is not applicable in a Zambrano application.
- Right of Appeal:
A person who is refused a document on the basis that they do not have a derivative right to reside will have an appeal under regulation 26(3A) where they have produced:
- a valid national identity card issued by an EEA state or a passport and
- an EEA family permit; or
- proof that–
- where the person claims to have a right under regulation 15A(4A), that he or she is the direct relative or guardian of a British citizen;
- where the person claims to have a right under regulation 15A(5), that he or she is under the age of 18 and is the dependant of a person satisfying the criteria in (i).
Therefore, for example, an applicant mother who submits a full birth certificate showing the father’s detail but no evidence of the child’s entitlement to citizenship such as the father’s British passport or evidence of his settled status, then upon a refusal decision, there will be no right of appeal.
From 6 April 2015, under changes made by the Immigration Act 2014, all applications for leave to remain under the 5 year and 10year year partner and parent and private routes which are refused (except as a bereaved partner) will attract a right of appeal on the basis that a human rights claim has been refused, regardless of whether the application was made at a time when the applicant had valid leave to remain.
In some cases however, attracting a right of appeal does not equal to an in -country right of appeal if the application is refused and the decision is certified thus denying an in -country right of appeal.
- Article 8 considerations, Exceptional Circumstances, Compassionate Circumstances:
With a Zambrano application, the home office are most likely to neglect or refuse to consider Article 8 human rights considerations or any compassionate circumstance or Section 55 issues. Therefore although detailed submissions may be made the Regulation 15A application, the home office upon consideration and refusal may have no regard to them.
When an application falls for refusal under the Immigration Rules, the decision maker is required to move on to a second stage and consider whether there are any exceptional circumstances on the basis of Article 8 that would warrant a grant of entry clearance or leave to remain outside the Immigration Rules on Article 8 grounds because refusal would result in unjustifiably harsh consequences for the applicant or their family. Where a decision is to be made on entry clearance outside the Immigration Rules, the decision maker must refer details of the case to the Referred Casework Unit (RCU).
The Home Office Guidance on the 10year route to settlement provides that compassionate factors are compelling compassionate reasons on a basis other than family or private life under Article 8, which might justify a grant of leave to remain outside the Immigration Rules, even though the applicant has failed to meet the requirements of the Rules and there are no exceptional circumstances in their case. While exceptional circumstances on the basis of Article 8 must be considered in every case falling for refusal under the Rules, compassionate factors only need to be considered if they are specifically raised by the applicant. Compassionate factors are, broadly speaking, exceptional circumstances, e.g. relating to serious ill health, which might mean that a refusal of leave to remain would result in unjustifiably harsh consequences for the applicant or their family, but not constitute a breach of Article 8. Where an applicant is granted limited leave to remain on the basis of compassionate factors, the decision letter and associated status documentation clearly show that the grant has been given outside the Immigration Rules on the basis of compassionate factors, and should not indicate that the grant is on the basis of their family or private life.
- Length of time to consider applications:
As the rights claimed on the Zambrano basis do not stem directly from the Free Movement Directive, they are not subject to the normal 6 month timescales, but are considered “as soon as practicable”.
The current published customer service standards for processing applications for those applying for to remain on a temporary basis is stated to be 8weeks for postal applications. As the home office probably realise that this time estimate is unrealistic in practise in most cases, they have qualified this time period to state that if there is a problem with the application or if it is complex, they will write to explain why it will not be decided within the normal standard. They state that they will write within the normal processing time for the 8 week standard and within 12 weeks for the 6 month standard. For the home office to write on their own accord to applicants following an acknowledgment of the application and undertaking of biometrics, rarely happens and as such even applications relying upon Appendix FM are known these days to take considerably longer than 6months.
CONCLUSION
Each case and application is different and therefore different consideration in play in each case will determine which route to take advantage of. Although the Home Office may seem to take some delight in almost routinely refusing Zambrano applications or those applications relying upon the “7year rule”, where there is a right of appeal, there is always some chance and hope that such cases may succeed on appeal.
Kiarie, v The Secretary of State for the Home Department: Court of Appeal States that Substantial Weight Must Be Attached To The Public Interest In Deporting Non – EEA Foreign National Offenders Before Their Appeals Are Heard
The proceedings in the Court of Appeal in Kiarie, R (On the Application Of) v The Secretary of State for the Home Department [2015] EWCA Civ 1020 related to two Appellants liable to deportation by reason of criminal offending. The appeals concerned the interpretation and application of section 94B of the Nationality, Immigration and Asylum Act 2002 as inserted by the Immigration Act 2014. Where a person liable to deportation has had a human rights claim refused by the Secretary of State but has a right of appeal against that decision, section 94B empowers the Secretary of State to certify the claim if she considers that removal of the person pending the outcome of such an appeal would not be unlawful under section 6 of the Human Rights Act 1998. The effect of certification is that any appeal must be brought from outside the United Kingdom.
Section 94B of the 2002 Act provides::
“94B. Appeal from within the United Kingdom: certification of human rights claims made by persons liable to deportation
(1) This section applies where a human rights claim has been made by a person (‘P’) who is liable to deportation under –
(a) section 3(5)(a) of the Immigration Act 1971 (Secretary of State deeming deportation conducive to public good) …
…
(2) The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to P’s claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).
(3) The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed.”
The Court of Appeal observed that there was no dispute that a decision to certify under section 94B is amenable to judicial review, nor was there any real dispute about the correct interpretation of section 94B, though that interpretation was not accurately reflected in the Secretary of State’s accompanying Guidance to caseworkers. The Court stated that the Guidance contained an incomplete and misleading statement of the statutory test. On behalf of the Secretary of State, it was accepted that the Guidance needed “clarification” and there was a stated intention to amend it following judgment in the appeals. The Court of Appeal ‘s view was that the problem went beyond a need for clarification as the Guidance was liable to mislead decision-makers into applying the wrong test.
The Court further made it clear that a judicial review challenge is limited to the section 94B certification and does not extend to the deportation decision itself or to the related refusal of the person’s human rights claim. Section 94B will arise for consideration only in cases where there is a right of appeal against the refusal of the human rights claim. The section is concerned with the distinct question whether the person can lawfully be removed pending such an appeal. Further the Court of Appeal noted that there was no right of appeal against the section 94B certification itself.
The Court clarified that as to the applicable principles on judicial review of a decision under section 94B, the terms of the statute require the Secretary of State to form her own view on whether removal pending an appeal would breach Convention rights. For that purpose, in an article 8 case such as the present, the Secretary of State had to make relevant findings of fact and conduct a proportionality balancing exercise in relation to the facts so found. The findings of fact are open to review on normal Wednesbury principles, applied with the anxious scrutiny appropriate to the context. The Court is obliged to form its own view, whilst giving appropriate weight to any balancing exercise carried out by the primary decision-maker.
The Court of Appeal considered that the central provision in section 94B is subsection (2): the power to certify arises only “if the Secretary of State considers that … removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to P’s claim, would not be unlawful under section 6 of the Human Rights Act 1998 …” Therefore Secretary of State cannot lawfully certify unless she considers that removal pending the outcome of an appeal would not be in breach of any of the person’s Convention rights as set out in schedule 1 to the Human Rights Act.
The Court of Appeal also clarified that by subsection (3), a ground for certification is that the person would not, before the appeals process is exhausted, face “a real risk of serious irreversible harm” if removed to the country or territory to which he or she is proposed to be removed. That ground does not, displace the statutory condition in subsection (2), nor does it constitute a surrogate for that condition. The Court made it clear that even if the Secretary of State is satisfied that removal pending determination of an appeal would not give rise to a real risk of serious irreversible harm, that is not a sufficient basis for certification. She cannot certify in any case unless she considers, in accordance with subsection (2), that removal pending determination of any appeal would not be unlawful under section 6 of the Human Rights Act. It was noted by the Court that that the risk of serious irreversible harm is not the overarching test was rightly accepted by Secretary of State. In the Court’s judgement, it followed that the Secretary of State’s Guidance on section 94B is inaccurate and misleading in focusing as it does on the criterion of serious irreversible harm in subsection (3) and failing to focus on the central provision in subsection (2).
The Court of Appeal also stated that it was obvious from the wording of section 94B, that where the statutory condition in subsection (2) and the criterion in subsection (3) are met, the Secretary of State has a discretion whether to certify or not
At paragraph 37 of the judgment, the Court of Appeal made it clear that there may in practice be relatively few cases where removal for an interim period pending an appeal would be in breach of Convention rights in the absence of a risk of serious irreversible harm, but it is a possibility which must be focused on as a necessary part of the decision-making process. Consideration must be given, in particular, to whether removal pending determination of an appeal would interfere with the person’s rights under Article 8 and, if so, whether removal for that interim period would meet the requirements of proportionality. Unless the decision-maker considers that there would be no such interference or that any such interference would be proportionate, the claim cannot lawfully be certified under section 94B.
The Court of Appeal further observed that it may be thought that less weight attaches to the public interest in removal in the context of section 94B, when the only question is whether the person should be allowed to remain in the United Kingdom for an interim period pending determination of any appeal, than when considering the underlying issue of deportation for the longer term. The Court however emphasised that the very fact that Parliament has chosen to allow removal for that interim period, provided that it does not breach section 6 of the Human Rights Act, shows that substantial weight must be attached to that public interest in that context too. The Court stated that Parliament has carried through the policy of the deportation provisions of the UK Borders Act 2007 into section 94B- in deciding the issue of proportionality in an Article 8 case, the public interest is not a trump card but it is an important consideration in favour of removal.
PROCEDURAL AND SUBSTANTIVE ASPECTS
The Court of Appeal dealt with the arguments and issues having regard to two aspects:
- Whether, in allowing the appellant’s removal pending determination of any appeal and requiring such an appeal to be brought from outside the United Kingdom, certification was in breach of the procedural guarantees inherent in Article 8 of the ECHR.
- Whether in allowing the appellant’s removal pending determination of any appeal and requiring such an appeal to be brought from outside the United Kingdom, certification was in breach of the appellant’s substantive rights under Article 8 of the ECHR
Procedural Aspects:
As to the procedural aspects, it was submitted on behalf of the appellants that an out of country appeal would not provide them with fair and effective involvement in the appellate process and would not meet the procedural guarantees inherent in article 8; or, at least, that the Secretary of State did not take the necessary steps to satisfy herself that the procedural guarantees of Article 8 would be met by an out of country appeal before certifying under section 94B.
The Court however indicated acceptance of the general thrust of the case advanced on behalf of the Secretary of State. The Court rejected the submission that an out of country appeal against a deportation decision would deprive the appellants of effective participation in the decision-making process and of a fair procedure. The Court decided that the Secretary of State was entitled to proceed on the basis that an out of country appeal will meet the procedural requirements of Article 8 in the generality of criminal deportation cases. If particular reasons are advanced as to why an out of country appeal would fail to meet those requirements, they must be considered and assessed, however on the evidence before the court, in relation to each of the present appellants that certification under section 94B, requiring an appeal against the relevant deportation decision to be brought from outside the United Kingdom, is not a breach of the appellant’s procedural rights under article 8.
The reasons in further detail given by the Court were;
“64.First, I accept that an out of country appeal will be less advantageous to the appellant than an in country appeal. But article 8 does not require the appellant to have access to the best possible appellate procedure or even to the most advantageous procedure available. It requires access to a procedure that meets the essential requirements of effectiveness and fairness. Entry clearance cases may often be more straightforward but they too can raise human rights issues, and experience in them shows that an out of country appeal is capable of meeting those requirements. Moreover, the available statistics regarding success rates in such cases paint a far more favourable picture for appellants than was suggested by the observations of Sedley LJ in R (BA (Nigeria)) v Secretary of State for the Home Department (see paragraph 54 above).
65.The Secretary of State is entitled, in my view, to rely on the specialist immigration judges within the tribunal system to ensure that an appellant is given effective access to the decision-making process and that the process is fair to the appellant, irrespective of whether the appeal is brought in country or out of country. They will be alert to the fact that out of country appeals are a new departure in deportation cases, and they will be aware of the particular seriousness of deportation for an appellant and his family. All this can be taken into account in the conduct of an appeal. If particular procedures are needed in order to enable an appellant to present his case properly or for his credibility to be properly assessed, there is sufficient flexibility within the system to ensure that those procedures are put in place. That applies most obviously to the provision of facilities for video conferencing or other forms of two-way electronic communication or, if truly necessary, the issue of a witness summons so as to put pressure on the Secretary of State to allow the appellant’s attendance to give oral evidence in person.
66.There are difficulties for any appellant, particularly an unrepresented defendant, in preparing evidence for an appeal and presenting it to the tribunal, but I do not accept that those difficulties will be so much greater where the appeal is brought out of country as to amount to a denial of effective participation in the decision-making process or to render the procedure unfair. In these days of electronic communications, an out of country appellant does not face serious obstacles to the preparation or submission of witness statements or the obtaining of relevant documents for the purposes of an appeal. He can instruct a lawyer in the United Kingdom if he has the funds to do so. If he does not have the funds to instruct a lawyer but the case is so complex that an appeal cannot properly be presented without the assistance of a lawyer, he will be entitled to legal aid under the exceptional funding provisions considered in R (Gudanaviciene) v Director of Legal Aid Casework (paragraphs 47-51 above). It was accepted by Mr Drabble that such entitlement would not be affected by the fact that the appellant has to bring the appeal from outside the United Kingdom.
67.It is said in evidence on behalf of Mr Kiarie that it would be necessary for him to obtain a report of a forensic psychiatrist in relation to risk of reoffending and that psychiatric assessments made with the use of video conferencing technology should be viewed with caution. I do not accept that it is necessary in the generality of cases to obtain an expert psychiatric report for the purpose: the risk of reoffending can generally be assessed on the basis of the sentencing remarks and the reports that were before the sentencing judge. But if a further report is required, the evidence does not in my view establish either that it has to be obtained in the United Kingdom or that, if a UK expert has to be instructed, an appropriate assessment cannot be made on the basis of video conferencing or other form of electronic communication, in addition to the relevant written material”
Substantive Aspects:
As to the substantive aspect, both appellants pointed to the fact that the Secretary of State, whilst refusing their human rights claims, had accepted that the claims are arguable and should carry a right of appeal. The Court noted that although one is concerned here with the position only during the interim period before an appeal can be determined, both appellants contended that their removal from the United Kingdom for that period would be an interference with their substantive rights under Article 8.
The Court of Appeal observed that as to Mr Kiarie’s substantive rights under Article 8, he did not have any children; he was not in any relationship; his claim was based essentially on private life rather than family life; despite his lengthy stay in the UK, his offending was said to be indicative of lack of integration; it was not accepted that there would be very significant obstacles to his reintegration into Kenya, where English was a national or official language and where there was some evidence that he might have remaining relatives. He had no apparent health issues. His education and experiences in the UK might well assist him in establishing a career for himself in Kenya. The Court of Appeal stated that these matters were taken into account in reaching the conclusion that the public interest in deporting him outweighed his right to private and family life. It was noted that aspects of that analysis were then carried across into the reasoning set out in support of the certification under section 94B.
The Court stated that if the certification decision had focused on the wider question of breach of Article 8, rather on the question of serious irreversible harm, its conclusion would have been the same. Removal to Kenya pending determination of an appeal involved only a short-term interference with Mr Kaire’s private life in the United Kingdom. The difficulties of integration in Kenya for that limited period did not appear to the Court to be serious obstacles to removal and did not therefore have great weight in the balance. The Court stated that by contrast, the public interest in removal of a person with Mr Kiarie’s offending record carried substantial weight even in relation to removal pending an appeal. Taking everything into account, the balance appeared to the Court to come down firmly in favour of the proportionality of removal for that interim period.
As regard the second Appellant, Mr Byndloss, it was noted that he claimed to have family life in the UK with eight children by different women. In dealing with his claim, the Court noted that the Secretary of State had examined in considerable detail, by reference to the relevant provisions of the Immigration Rules, the evidence relating to each group of children and had concluded among other matters that whilst Mr Byndloss was the biological father of at least seven children, he had no relationship with any of them whereby he provided a consistent or parental presence in their daily lives. There is nothing to demonstrate that he made any meaningful contribution in terms of practical, financial or emotional support and nothing to show that he played any part in taking decisions about the children’s daily lives. The children’s day to day needs would continue to be provided by their respective mothers. The decision showed that the section 55 duty had been taken into account and that the best interests of the children had been a primary consideration in making the decision.
The Court observed that the decision went on to consider the question of family life with a partner, in relation to which it was accepted that Mr Byndloss was still married but it was not accepted that the relationship was genuine and subsisting. It also considered the question of private life, before reaching the conclusion that the public interest in deportation outweighed his right to private and family life. In the Court’s view, the various points considered in the context of the substantive claim under Article 8 could be seen to feed in to the reasoning in support of the decision to certify under section 94B. The Court’s judgement was that on the face of it, the conclusion reached in the decision letter, that Mr Byndloss’s removal pending appeal would not be in breach of his Article 8 rights or those of his wife, his former partners or his children, was well reasoned and compelling. The Court further stated that it runs contrary to authority in seeking to elevate children’s best interests beyond a primary consideration in decision-making and to turn them into the paramount or determinative factor.
CONSIDERATIONS AND CONCLUSION
Success in Section 94B challenges have been set at a very high threshold and even where there is a possibility that the Secretary of State ‘s decision might contain errors of law, so long as the errors cannot be considered material, the challenge is unlikely to succeed having regard to the considerations in the appeals at hand.
The Court did find that the decision in Mr Kiarie’s human rights claim under section 94B, was flawed by reason of two legal errors: Firstly, he was not informed in advance that consideration was being given to the certification of his claim under section 94B and he was not given a fair opportunity to make representations on the subject. The course adopted was procedurally unfair; Secondly, the decision to certify, in line with the Guidance, focused erroneously on the question of serious irreversible harm and failed to address the statutory question whether removal pending determination of an appeal would be in breach of section 6 of the Human Rights Act and, in particular, whether it would be in breach of Mr Kiarie’s procedural or substantive rights under Article 8. Thus, the decision was based on a legal misdirection. The Court of Appeal however concluded that neither of those errors were material. It was noted that procedural failings have to be viewed with caution and that they will often invalidate a decision, however the Court had no doubt that the decision would have been the same if the correct approach to section 94B had been adopted and account had been taken of the relevant material put forward on the appellant’s behalf in these proceedings. The Secretary of State was therefore found to have been entitled to conclude that it was compatible with the procedural guarantees provided by Article 8 to require Mr Kiarie to bring an appeal against the deportation decision from outside the United Kingdom.
As regards Mr Byndloss’s original decision 14 to certify his human rights claim under section 94B, in the Court ‘s judgment, that decision too was flawed by reason of the same two legal errors as affected the original decision in respect of Mr Kiaire, namely (i) procedural unfairness in failing to give an opportunity to make representations on the subject of certification, and (ii) an erroneous focus on the question of serious irreversible harm and a failure to address the statutory question whether removal pending determination of an appeal would be in breach of section 6 of the Human Rights Act and, in particular, whether it would be in breach of Mr Byndloss’s procedural or substantive rights under Article 8. The Court noted however that in Mr Byndloss’s case, there was also a supplementary decision letter by which time Mr Byndloss had had ample opportunity to put forward such further material as he wished to rely on to resist certification under section 94B. The supplementary decision letter took due account of the further material and provided detailed reasons for deciding to maintain the certification. The focus of attention was now to be on the supplementary letter. The section in the supplementary decision letter on certification was stated to apply the correct legal approach towards section 94B, focusing on the question whether removal pending an appeal would be unlawful under section 6 of the Human Rights Act and, in particular, whether it would be in breach of Article 8. On that point, therefore, the error in the original decision letter was corrected. The Court concluded in relation to Mr Byndloss, that although there were errors in the original decision, they were not material because the original decision was superseded by a supplementary decision that did not suffer from those errors and that set out a lawful basis for the maintenance of the certification under section 94B. The Court of Appeal therefore adopted the same approach in the case as in relation to Mr Kiarie, by granting permission to apply for judicial review but reserving the substantive claim to the Court and dismissing it.
It is however to be hoped that the challenge in these appeals can proceed to the Supreme Court with a view to overturning the Court of Appeal decision because as matters currently are, there is nothing to stand in the way of the Secretary of State seeking to extend the “deport first, appeal later” policy to non- deportation appeals.
A New British Approach to Asylum or a Calculated Erosion Of Protection For Refugees?
In her speech on 6 October 2015, Theresa May appeared super confident in being able to control immigration through sheer political will. She proudly states that her government has, “rooted out abuse of the student visa system, and the numbers went down. We reformed family visas, and the numbers went down. We capped economic migration from outside the EU, and – despite the growing economy – the numbers remained stable.” She insists that those students whose visas have run out must return home. The Secretary of State further considers as unsustainable the numbers coming from Europe and sees as justified the Prime Minister ‘s targeting of the amount paid in benefits for those coming to the UK to work. She however acknowledges that there is a struggle in keeping low the numbers of immigrants coming into the UK however states that she will not give in.
Theresa May considers somehow that the asylum system is being abused and manipulated and as such her focus has now shifted to seeking to control not only the number of asylum claimants being allowed to enter the UK seeking protection but in particular those seeking to claim asylum whilst already in the UK. Even those individuals who have been granted leave as refugees are at risk of being ordered to leave the UK prior to obtaining settlement.
Theresa May is adamant that she does not want a common European asylum policy, but rather in her view what is required is a “new British approach” together with a “new international approach with nation states working together”.
Having regard to the proposed changes, the Secretary of State appears seemingly intent upon eroding the current protections that there are for asylum claimants and refugees.
THE PROPOSED CHANGES
(1)Reworking of the International Legal Definition of Asylum and Refugee Status
“In the longer term, I want to work with other countries in Europe, and the United Nations, to review the international legal definitions of asylum and refugee status. Because there is a huge difference between a young Syrian family fleeing the tyranny of ISIL or Assad, and a student who claims asylum once he has been discovered overstaying his visa, or a foreign criminal about to be sent to a prison in his own country”
The EU to which the UK is a member, already has a Common European Asylum System which seems to currently cover Theresa May’s concerns. Since 1999, the EU has been working to create a Common European Asylum System and has sought to improve the legislative framework which may be summarized as below :
(A)The Reception Conditions Directive or Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers:
The purpose of the Directive is to lay down minimum standards for the reception of asylum seekers in Member States. The Directive applies to all third country nationals and stateless persons who make an application for asylum at the border or in the territory of a Member State as long as they are allowed to remain on the territory as asylum seekers, as well as to family members, if they are covered by such application for asylum according to the national law.
The preamble to the Directive provides:
“Whereas:
(1) A common policy on asylum, including a Common European Asylum System , is a constituent part of the European Union’s objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community.
(3) The Tampere Conclusions provide that a Common European Asylum System should include, in the short term, common minimum conditions of reception of asylum seekers.
(7) Minimum standards for the reception of asylum seekers that will normally suffice to ensure them a dignified standard of living and comparable living conditions in all Member States should be laid down.
(19) In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom gave notice, by letter of 18 August 2001, of its wish to take part in the adoption and application of this Directive.
Article 2
Definitions
For the purposes of this Directive:
(a) ‘Geneva Convention’ shall mean the Convention of 28 July 1951 relating to the status of refugees, as amended by the New York Protocol of 31 January 1967;
(b) ‘application for asylum’ shall mean the application made by a third-country national or a stateless person which can be understood as a request for international protection from a Member State, under the Geneva Convention. Any application for international protection is presumed to be an application for asylum unless a third-country national or a stateless person explicitly requests another kind of protection
that can be applied for separately;
(c) ‘applicant’ or ‘asylum seeker’ shall mean a third country national or a stateless person who has made an application for asylum in respect of which a final decision has not yet been taken;
(e) ‘refugee’ shall mean a person who fulfils the requirements of Article 1(A) of the Geneva Convention;
(f) ‘refugee status’ shall mean the status granted by a Member State to a person who is a refugee and is admitted as such to the territory of that Member State…”
*The UK government opted out and is not bound by the recast Reception Conditions Directive ie Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection.
(B)The Asylum Procedures Directive or Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status:
The purpose of the Directive is to establish minimum standards on procedures in Member States for granting and withdrawing refugee status.
The Preamble to the Directive provides:
“(5) The main objective of this Directive is to introduce a minimum framework in the Community on procedures for granting and withdrawing refugee status.
(11) It is in the interest of both Member States and applicants for asylum to decide as soon as possible on applications for asylum. The organisation of the processing of applications for asylum should be left to the discretion of Member States, so that they may, in accordance with their national needs, prioritise or accelerate the processing of any application, taking into account the standards in this Directive.
(16) Many asylum applications are made at the border or in a transit zone of a Member State prior to a decision on the entry of the applicant. Member States should be able to keep existing procedures adapted to the specific situation of these applicants at the border. Common rules should be defined on possible exceptions made in these circumstances
to the guarantees normally enjoyed by applicants. Border procedures should mainly apply to those applicants who do not meet the conditions for entry into the territory of the Member States.
(17) A key consideration for the well-foundedness of an asylum application is the safety of the applicant in his/her country of origin. Where a third country can be regarded as a safe country of origin, Member States should be able to designate it as safe and presume its safety for a particular applicant, unless he/she presents serious counter-indications.
(18) Given the level of harmonisation achieved on the qualification of third country nationals and stateless persons as refugees, common criteria for designating third countries as safe countries of origin should be established.
(26) With respect to the withdrawal of refugee status, Member States should ensure that persons benefiting from refugee status are duly informed of a possible reconsideration of their status and have the opportunity to submit their point of view before the authorities can take a motivated decision to withdraw their status. However, dispensing with these guarantees should be allowed where the reasons for the cessation of the refugee status is not related to a change of the conditions on which the recognition was based.
(27) It reflects a basic principle of Community law that the decisions taken on an application for asylum and on the withdrawal of refugee status are subject to an effective remedy before a court or tribunal within the meaning of Article 234 of the Treaty. The effectiveness of the remedy, also with regard to the examination of the relevant facts, depends on the administrative and judicial system of each Member State seen as a whole.
(32) In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed
to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom has notified, by letter of 24 January 2001, its wish to take part in the adoption and application of this Directive.
Article 2
Definitions
For the purposes of this Directive:
(a) ‘Geneva Convention’ means the Convention of 28 July 1951 relating to the status of refugees, as amended by
the New York Protocol of 31 January 1967;
(b) ‘application’ or ‘application for asylum’ means an application made by a third country national or stateless
person which can be understood as a request for international protection from a Member State under the Geneva
Convention. Any application for international protection is presumed to be an application for asylum, unless the person concerned explicitly requests another kind of protection that can be applied for separately;
(c) ‘applicant’ or ‘applicant for asylum’ means a third country national or stateless person who has made an application
for asylum in respect of which a final decision has not yet been taken;
(f) ‘refugee’ means a third country national or a stateless person who fulfils the requirements of Article 1 of the Geneva Convention as set out in Directive 2004/83/EC;
(g) ‘refugee status’ means the recognition by a Member State of a third country national or stateless person as a refugee;
(j) ‘withdrawal of refugee status’ means the decision by a competent authority to revoke, end or refuse to renew the
refugee status of a person in accordance with Directive 2004/83/EC;
Article 37
Withdrawal of refugee status
Member States shall ensure that an examination to withdraw the refugee status of a particular person may commence when new elements or findings arise indicating that there are reasons to reconsider the validity of his/her refugee status.
Article 38
Procedural rules
- Member States shall ensure that, where the competent authority is considering withdrawing the refugee status of a
third country national or stateless person in accordance with Article 14 of Directive 2004/83/EC, the person concerned shall enjoy the following guarantees:
(a) to be informed in writing that the competent authority is reconsidering his or her qualification for refugee status and the reasons for such a reconsideration; and
(b) to be given the opportunity to submit, in a personal interview in accordance with Article 10(1)(b) and Articles
12, 13 and 14 or in a written statement, reasons as to why his/her refugee status should not be withdrawn.
In addition, Member States shall ensure that within the framework of such a procedure:
(c) the competent authority is able to obtain precise and up-todate information from various sources, such as, where appropriate, from the UNHCR, as to the general situation prevailing in the countries of origin of the persons concerned; and
- d) where information on an individual case is collected for the purposes of reconsidering the refugee status, it is not obtained from the actor(s) of persecution in a manner that would result in such actor(s) being directly informed of the fact that the person concerned is a refugee whose status is under reconsideration, nor jeopardise the physical
integrity of the person and his/her dependants, or the liberty and security of his/her family members still living in the country of origin.
- Member States shall ensure that the decision of the competent authority to withdraw the refugee status is given in writing. The reasons in fact and in law shall be stated in the decision and information on how to challenge the decision shall be given in writing.
- Once the competent authority has taken the decision to withdraw the refugee status, Article 15, paragraph 2, Article 16, paragraph 1 and Article 21 are equally applicable.
- By derogation to paragraphs 1, 2 and 3 of this Article, Member States may decide that the refugee status shall lapse by law in case of cessation in accordance with Article 11(1)(a) to (d) of Directive 2004/83/EC or if the refugee has unequivocally renounced his/her recognition as a refugee.
Article 39
The right to an effective remedy
- Member States shall ensure that applicants for asylum have the right to an effective remedy before a court or
tribunal, against the following:
………………
(e) a decision to withdraw of refugee status pursuant to Article 38.
………..
- Member States shall, where appropriate, provide for rules in accordance with their international obligations dealing with:
(a) the question of whether the remedy pursuant to paragraph 1 shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome;
(b) the possibility of legal remedy or protective measures where the remedy pursuant to paragraph 1 does not have the
effect of allowing applicants to remain in the Member State concerned pending its outcome. Member States may
also provide for an ex officio remedy; and
(c) the grounds for challenging a decision under Article 25(2)(c) in accordance with the methodology applied under Article 27(2)(b) and (c).
*The UK government opted out and is not bound by the recast Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection
( C)The Qualification Directive or Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. :
The main objective of the Directive is, to ensure that Member States apply common criteria for the identification of persons genuinely in need of international protection, and to ensure that a minimum level of benefits is available for these persons in all Member States.
The Preamble provides:
| “16) | Minimum standards for the definition and content of refugee status should be laid down to guide the competent national bodies of Member States in the application of the Geneva Convention. |
| (17) | It is necessary to introduce common criteria for recognising applicants for asylum as refugees within the meaning of Article 1 of the Geneva Convention. |
| (18) | In particular, it is necessary to introduce common concepts of protection needs arising sur place; sources of harm and protection; internal protection; and persecution, including the reasons for persecution. | ||||||||||
| (38) | In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom has notified, by letter of 28 January 2002, its wish to take part in the adoption and application of this Directive.
Article 2 Definitions For the purposes of this Directive:
|
The UK government opted out and is not bound by the recast Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) (applicable from 21 December 2013).
(D)The recast Dublin Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person :
The Dublin Regulation establishes the Member State responsible for the examination of the asylum application. The criteria for establishing responsibility run, in hierarchical order, from family considerations, to recent possession of visa or residence permit in a Member State, to whether the applicant has entered EU irregularly, or regularly.
(E)The recast Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013:
EURODAC makes it easier for EU States to determine responsibility for examining an asylum application by comparing fingerprint datasets.
Having regard to the above Directives, further review of the international legal definitions of asylum and refugee status seems unnecessary.
(2)Strengthened ‘Safe Return Reviews’
“when a refugee’s temporary stay of protection in the UK comes to an end, or if there is a clear improvement in the conditions of their own country, we will review their need for protection. If their reason for asylum no longer stands and it is now safe for them to return, we will seek to return them to their home country rather than offer settlement here in Britain”.
The Home Office currently apply the following Asylum Instructions when considering the withdrawal of refuge status:
- Refugee leave;
- Cessation, Cancellation and Revocation of Refugee Status;
- Humanitarian Protection;
- Discretionary Leave;
- Active Review
Refugee status may be reviewed for example where there has been a significant and non-temporary change in the conditions in a particular country; on the basis of information relating to actions of the refugee or when a refugee applies for settlement or reaches the five year point.
Upon a review of refugee status, the home office may withdraw an individual’s refugee status, curtail their refugee leave and/or refuse their application for a further grant of leave. Where a review relates to information regarding the actions of an individual refugee either during or at the end of the five year period of limited leave, the UNHCR should be consulted on any cessation, cancellation or revocation decision.
Theresa May ‘s statements do not factor the scenario of political circumstances in a country seeming to improve yet worsen after several months. Upon her proposal a refugee may have protected status take away only to be returned to their country of origin and be caught up a dangerous circumstances several months later.
(3)Minimum Stay of Protection And Automatic Right to Settle
“For the first time we’ll distinguish between vulnerable people resettled from their region and those who claim asylum after abusing the visa system or having travelled to get here through safe countries. If you’ve spurned the chance to seek protection elsewhere – but we cannot return you to that safe country and you still need refuge – you’ll get the minimum stay of protection and you won’t have an automatic right to settle here. But for those who really need it, we will offer a longer stay of protection. Humane for those who need our help, tough on those who abuse it”
UNHCR officials, or the Red Cross acting on behalf of the UNHCR, may submit applications for the resettlement of individuals who have been recognised as refugees under UNHCR’s Mandate and who are unable to gain the protection of the countries where they currently are.
The home office policy is that all applications for asylum by mandate refugees will be considered within the normal asylum process. Mandate refugees have no entitlement to asylum in the UK and UNHCR recognition of mandate refugee status is not binding on the UK. However the Home Office accepts that in determining the asylum claim of a mandate refugee the decision maker must give mandate status due weight and take it into account when assessing credibility and determining the risk on return.
UNHCR may submit applications for the resettlement of individuals under the Gateway Protection Programme. The Gateway Protection Programme is operated by UK Visas and Immigration in partnership with the United Nations High Commissioner for Refugees (UNHCR). The programme offers a legal route for up to 750 refugees to settle in the UK each year, and is completely separate from the standard procedure for claiming asylum in the UK. Applications for resettlement under this programme are made to the UNHCR, which refers them to UKVI. Applications cannot be made directly to UKVI, to British diplomatic posts abroad or through other international organizations. All applications are assessed individually on their merits. Once applicants have been referred to UKVI, they carry out checks to assess; their refugee status; their need for resettlement (including whether their human rights are at risk in the country where they sought refuge, and whether they have long-term security in the country where they currently live); security risks (whether the applicant has committed a serious crime or represents a threat to national security, for example); their family status (including dependents and their relationship to the applicant); their health and the health of their dependents. UKV may refuse an application if they have good reasons to believe that resettlement in the UK would not be for the public good.
On 29 January 2014, the UK United Kingdom launched the Syrian Vulnerable Persons Relocation (VPR) scheme to provide protection to particularly vulnerable refugees who are considered to be at grave risk. Since that point, the UK has been working closely with the United Nations High Commissioner for Refugees (UNHCR) to identify those who are most vulnerable. The existing Vulnerable Persons Relocation Scheme, in place since early 2014, has been expanded in the last few weeks, with an additional 20,000 people currently living in camps in Syria, Turkey and Jordan intended to be resettled in the UK by 2020.
Having regard to current events, the UK government seems very quickly to be preferring granting refugee status by way of resettlement/relocation schemes.
The Qualification Directive, Article 24, seems to permit a grant of refuge status of less than 5years as it allows the issue of a residence permit for refugee status to be valid for at least 3years.
Where the reference to abusing the system means those applicants who claim asylum after having held leave for example as students, Article 5 of the Qualification Directive, specifically makes provisions for such claimants as there is a recognition that a well-founded fear of being persecuted or a real risk of suffering serious harm may be based on events which have taken place since the applicant left the country of origin.
(4)Even Faster Processing of Asylum Claims
“People who apply for asylum in the UK will be processed quickly and fairly. If they are approved, they will be granted our protection for the length of time that their home country remains unsafe for them to return. But if they are not approved, they must be made to leave the country quickly – and that’s exactly what our new Immigration Bill will do”.
There is already a system in place for processing asylum claims quickly.
Currently the home office apply the Detained Fast Track Processes policy. The detained fast track process is used to describe the two processes running mainly at IRC Harmondsworth and IRC Yarl’s Wood – the Detained Fast Track Process (DFT), and the Detained Non-Suspensive Appeals Process (DNSA).
Detained fast track involves detaining applicants for a short period, to make a quick decision, which if refused, will ordinarily be subject to quick appeal timescales. Detained non suspensive appeals involves detaining applicants for a short period, to make a quick decision. If refused asylum and if issued a certificate under Section 94 of the 2002 Act, applicants will not have an in country right of appeal.
Among other considerations, the home office apply the Detained Fast Track Processes Suitability Policy- an applicant may enter into or remain in detention fast track processes only if there is a power in immigration law to detain, and only if on consideration of the known facts relating to the applicant and their case obtained at asylum screening (and, where relevant, subsequently), it appears that a quick decision is possible, and none of the Detained Fast Track Suitability Exclusion Criteria apply.
As regards the Detained Fast Track Suitability Exclusion Criteria, Home Office policy is that certain individuals are unlikely to be suitable for entry or continued management in the detention processes. Detained Fast Track Processes Timetable Flexibility AI, explains when it might be appropriate for detention fast track timetables to be extended, or for an applicant to be removed from the processes altogether.
It therefore appears that there will be even more applicability of the detained fast track process and consequently inevitably even more legal challenges to the Secretary of State’s forthcoming policies and provisions in this regards.
(5)Use of Alternative Identity Documentation To Effect Enforced Removals
“Sometimes, it isn’t the individual person who holds up their deportation but their home country’s government. In the absence of specific identification documents – which are often destroyed by the individual themselves – some countries deny the nationality of their citizen and refuse to take them back. This happens in thousands of cases every year. So from now on, we will use alternative documentation – copies of which exist for anybody who first entered the country on a legal, biometric visa – as proof of the individual’s identity. If any foreign governments refuse to recognise these documents – which, in many cases, they helped to produce in the first place – we will take retaliatory measures. The message will be clear – if other governments don’t play by the rules, there will be consequences”.
Section 35, of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 provides that the Secretary of State may require a person to take specified action if the Secretary of State thinks that the action will or may enable a travel document to be obtained by or for the person, and possession of the travel document will facilitate the person’s deportation or removal from the United Kingdom. In particular, the Secretary of State may require a person to provide information or documents to the Secretary of State or to any other person; obtain information or documents; provide fingerprints, submit to the taking of a photograph or provide information, or submit to a process for the recording of information, about external physical characteristics (including, in particular, features of the iris or any other part of the eye); make, or consent to or cooperate with the making of, an application to a person acting for the government of a State other than the United Kingdom; cooperate with a process designed to enable determination of an application; complete a form accurately and completely; attend an interview and answer questions accurately and completely; make an appointment. A person commits an offence if he fails without reasonable excuse to comply with a requirement of the Secretary of State. A person guilty of an offence shall be liable on conviction on indictment, to imprisonment for a term not exceeding two years, to a fine or to both, or on summary conviction, to imprisonment for a term not exceeding twelve months, to a fine not exceeding the statutory maximum or to both.
It appears that Section 35 is not effective in practice- otherwise there would be no need to threaten foreign governments with non- cooperation to effect enforced removals.
(6)Invocation of the Spanish Protocol of the Amsterdam Treaty
“We will also – for the first time – invoke what is known as the ‘Spanish Protocol’ of the Amsterdam Treaty, which allows EU member states to treat any asylum claim by a citizen of another EU country as automatically inadmissible. It sounds crazy, but in the last five years, there have been 551 asylum claims in Britain from people from other EU countries – like Poland and Spain. All but a handful were turned down – but they cost over £4 million to the British taxpayer. So we will end this absurdity, creating space in our asylum system to help people who really need our protection – and saving taxpayers’ money”.
Currently any national from the European Economic Area (EEA) or Switzerland can apply for asylum in the United Kingdom and that claim must be considered. However, the EEA Regulations 2006 which apply to such nationals allow claims to be certified as clearly unfounded in certain circumstances because there is a presumption that any asylum claim from a national of an EU member state is clearly unfounded.
The Asylum Policy Instruction EEA/EU Asylum Claims, Version 2.0 Publication Date: May 2014 currently provides:
“2.1 The Treaty of Amsterdam
The Protocol on Asylum for Nationals of Members States, often referred to as the ‘Spanish Protocol’, is annexed to the Treaty of Amsterdam establishing the European Community and applies to EU Member States considering asylum claims from nationals of other EU Member States.
The Protocol considers that the level of protection afforded to an individual’s fundamental rights and freedoms by Member States means that they should be regarded as safe countries of origin. The procedures set out in the protocol for handling asylum claims from EU nationals (including dual nationals) must be followed. Although there are specific exceptions to cover deterioration in conditions within a Member State, normally the state considering the claim may either declare such a claim inadmissible, or consider it in the context of a presumption that it is ‘clearly unfounded’.
As the UK does not have a general procedure by which an asylum claim may be declared inadmissible (other than in the application of safe third country provisions – see the Asylum Instruction ‘Safe third country cases’) the claim must be considered within the substantive asylum procedure, albeit with a presumption that it is clearly unfounded.
This presumption can be rebutted and it would be appropriate to grant refugee status to an EU national who qualified. However, the terms of the Protocol require Member States to inform the EU Council of the fact that they have received and are considering such a claim”.
From the above Guidance, it remains to be seen whether new EEA Regulations will be published setting out the proposed changes in relation to dealing with asylum claims from EEA nationals.
CONCLUSION
For those who are considered to have “abused the asylum system ”, the UK government seems to consider that the current 5years is far too generous. Prior to August 2005, refugee status was normally granted for an indefinite period following a decision on the claim. Since then, the UK Government has sought to make those granted refugee status pass some “5year test” before being granted settlement. By indicating a strengthened review process for those already holding refugee status and a reduction of grant of below 5years residence for some types of claimants, this signals not just the start of erosion of protection for refugees but a more robust continuation.
Mugabe’s “ We are not Gays ” UN Speech: On Risk on Return to Zimbabwe, Would the UK Tribunal still Hold that this is a Rabble –Rousing Distraction ?
The Telegraph reported on 29 September 2015 that, “ Zimbabwean president Robert Mugabe strayed from his script in startling fashion on Monday evening, and blurted out: “We are not gays” during his UN General Assembly speech. The 91-year-old used his speech to criticise the UN for its “archaic” organisation which, he argued, excluded the poorest countries. He criticised EU sanctions against his country, and voiced his anger at the Security Council’s failure to represent developing nations. But it was during a section in which he criticised the UN for trying to impose human rights rules on countries that he made the off-the-cuff comments. “We reject the politicisation of this important issue and the application of double standards to victimise those who think and act independently of the self-anointed prefects of our time,” he said. “We equally reject attempts to prescribe ‘new rights’ which are contrary to our values, norms, traditions and beliefs.” He then blurted out: “We are not gays!” Homosexuality is illegal in Zimbabwe, and Mr Mugabe has made no secret of his distain for homosexuals.”
The Country Guidance case of LZ (homosexuals) Zimbabwe CG [2011] UKUT 00487 (IAC) by the Upper Tribunal noted at paragraph 20 of that decision that, “President Mugabe is most vociferous. He has blamed the LBGT community for Africa’s ills and repeatedly denounced its members as “worse than pigs and dogs.” And at paragraph 103 of their decision, “The public expression of homophobia in Zimbabwe is relatively recent and politically motivated – more of a rabble-rousing distraction”. LZ however concluded among other matters that despite there being much public expression of extreme homophobia at the highest levels in recent years, applying HJ & HT [2010] UKSC 31, [2010] Imm AR 729, there is in Zimbabwe no general risk to gays or lesbians. The Tribunal found that prosecutions are very rare. Lesbianism is not criminalised. Although some homosexuals suffer discrimination, harassment, intimidation, violence and blackmail from the general public and the police, the Upper Tribunal concluded in LZ that there is no general risk. They also concluded that “corrective rape” is rare, and does not represent a general risk. The Tribunal further considered that GALZ (Gays and Lesbians of Zimbabwe) had taken a realistic view ie that Zimbabwe is, “not the worst place in the world to be gay or lesbian even though the President, government officials and church leaders have whipped up a climate of hysterical homophobia”.
LZ had sought sought asylum in 2009 in the UK, based on the risk of persecution as a lesbian. Although the outcome in LZ is somewhat restrictive having regard to the reasoning and conclusions therein , LZ’s appeal itself was allowed on refugee grounds on the basis that although the Tribunal find that LZ would be personally discreet in Zimbabwe, by choice, nevertheless, her sexual identity, in the context of her family connections among the Zimbabwean elite, gave rise to a risk. It was considered that there were no findings on this family relationship in the initial Judge’s decision determination. It is not however possible to extract much from the Upper Tribunal’s decision regarding LZ ‘s actual personal circumstances. The Tribunal noted from the start that LZ did not rely only on general risk to homosexuals, or to female homosexuals but that she relied on her unique circumstances – it is however not clear what those unique circumstances are as the Tribunal stated that the parties had agreed during proceedings that it was not desirable for their decision to make her identity public. The Tribunal thus gave her anonymity and acknowledged that they had not included matters likely to identify her in the main body of their decision.
The remarks made by President Mugabe a few days ago in relation to gay people and those noted by the Upper Tribunal are not the only ones he has uttered.
On 30 June 2015 , Ibtimes in a news article titled, Zimbabwe President Mugabe Proposes To Obama, Mocks Gay Marriage Supreme Court Decision, stated, “Zimbabwe’s President Robert Mugabe jokingly said he would travel to the White House and propose to U.S. President Barack Obama,…….. “I’ve just concluded since President Obama endorses the same-sex marriage, advocates homosexual people and enjoys an attractive countenance – thus if it becomes necessary, I shall travel to Washington, D.C., get down on my knee and ask his hand,” Mugabe, 91, was quoted as saying by Turkey-based news website AWDnews. Mugabe, who was elected Zimbabwe’s president in 1987, said the United States was run by perverted Satan-worshippers. “I can’t understand how this people dare to defy Christ’s explicit orders as our Lord prohibited mankind from sodomy,” he said, according to AWDnews. The Zimbabwean dictator, who strongly opposes homosexuality, has made countless controversial remarks against the LGBT community in the past. Mugabe, who is also the African Union chairperson, has said that gay people are lower than “pigs, goats and birds” and they should go to “hell,” according to Newsweek.”Let Europe keep their homosexual nonsense there and live with it. We will never have it here. The act [of homosexuality] is not humane,” Mugabe reportedly said in a July 2013 speech to his ruling Zanu PF party supporters. “Any diplomat who talks about homosexuality will be kicked out. There is no excuse and we won’t listen to them.” Homosexuality is barred in Zimbabwe and Mugabe has criticized Obama for encouraging gay rights on the African continent. “We have this American president, Obama, born of an African father, who is saying we will not give you aid if you don’t embrace homosexuality. We ask, was he born out of homosexuality?” Mugabe reportedly said at a 2013 campaign rally”.
LZ considered background evidence only up till 26 September 2011 – on the basis of President Mugabe’s subsequent several anti -gay statements following that decision including most recently and also having regard to relevant recent background evidence, could this be good enough reason to argue a departure from LZ ?
RELEVANT INTERNATIONAL LAW
The legislative framework to these types of applications/appeals includes international and European Union law including the Refugee Convention and the European Convention on Human Rights and the Council Directive 2004/83/EC.
Article 1A(2) of the Convention relating to the Status of Refugees 1951, as applied by the 1967 Protocol, provides that a refugee is a person who:
“…owing to well-founded fear of being persecuted for reasons of
race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country…”
Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, provides:
“Article 9
Acts of persecution
- Acts of persecution within the meaning of article 1 A of the Geneva Convention must:
| (a) | be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or |
| (b) | be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). |
- Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of:
| (a) | acts of physical or mental violence, including acts of sexual violence; |
| (b) | legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; |
| (c) | prosecution or punishment, which is disproportionate or discriminatory; |
| (d) | denial of judicial redress resulting in a disproportionate or discriminatory punishment; |
| (e) | prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2); |
| (f) | acts of a gender-specific or child-specific nature. |
- In accordance with Article 2(c), there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1”.
“Article 10
Reasons for persecution
- Member States shall take the following elements into account when assessing the reasons for persecution:
| (a) | the concept of race shall in particular include considerations of colour, descent, or membership of a particular ethnic group; |
| (b) | the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief; |
| (c) | the concept of nationality shall not be confined to citizenship or lack thereof but shall in particular include membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State; |
| (d) | a group shall be considered to form a particular social group where in particular:
depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this Article; |
| (e) | the concept of political opinion shall in particular include the holding of an opinion, thought or belief on a matter related to the potential actors of persecution mentioned in Article 6 and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
- When assessing if an applicant has a well-founded fear of being persecuted it is immaterial whether the applicant actually possesses the racial, religious, national, social or political characteristic which attracts the persecution, provided that such a characteristic is attributed to the applicant by the actor of persecution”.
SOME RELEVANT CASELAW
HJ (Iran) & HT (Cameroon) v SSHD [2010] UKSC 31 concerned appeals which raised the question as to the test to be applied when considering whether a gay person who is claiming asylum under the Refugee Convention has a well-founded fear of persecution in the country of his nationality based on membership of that particular social group.
Lord Hope said at paragraph 35:
“This brings me to the test that should be adopted by the fact-finding tribunals in this country… It is necessary to proceed in stages.
(a) The first stage, of course, is to consider whether the applicant is indeed gay. Unless he can establish that he is of that orientation he will not be entitled to be treated as a member of the particular social group. But I would regard this part of the test as having been satisfied if the applicant’s case is that he is at risk of persecution because he is suspected of being gay, if his past history shows that this is in fact the case.
(b) The next stage is to examine a group of questions which are directed to what his situation will be on return. This part of the inquiry is directed to what will happen in the future. The Home Office’s Country of Origin report will provide the background. There will be little difficulty in holding that in countries such as Iran and Cameroon gays or persons who are believed to be gay are persecuted and that persecution is something that may reasonably be feared. The question is how each applicant, looked at individually, will conduct himself if returned and how others will react to what he does. Those others will include everyone with whom he will come in contact, in private as well as in public. The way he conducts himself may vary from one situation to another, with varying degrees of risk. But he cannot and must not be expected to conceal aspects of his sexual orientation which he is unwilling to conceal, even from those whom he knows may disapprove of it. If he fears persecution as a result and that fear is well-founded, he will be entitled to asylum however unreasonable his refusal to resort to concealment may be. The question what is reasonably tolerable has no part in this inquiry.
(c) On the other hand, the fact that the applicant will not be able to do in the country of his nationality everything that he can do openly in the country whose protection he seeks is not the test. As I said earlier (see para 15), the Convention was not directed to reforming the level of rights in the country of origin. So it would be wrong to approach the issue on the basis that the purpose of the Convention is to guarantee to an applicant who is gay that he can live as freely and as openly as a gay person as he would be able to do if he were not returned. It does not guarantee to everyone the human rights standards that are applied by the receiving country within its own territory. The focus throughout must be on what will happen in the country of origin.
(d) The next stage, if it is found that the applicant will in fact conceal aspects of his sexual orientation if returned, is to consider why he will do so. If this will simply be in response to social pressures or for cultural or religious reasons of his own choosing and not because of a fear of persecution, his claim for asylum must be rejected. But if the reason why he will resort to concealment is that he genuinely fears that otherwise he will be persecuted, it will be necessary to consider whether that fear is well founded.
(e) This is the final and conclusive question: does he have a well-founded fear that he will be persecuted? If he has, the causative condition that Lord Bingham referred to in Januzi v Secretary of State for the Home Department [2006] 2 AC 426, para 5 will have been established. The applicant will be entitled to asylum.
36.It should always be remembered that the purpose of this exercise is toseparate out those who are entitled to protection because their fear of persecution is well founded from those who are not. The causative condition is central to the inquiry. This makes it necessary to concentrate on what is actually likely to happen to the applicant. As Lord Walker says in para 88, the inquiry is directed to what will happen in the future if the applicant is returned to his own country. An approach which disregards what is in fact likely to occur there in the case of the particular applicant is wrong and should not be adopted”
Lord Rodger said at paragraph 82:
“When an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality.
If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant’s country of nationality.
If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country.
If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution – even if he could avoid the risk by living “discreetly”.
If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so.
If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, e g, not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay.
If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution. To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect – his right to live freely and openly as a gay man without fear of persecution. By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him”.
SOME BACKGROUND EVIDENCE AFTER LZ
The contentious issue in LZ appeared to be the lack of supporting background evidence to support the arguments regarding the general risk of persecution of gays in Zimbabwe.
The Tribunal in LZ noted at paragraphs 34 of their decision, that GALZ at interview said that they were not aware of any cases of consenting adults prosecuted for sodomy in 2009, 2010 or 2011. At paragraph 35 of their decision, it was noted that ZLHR were similarly not aware of any convictions for sodomy in 2009, 2010 or 2011. They were aware of threats of arrest being used regularly to harass homosexual men and women. At paragraph 41 of their decision, the Tribunal observed that Zimbabwe has a lively press, although largely subservient to President Mugabe. There were active human rights organisations which follow gay and lesbian issues, and publish reports. The Tribunal stated that if consensual homosexual conduct was being prosecuted, even in the lower courts with minimal penalties, they considered that there would have been some press reporting, and that organisations like GALZ and ZLHR would know about it. It was noted the other sources before the Tribunal including the US State Department Country Report, consistently stated that there have been no recent prosecutions of consensual homosexual conduct. To the Tribunal, the only conclusion sensibly available was that such conduct is not prosecuted to any meaningful extent. At paragraph 49 of their decision, the Tribunal noted murders with a homophobic element may of course occur in Zimbabwe, and may not appear as such in any public record. It was stated that neither party referred the Tribunal to any evidence of such events and the Tribunal had nothing to support the proposition that this is a real risk to homosexuals of either gender. At paragraph 58 of their decision the Tribunal stated that from the references made to the sources before them, their assessment is that “corrective rape” was rare. The Tribunal accepted that it did happen, and of its nature must often be a hidden crime, but it did not represent a real risk to homosexuals of either gender. At paragraph 72 of their decision, the Tribunal noted that at the end of 2004 there were 9 different regional groups or associations affiliated with GALZ. There was no evidence that any of these regional groups subsequently ceased to function. It followed that in these nine towns or cities there are some, although perhaps limited, opportunities for homosexuals to meet and socialise – Bulawayo; Chipinge; Chitungwiza; Marondera; Masvingo; Mutare; Penhalonga; and Victoria Falls. The Tribunal also noted at paragraph 82 of their decision that GALZ is a long established organisation, with nine affiliated organisations across Zimbabwe, whose existence is tolerated. If a lesbian is willing to join the organisation (which can be done on line without visiting Harare) GALZ is able to provide some support to her, including practical support in providing access to lawyers (through ZLHR), and to doctors and clinics which are not homophobic.
It has been several years since LZ was notified and as such references will be made to some readily available recent background evidence below to see whether the Tribunal’s assessment and reasoning having regard to current background evidence could possibly remain the same:
“The Zimbabwean government should immediately stop persecuting members of Gays and Lesbians of Zimbabwe (GALZ), Human Rights Watch said today in a letter to Prime Minister Morgan Tsvangirai and President Robert Mugabe. On August 20, 2012, police officers entered and occupied the offices of GALZ in Harare for six hours, producing a warrant only after the GALZ lawyers demanded it. They confiscated documents, advocacy materials, and computers. GALZ advocates for the rights of lesbian, gay, bisexual, and transgender (LGBT) people in Zimbabwe. “This latest police raid on the country’s leading LGBT group shows the government’s intolerance of the rights of Zimbabwe’s sexual and gender minorities,” said Monica Tabengwa, LGBT researcher at Human Rights Watch. “By intimidating and harassing members of GALZ, the authorities are violating their rights to freedom of expression and association.” In the past decade, Zimbabwean authorities have intensified attacks against members of GALZ including intimidation, arbitrary arrests, and beatings. Mugabe, in office since 1980, has been at the forefront of anti-gay harassment, repeatedly using his office to insult and denigrate gay and lesbian Zimbabweans. He has vowed not to allow the inclusion of LGBT rights in Zimbabwe’s new constitution, which is being drafted”- 27 August 2012 Zimbabwe: End Attacks on LGBT People, https://www.hrw.org/news/2012/08/27/zimbabwe-end-attacks-lgbt-people
“Zimbabwean President Robert Mugabe on July 5 said authorities should arrest gays and lesbians who don’t conceive children. “I should like to shut them-up in some room and see if they get pregnant; if they don’t then it’s jail because they have claimed they can have children,” the tabloid New Zimbabwe quoted Mugabe as saying during a rally in Harare, the country’s capital, at which he unveiled the platform of his party, ZANU-PF, ahead of the African nation’s July 31 elections. “So, to that kind of rot, we say no, no, no, no!” The tabloid further reported that Mugabe criticized the Anglican Church for blessing same-sex marriages. The Zimbabwean Broadcasting Corporation noted Mugabe also blasted President Obama’s support of nuptials for gays and lesbians. “Obama said he wished that we in Africa accepted gay marriages,” Mugabe said. “Parents, tell your children that we are against gay marriage.” ,8 July 2013, Zimbabwe president: Arrest gays who don’t conceive children – See more at: http://www.washingtonblade.com/2013/07/08/zimbabwe-president-arrest-gays-who-dont-conceive-children/#sthash.c2Zrq1tN.dpuf
“Harare, February 22, 2014 – Zimbabwean authorities have stepped up their antipathy towards the activities of gays and lesbians after summoning the leader of the Gays and Lesbians of Zimbabwe (GALZ) to stand trial Monday on charges of running an “unregistered” organisation. Police recently served summons on GALZ chairperson Martha Tholanah to appear in court 5 at Harare Magistrates Court where her trial is scheduled to commence… Human rights groups fear that by pressing ahead with the prosecution of the GALZ leader even though the High Court recently exempted GALZ from registering under the PVO Act, representatives of the National Prosecuting Authority could be abusing their powers and bend on persecuting gays and lesbians in Zimbabwe. President Robert Mugabe and his Zanu PF party supporters are infamous for their anti-homosexual stance. Mugabe has described gays and lesbians as “worse than pigs and dogs” while in recent years, GALZ has been banned from participating at some of the country’s high profile fairs and meetings”. 22 February 2014, Zim Authorities Target GALZ In Renewed Judicial Persecution, http://www.radiovop.com/index.php/national-news/10637-zim-authorities-target-galz-in-renewed-judicial-persecution.html
“BULAWAYO – A 22-year-old man who allegedly stabbed a gay for proposing love to him has been acquitted by a Bulawayo court. Bongani Phiri was appearing before regional magistrate Sikhumbuzo Nyathi facing attempted murder charges. Phiri, who pleaded not guilty to the charges, indicated during his defence that he was constantly being nagged and harassed by the complainant Walter Kwanele Ndlovu over a relationship. “According to the complainant, Phiri, behaved like a gay and had submitted that the latter would sometimes caress him without his consent. Before passing his verdict, magistrate Nyathi cited among other issues the contradiction and inconsistencies of evidence put forward by the State and that of the witnesses. Since Phiri was being charged for attempted murder, Nyathi said he was not satisfied that he had an intention to kill when he committed the alleged crime. With regard to the nature of the case, Nyathi also admitted that issues pertaining to homosexuality in Zimbabwe were controversial. “In Zimbabwe, the issue of homosexuality is a controversial one to such extent that it has drawn into the fray, the highest office in the country. Some people are known to hold strong views on homosexuality,” he said. As a result Nyathi, found Phiri not guilty. According to the State papers, on October 26, last year at around 10pm outside a shebeen in Nguboyenja suburb, the two engaged in an argument after Phiri accused Ndlovu of being gay. The altercation got nastier which led to Phiri drawing an okapi knife from his pocket before stabbing the complainant on the upper left part of the chest. The complainant sustained a deep cut and had to be ferried to a hospital”, 26 March 2014, Gay Stabber Acquitted, http://www.dailynews.co.zw/articles/2014/03/26/gay-stabber-acquitted?
“MDC-T councillor for Harare’s Ward 33 (Budiriro) Sydney Chirombe, who was allegedly caught having sex with another man last week, yesterday said the State’s case against him was weak because the medical affidavit did not indicate any anal penetration. Chirombe (49) is facing a sodomy charge following his arrest last week in Willowvale where he was allegedly having sex with Joseph Muchena (23) in a car. The two appeared before Harare magistrate Mr Milton Serima jointly charged with sodomy. Prosecutor Ms Sharon Mashavira opposed a bail application by Chirombe’s lawyer, Mr Shadreck Chisoko.“The accused were apprehended while committing the offence although they are yet to be convicted their presumption of innocence falls away….. Ms Mashavira alleges that at around 2:30am on May 15, a police patrol unit in Glen Norah approached a Toyota Noah (ACH 7644) parked on Godwin Road in Willowvale, and found Chirombe sodomising Muchena on the front passenger seat. A half-naked Chirombe allegedly tried to flee from the scene but was arrested.”. 22 May 2014, Sodomy Pair Remanded in Custody, http://www.zimbabwesituation.org/?p=39559
“22 year-old Joseph Muchena and Sydney Chirombe aged 49 years had been on trial since early July on charges of committing sodomy in contravention of Section 73 of the Criminal Law (Codification and Reform) Act Chapter 9:23. State prosecutors claimed that Muchena, who was represented by Kennedy Masiye of Zimbabwe Lawyers for Human Rights and Chirombe, who was represented by Shadreck Chisoko acted unlawfully when the two men allegedly performed anal sexual intercourse on 15 May 2014 while in a vehicle parked along Godwin road in Willowvale industrial area in Harare.But Muchena and Chirombe on Monday 28 July 2014 walked to freedom after being acquitted at the close of the State case by Harare Magistrate Renika Dzikiti who ruled that there was no evidence produced in court to prove an essential element of the offence” 28 July 2014, Court acquits duo accused of sodomy http://www.thezimbabwean.co/2014/07/court-acquits-duo-accused-of/
“The young man gathered himself and with difficulty said he thought he had contracted a sexually transmitted disease. As he removed his pants in front of the nurse, she shouted: “I knew when you entered that something is wrong with you! Are you a man or a woman?” Stunned, Tavira pulled up his pants, walked out of the room and never went back. This wasn’t the first time he was treated this way.“I, like every other gay person, has to give in to a lot of insults and degrading inhuman utterances every day,” Tavira confides after relating the recent incident. He is open about his sexuality and the discrimination he faces at the hands of health personnel in Zimbabwe. For Zimbabwe’s LGBTI community, disclosing one’s sexual orientation is a major barrier to getting accurate, appropriate and relevant medical treatment. Gays and Lesbians of Zimbabwe (Galz) is an organisation that works to protect the interests of this minority group in the country. Its programmes manager Samuel Matsikure highlighted that as Zimbabwe’s leadership has openly denounced homosexuality, discrimination and stigma against the LGBTI community goes unpunished and will take a long time to uproot. President Robert Mugabe has made it clear that homosexuality will never find a place in Zimbabwe……This state-endorsed homophobia has made it difficult for Galz to get HIV and Aids prevention messages out to its 2100 members and the LGBTI community at large, who face a backlash from government and society and receive no support from public health institutions. About 15% of Zimbabwe’s adult population is living with HIV and Aids. There is currently no data available on the LGBTI community specifically. “The hostile environment the gay community is exposed to, especially at health facilities in the country, has impacted negatively on their rights to basic services such as health,” Matsikure said. “Some have been keeping sexually transmitted infections for six to eight months without seeking help.”“Such discrimination and stigma at the highest level makes our lives difficult and we remain a secretive and isolated community always fearing for our lives,” Tavira added”. 7 October 2014, Zimbabwe: The LGBTI community’s struggle for healthcare access http://voicesofafrica.co.za/zimbabwe-lgbti-communitys-struggle-healthcare-access/
“LGBT individuals reported widespread societal discrimination based on sexual orientation. In response to social pressure, some families reportedly subjected their LGBT members to “corrective” rape and forced marriages to encourage heterosexual conduct. Such crimes rarely were reported to police. Women in particular were subjected to rape by male family members. LGBT persons often left school at an early age due to discrimination and had higher rates of unemployment and homelessness. Many persons who identified themselves as LGBT did not seek medical care for sexually transmitted diseases or other health problems due to fear that health providers would shun them…” Zimbabwe 2014, Human Rights Report, US Department of State, www.state.gov/documents/organization/236634.pdf
“Two prisoners who were allegedly sodomising each other, made so much noise that they woke up another prisoner, who caught them red-handed in the act. Christopher Jani (36) allegedly had “noisy” sex with his alleged male lover Mbonisi Ncube (28) in a cell at around 3am on 3 March.Another prisoner, Edgar Majasi, allegedly woke up after hearing “high pitched sounds of delight” as the pair had sex and removed a blanket with which the “lovebirds” had covered themselves. Majasi, who said he was disgusted by what he saw, reported the matter to prison officials who forwarded a report to the police leading to the duo’s arrest. Jani and Ncube appeared before magistrate Tancy Dube facing a charge of sodomy. They were not asked to plead and they were remanded in custody to March 30. However, they denied having sex saying Majasi only found them sharing a blanket” – 18 March 2015, Prisoners caught red-handed in sodomy act http://bulawayo24.com/index-id-news-sc-national-byo-64616.html
“A former Zimbabwean civil servant is reportedly challenging his dismissal from his job after he was arrested for allegedly attending a gay party at a hotel in Bulawayo. The man, Raymond Sibanda, was arrested together with many others after police raided a Gays and Lesbians’ Association of Zimbabwe (Galz) end of year party in December 2013, according to a New Zimbabwe.com report…….Sibanda has since moved to file an application at a labour court in Bulawayo, challenging his dismissal, according to the state-owned Chronicle newspaper. He argued, among other things, that being present at the hotel at the same time as the Galz event did not mean he was part of it. Sibanda cited the Minister of Youth, Indigenisation and Economic Empowerment, Patrick Zhuwawo and the Civil Service Commission (CSC) as the respondents. “The respondents alleged that I was associated with gays, but the supreme law of the country, which is the Constitution under section 58, states that every person has freedom of assembly and association,” Sibanda argued. “Are the respondents therefore claiming that I was not supposed to be at Windermere Hotel just because there was a Galz party being hosted there?” But the respondents maintained Sibanda’s conduct was tantamount to tarnishing the image of government. They also said the decision by the disciplinary committee to fire Sibanda followed adequate evidence linking him to the alleged offence”.25 September 2015, Zimbabwe civil servant fights dismissal after being arrested at gay party, http://www.timeslive.co.za/africa/2015/09/25/Zimbabwe-civil-servant-fights-dismissal-after-being-arrested-at-gay-party
CONSIDERATION AND CONCLUSION
The Upper Tribunal in LZ, did say that personal circumstances place some gay men and lesbians at risk. Although not decisive on its own, being openly gay may increase risk. A positive HIV/AIDS diagnosis may be a risk factor. Gay rights activists and other persons who openly campaign for gay rights in Zimbabwe face the risk of arbitrary arrests by the police, and the harassment by state agents. As regards fear of ill-treatment by non-state actors, the Upper Tribunal in LZ found that the police and other state agents do not provide protection.
There may be a paucity of background evidence as regards actual convictions for acts of sodomy between consenting adults, however there are indeed meaningful prosecutions as per the background evidence in relation to acts of sodomy between consenting adults and indeed sometimes a mere perception of being gay is enough to be subjected to discriminatory behavior. As regards the suggestions that GALZ can provide support to gay people, the background evidence after the decision in LZ shows the persecution of the group itself. In combination with prosecution of consenting adults for sodomy as well as President Mugabe’s repeated anti – gay statements over the years, this belies GALZ’ s statements of 2011 that Zimbabwe is not the worst place in the world to be gay.
The Tribunal in LZ also noted at paragraph 86 of their decision a BBC news item of 24 October 2011 which stated that the then Zimbabwe’s Prime Minister Morgan Tsvangirai had reversed his position on gay rights, saying he now wanted them enshrined in a new constitution. He had told the BBC that gay rights were a “human right” that conservative Zimbabweans should respect. At paragraph 88 of their decision, the Tribunal in LZ stated that they recognised that in making this a public issue, Mr Tsvangirai’s words may have the short term effect of provoking even more homophobic rhetoric, however they thought it also showed the underlying reality that the general public is not as hostile to homosexuals as the President’s political bombast suggested. The Tribunal stated that the news item had not altered their conclusions, but it tended to reinforce them. General elections were however held in Zimbabwe on 31 July 2013. Robert Mugabe, was re-elected as President however the elections ended the inclusive government between Robert Mugabe’s Zanu PF party and Morgan Tsvangirai’s Movement for Democratic Change, MDC. Mr Tsvangirai is no longer Prime Minister in Zimbabwe.
The situation in Zimbabwe may be argued to be indeed hostile towards people of gay orientation having regard to the recent background evidence and rather than being a mere rabble-rousing rouse, in combination, President Mugabe’s recent statement only makes stronger the argument that the case of LZ should no longer be followed on issues of general risk.