AA (Involuntary returns to Zimbabwe)
| Jurisdiction | England & Wales |
| Judge | C M G OCKELTON,DEPUTY PRESIDENT |
| Judgment Date | 07 October 2005 |
| Neutral Citation | [2005] UKAIT 144 |
| Court | Asylum and Immigration Tribunal |
| Date | 07 October 2005 |
[2005] UKAIT 144
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr C M G Ockelton (Deputy President)
Mr H J E Latter (Senior Immigration Judge)
Mr C P Mather (Senior Immigration Judge)
For the Appellant: Mr M Henderson, instructed by the Refugee Legal Centre
For the Respondent: Mr S Kovats, instructed by the Treasury Solicitor
AA (Involuntary returns to Zimbabwe) Zimbabwe CG
On the evidence available to this Tribunal and in the light of the Respondent's concession, failed asylum-seekers returned to Zimbabwe are at risk of persecution for a Convention reason and are accordingly refugees. The process of return and reception in Zimbabwe is different from that in other countries with which the Tribunal is familiar.
The Appellant is a citizen of Zimbabwe. According to his passport he was born on 8 April 1975. He arrived in the United Kingdom on 6 November 2002. He failed to comply with conditions of temporary admission granted on that date. On 20 June 2005 he was arrested as an illegal entrant. He thereupon claimed asylum. His claim was considered under the Fast Track procedure. It was refused on 27 June 2005 and on the same date the Respondent made his decision to remove the Appellant as an illegal entrant. The Appellant appealed. Following a hearing on 4 July 2005, the Immigration Judge allowed the Appellant's appeal on the grounds that his removal to Zimbabwe would breach both the Refugee Convention and Article 3 of the European Convention on Human Rights. The Respondent applied for review of that decision. Reconsideration was ordered on 14 July 2005. The reconsideration came before the Tribunal on 18 July 2005. The Tribunal heard argument on the issue of whether there was an error of law in the Immigration Judge's decision. Following consideration of that question, the reconsideration was adjourned for determination on the merits and the appeal was removed from the Fast Track system.
The number of Zimbabwean nationals in this country claiming asylum or an entitlement to remain under a provision of the Human Rights Act is considerable. Their claims are determined by the Respondent and appeals against adverse decisions are heard by this Tribunal (before 4 April 2005 by Immigration Adjudicators and the Immigration Appeal Tribunal). Although the standard of proof is low, a very substantial proportion of the claims fail to meet even that standard, so that the consequence has been judicial affirmation of the Respondent's decision. At that point, the claimant has no entitlement to remain in the United Kingdom.
Removal, however, is a different matter. It appears that no unsuccessful claimants were removed to Zimbabwe during the period from January 2002 to 16 November 2004: the Respondent had suspended involuntary removals “because of the situation in Zimbabwe” as he has put it. We enquired at the hearing how many unsuccessful claimants were at that date awaiting removal to Zimbabwe. We have been told that the number cannot be disclosed.
Following the recommencement of removals in November 2004, there were suggestions that those removed from the United Kingdom as rejected asylum seekers were subject to ill-treatment on return. Two motives for ill-treatment were alleged. It was said that claimants' asylum claims themselves showed treachery to Zimbabwe; alternatively it was said that their compulsory removal from the United Kingdom was a cloak for attempts to infiltrate ‘Blair's spies’ into Zimbabwe.
This issue was one (but only one) of the matters considered by the Immigration Appeal Tribunal in a Country Guidance case, SM [2005] UKIAT 00100. Having considered the material before it, the Tribunal put the matter like this at paragraph 42 of its determination:
“The Tribunal is satisfied in the light of the statements made by the Zimbabwean authorities that returnees are regarded with contempt and suspicion on return and do face a very hostile atmosphere. This by itself does not indicate that all returnees are at real risk of persecution but that returnees are liable to have their background and circumstances carefully scrutinised by the authorities.”
That determination was given on 11 May 2005. Rumours of ill-treatment of returned asylum seekers persisted. A number of individuals threatened with removal sought permission for Judicial Review of the arrangements made for their removal, on the basis that, given the allegations of ill-treatment, rejected asylum seekers could not lawfully be removed to Zimbabwe without a proper consideration of whether their status as failed asylum seekers gave rise to a claim under the Refugee Convention. A number of those applications were stayed pending directions to be given by Collins J on 4 August 2005. On that date, by arrangement, consent or order, it was decided that further proceedings in all the Judicial Review applications should await the determination of a suitable appeal by this Tribunal. The reason why that arrangement was so obviously right is that the Tribunal can and must consider and determine the underlying facts in a way that is not open to the High Court in Judicial Review proceedings.
The Appellant's appeal was immediately identified as suitable for the purpose. Although it is specifically the appeal of this Appellant that we determine, we have heard evidence and arguments directed to the wider issue of whether rejected asylum seekers are as such at risk of persecution on their return to Zimbabwe. This determination incorporates our findings on that issue, as well as our conclusions on the Appellant's own appeal.
We should say that, in the meantime, removals to Zimbabwe had again been suspended. The Respondent undertook on 27 July 2005 to suspend them, but we understand that there were in fact no removals after 6 July. Again, we sought figures at the hearing. After it concluded, we were told that the number of Zimbabwean claimants awaiting removal as at 6 July, after the failure of their claims, also cannot be disclosed. We are, however, aware from our own experience within the Tribunal that the number of appellants who, despite lack of success in their appeal, have not been removed, is large. Perhaps that is why the Respondent will not disclose the precise figure.
The number of involuntary removals in the period from 16 November 2004 to 6 July 2005 appears, from the figures given by Mr Walsh, to have been 210 at the most. Those unsuccessful claimants whom the Respondent actually removed must constitute a tiny proportion of the whole. It may be of interest to add that in this period there were six British Airways flights to Harare every week.
The Appellant arrived in the United Kingdom, as we have said, on 6 November 2002. He had an apparently valid Zimbabwean passport issued some three months previously. We do not know the basis upon which he sought leave to enter. He was not granted leave to enter, but was granted temporary admission and released on condition that he return to the airport for interview. His passport was retained at the airport. He did not return; he did not seek to recover his passport; he did not do anything to regularise his stay. He is believed to have been working in the United Kingdom in the ensuing period of two years and seven months.
He was encountered by police on 20 June 2005. In his dealings with the police, he initially gave the name and identity of his brother, apparently under the false impression that his brother had current leave to remain in the United Kingdom. Unfortunately for the Appellant, that turned out not to be the case, and he was originally arrested on the basis of the expiry of his brother's leave. He then, for the first time, admitted his true identity and claimed asylum. The substantive basis of his claim was that he was a member and supporter of the opposition MDC party for six years. He said that he was held as an opposition activist for six months following a clash between MDC and ZANU-PF supporters, apparently in June 2000. He claimed that following his release from detention, ZANU-PF youth supporters stoned his house and in August 2002 came to look for him and, not finding him, threatened his parents. He claimed that at that point he left Zimbabwe in fear of his life.
The factual basis of the Appellant's claim was analysed by the Respondent and again by the Immigration Judge in the light of the evidence the Appellant supplied to support it. The Appellant said that he had been a member of the MDC for some years and that he had voted in the 2000 elections. It is true that he was able to name the leader of the MDC, but he was wrong in the name that he provided for the vice president or deputy leader. He was not able to name accurately any members of the MDC's shadow cabinet. In respect of the 2000 elections, he gave the name of the constituency and the name of the candidate for whom he voted and who was, he said, elected. But the constituency he named does not exist; the person he named was elected, but in a different area; and the Appellant's own local candidate was a person he did not name. Most striking of all is perhaps the Appellant's ignorance of what the initials MDC stand for.
It may not be very surprising that at his interview on 26 June 2005 the Appellant knew very little about the MDC. When he originally made his claim on 20 June, he made no reference to having himself been politically active at all.
Although he claimed to have been fleeing for his life following the incident in August 2002, it is clear that he could have travelled much earlier than he did. He had sufficient money for the purpose in his bank account, and his claim that he had to delay while his...
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