EM (Zimbabwe) v Secretary of State for the Home Department

CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeMr Justice Blake
Judgment Date14 Jan 2011
JurisdictionUK Non-devolved
Neutral Citation[2011] UKUT 98 (IAC)

[2011] UKUT 98 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

Mr Justice Blake, President

Senior Immigration Judge P R Lane

Immigration Judge R C Campbell

Between
EM
COM
CLM
JG
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation:

For Appellants EM and JG: Mark Henderson and Alasdair Mackenzie, instructed by the Immigration Advisory Service

For Appellant COM: Shivani Jegarajah, instructed by Thompson & Co, Solicitors

For Appellant CLM: Mark Henderson and Alasdair Mackenzie, instructed by Turpin&Miller, Solicitors

For the Respondent: Eleanor Grey and Colin Thomann, instructed by the Treasury Solicitor

EM and Others (Returnees) Zimbabwe CG

1. Evaluating the position as at the end of January 2011, the country guidance at paragraph 267 of this determination replaces that in RN (Returnees) Zimbabwe CG [2008] UKAIT 00083 , as follows:

  • (1) As a general matter, there is significantly less politically motivated violence in Zimbabwe, compared with the situation considered by the AIT in RN. In particular, the evidence does not show that, as a general matter, the return of a failed asylum seeker from the United Kingdom, having no significant MDC profile, would result in that person facing a real risk of having to demonstrate loyalty to the ZANU-PF.

  • (2) The position is, however, likely to be otherwise in the case of a person without ZANU-PF connections, returning from the United Kingdom after a significant absence to a rural area of Zimbabwe, other than Matabeleland North or Matabeleland South. Such a person may well find it difficult to avoid adverse attention, amounting to serious ill-treatment, from ZANU-PF authority figures and those they control. The adverse attention may well involve a requirement to demonstrate loyalty to ZANU-PF, with the prospect of serious harm in the event of failure. Persons who have shown themselves not to be favourably disposed to ZANU-PF are entitled to international protection, whether or not they could and would do whatever might be necessary to demonstrate such loyalty ( RT (Zimbabwe) [2010] EWCA Civ 1285).

  • (3) The situation is not uniform across the relevant rural areas and there may be reasons why a particular individual, although at first sight appearing to fall within the category described in the preceding paragraph, in reality does not do so. For example, the evidence might disclose that, in the home village, ZANU-PF power structures or other means of coercion are weak or absent.

  • (4) In general, a returnee from the United Kingdom to rural Matabeleland North or Matabeleland South is highly unlikely to face significant difficulty from ZANU-PF elements, including the security forces, even if the returnee is a MDC member or supporter. A person may, however, be able to show that his or her village or area is one that, unusually, is under the sway of a ZANU-PF chief, or the like.

  • (5) A returnee to Harare will in general face no significant difficulties, if going to a low-density or medium-density area. Whilst the socio-economic situation in high-density areas is more challenging, in general a person without ZANU-PF connections will not face significant problems there (including a “loyalty test”), unless he or she has a significant MDC profile, which might cause him or her to feature on a list of those targeted for harassment, or would otherwise engage in political activities likely to attract the adverse attention of ZANU-PF.

  • (6) A returnee to Bulawayo will in general not suffer the adverse attention of ZANU-PF, including the security forces, even if he or she has a significant MDC profile.

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

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

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

  • (10) As was the position in RN , those who are or have been teachers require to have their cases determined on the basis that this fact places them in an enhanced or heightened risk category, the significance of which will need to be assessed on an individual basis.

  • (11) In certain cases, persons found to be seriously lacking in credibility may properly be found as a result to have failed to show a reasonable likelihood (a) that they would not, in fact, be regarded, on return, as aligned with ZANU-PF and/or (b) that they would be returning to a socio-economic milieu in which problems with ZANU-PF will arise. This important point was identified in RN , and remains valid.

2. Guidance is also given on the assessment of the private and family life of a Zimbabwean national present in the United Kingdom for over 11 years with children born and/or resident most of their lives in the United Kingdom.

3. In the absence of countervailing factors, residence of over 7 years with children well-integrated into the educational system in the United Kingdom, is an indicator that the welfare of the child favours regularisation of the status of mother and children.

This determination is arranged as follows:

A. PRELIMINARY

paragraphs 1–3

B. THE FOUR APPELLANTS

4–35

Appellant EM

4–12

Appellant COM

13–19

Appellant CLM

20–23

Appellant JG

24–35

C. ZIMBABWE COUNTRY GUIDANCE CASES

36–73

Country guidance before RN

36–48

RN (Returnees) Zimbabwe CG [2008] UKAIT 00083

49–66

RS and Others (Zimbabwe–AIDS) Zimbabwe CG [2010] UKUT 363 (IAC)

67–73

D. FACT FINDING MISSION OF AUGUST 2010

74–128

Background

75–79

The FFM report

80–117

The seven voluntary returnees

118–121

Tribunal's summary of information given by the returnees

122–128

E. EVIDENCE EMANATING FROM FOREIGN AND COMMONWEALTH OFFICE

129–140

Background

130–134

Appellants’ submissions

135–140

F. ASSESSMENT OF THE GENERAL EVIDENCE

141–231

Has there been a material change in the risk of persecution or other serious ill-treatment since RN?

141–158

Problems arising from the COPAC process

159–173

Geographic differences

174–209

–Eastern Provinces

189–190

– Matabeleland1

91–197

– Harare and Bulawayo

198–209

The economy

210–218

Internal relocation

219–225

Teachers

226–231

G. THE SIGNIFICANCE OF FUTURE ELECTIONS

232–265

Analysis

234–265

The Issues

234

– (i) When will elections be called?

235–237

– (ii) Protection against abuse

238–246

– (iii) The Legal assessment of future risk

247–265

H. COUNTRY GUIDANCE ON ZIMBABWE

266–267

At the point of return

266

New country guidance regarding the position after the point of return

267

I. RE-MAKING THE DECISIONS IN THE FOUR APPEALS

268–308

Appellant EM

268–276

Appellant COM

277–283

Appellant CLM

284–298

Appellant JG

299–308

– Claim to international protection

299–307

– Article 8

308

Appendix A–Summary of oral evidence

Appendix B–Summary of evidence regarding timing and consequences of elections

Appendix C — Documentary material

A. PRELIMINARY
1

This is the determination of the Tribunal, to which each of the panel has contributed. In it we consider the situation in Zimbabwe in terms of the current political position and related protection issues, in order to give country guidance, some two years after the appearance of the determination in RN (Returnees) Zimbabwe CG [2008] UKAIT 00083. We do this in the context of re-making the decisions in the case of four Zimbabwean applicants for asylum, whom we shall call the appellants. The issue on which we give this country guidance is whether the circumstances in Zimbabwe as at the date of this decision are such that there is a reasonable degree of likelihood that a person who has no ZANU-PF connections will be at risk on return to his or her home area by reason of a perception of disloyalty or an inability to demonstrate loyalty.

2

The Tribunal sat on 18 to 25 October and 15 December 2010 and on 14 January 2011. We heard oral evidence from two of the appellants and from four expert witnesses called by three of the appellants. The oral evidence is summarised in Appendix A. The evidence regarding the timing and consequences of elections is summarised in Appendix B. We...

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