THE United Kingdom Court of Appeal has handed down the case of RT (Zimbabwe) & Ors v SSHD [2010] EWCA Civ 1285, which is an extremely generous decision and will be of significant use to Zimbabweans seeking asylum in the UK.

In a nutshell, it confirms that three things are sufficient for a grant of asylum status to a Zimbabwean.

One: a lengthy absence from Zimbabwe.

Two: having claimed asylum in the UK (which is interpreted as an act of disloyalty to the Mugabe regime) and,

Three: having no adverse credibility findings.

The case authoritatively states that as a general proposition, a person found to have genuine political beliefs cannot be refused refugee status merely because they can be expected to hide those beliefs, or to act “discreetly” in order to avoid persecution.

In the particular case of Zimbabwean asylum seekers, they cannot be expected to lie about their political activism, or lack of loyalty to the regime on return to Zimbabwe.

The case involved four Zimbabweans whose asylum appeals had been rejected by the Asylum and Immigration Tribunal by reference to the guidelines in the current Country Guidance case of RN (Zimbabwe CG) [2008] UKAIT 00083.

The court accepted that all four were not “political refugees” in any ordinary sense. In other words, they all did not have any particular political commitments, nor had they suffered because of them. They had all left Zimbabwe for reasons which were unrelated to any political activities there; and they had not engaged in any significant political activities in the UK. They all argued that regardless of their actual political beliefs or activities, or lack of them, there was a risk, particularly having regard to their long absence from Zimbabwe, that if returned to Zimbabwe they would suffer persecution because of their unwillingness or inability positively to prove their loyalty to the Mugabe regime.

The question before the court was whether Zimbabwean asylum seekers should be required to pretend that they were loyal to the Zanu PF regime in order to avoid persecution. The question arose after the successful outcome in a case called HJ (Iran) which involved gay asylum seekers and in which the UK Supreme Court stated that gay people should be granted refugee status if going home would result in them being forced to hide their sexuality in order to avoid persecution.

The court in RT (Zimbabwe) was asked to extend the same reasoning to political activism, ie, that an individual found to hold genuine political beliefs should not be required to modify their behaviour or deny their beliefs in order to avoid persecution.

Another way of putting this is that an appellant should not be required to pretend that they are loyal to the Mugabe regime, when they are not, in order to avoid persecution. He cannot be expected to lie about his true political beliefs, or lack of them. This must be understood against the background that in the particular case of Zimbabwe, even a lack of political beliefs is dangerous, since those at risk on return to Zimbabwe are no longer restricted to people who are perceived to be members or supporters of the MDC but include anyone who is unable to demonstrate support for or loyalty to the regime or Zanu PF (per paragraph 258 of RN).

In applying this reasoning to the individual cases before it, the Court for instance found that a person with no political profile, but who had claimed asylum in the UK, and had been absent from Zimbabwe for a lengthy period of time, should be entitled to asylum, if he is generally credible.

What are the important conclusions in RT (Zimbabwe)?

1.       The general proposition is that returnees cannot be expected to lie about their background and circumstances when asked by the authorities. This means that if they have been politically active, they should be entitled to asylum if going home would result in them being forced to hide their opinions in order to avoid persecution.

2.       Even someone with a low political profile should also be entitled to asylum since he falls in the category of people who would be unable to demonstrate loyalty to the Mugabe regime.

3.       Further, even someone without any political profile should not be expected to lie about the absence of their political beliefs to avoid persecution, as they would be unable to prove loyalty to the Mugabe regime. This covers asylum seekers who rely on simply having been in the UK for a long time and having made an asylum claim.

4.       Credibility remains the critical issue. If someone is generally credible about other aspects of their case, they should be entitled to asylum, even if they have no political profile.

5.       RT (Zimbabwe) concludes by confirming that even where a claim to asylum would be hopeless, the conditions in Zimbabwe have been accepted to be exceptional and a grant of asylum may therefore be appropriate, except where the asylum seeker is not a credible witness.

To put it very plainly, a Zimbabwean who has been in the UK for some time (the threshold in RN is 2 years), who has claimed asylum, and who does not have an adverse credibility profile should be entitled to asylum status, simples!

It is important to point out that the RN Country Guidance case is currently under review and it is possible that the law may change again very shortly. For the moment, however, RN, as helpfully and generously clarified in RT (Zimbabwe), remains the applicable law.

Anyone who thinks that their immigration status may be affected by this opinion should seek professional legal advice. At Genesis Law Associates, we specialise in all areas of immigration, asylum and nationality law.

 

Taffi Nyawanza is the principal of Genesis Law Associates, a specialist immigration and asylum law firm in Birmingham. He can be contacted on tnyawanza@genesislaw.co.uk or ph. 0121 222 2370 or visit Genesis Law Associates’ website at www.genesislaw.co.uk

 

Disclaimer: This article only provides general information and guidance on immigration law. It is not intended to replace the advice or services of a solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience

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