A Zimbabwean failed asylum seeker has won his battle against deportation in a ruling that leaves the government’s policy of returning failed asylum seekers to Zimbabwe in ruins. The Asylum and Immigration Tribunal was seen as a crucial test case on this issue.

The tribunal found that although the claim for asylum was unfounded, there was evidence that failed asylum seekers returning to Zimbabwe faced persecution. The Zimbabwean, who cannot be named, won his appeal on the basis that as a result of having claimed asylum in the UK in the first place, he had a “well-founded fear of persecution” if he returned to Zimbabwe.

The Tribunal also said that the lack of interest of the ‘respondent’ (i.e. the Home Secretary) in “the process by which individuals that he returns to Zimbabwe are received by the Zimbabwean authorities rather alarming.”

It was critical of the Home Office’s lack of research into what would face returning deportees upon their return to Zimbabwe and the lack of evidence collected on a Government fact-finding mission sent in September.

Tribunal chairman Mark Ockelton said “The way in which the investigation was conducted, and the way in which the results were presented to us, gives rise to the possibility—we say no more than that—that the investigators may have had existing policy in mind rather more than the discovery of new facts.

Despite the facilities available to the investigation and the level at which it was conducted, it reveals nothing of the actual process which returned asylum-seekers go through on their arrival at Harare Airport.”

Reaction on the judgement

The judgement has sent ripples throughout the refugee sector. The Immigration, Asylum and Nationality minister, Tony Mc Nulty, said that “the ruling put the government’s whole asylum policy in question.

The absolute sanctity of the 1951 convention at the root of the asylum system is that each and every individual case is decided on its own terms within its own circumstances. This judgement drives an entire coach and horses through that and leaves the entire system open to abuse.”

Kate Hoey MP, chair of an all-party parliamentary group on Zimbabwe, called for an “immediate and complete overhaul” of Home Office procedures. Shadow home secretary David Davis said: “This is absolutely the right decision, made necessary by the abject failure of the Government’s policy on Zimbabwe.

We have always maintained that, until we have a rigorous method of monitoring the continuing safety of those returned to Zimbabwe, there should be a temporary moratorium on deportations.”

Tim Finch of the Refugee Council said the judge could not have made his decision clearer.

“He said if you are a failed asylum seeker… you shouldn’t be sent back to Zimbabwe because you face a real risk you will be persecuted just by virtue of coming here and trying to find a place of safety and sanctuary.”

“It is a credit to those 140-odd Zimbabweans who staged a hunger strike while in detention this summer, who forced this issue to the top of the agenda. They can now feel reasonably secure. This judgment shows that although they have no status as failed asylum seekers they cannot be removed.”

Thea Rogers, Deputy Chief Executive of the Refugee Legal Centre, said:

“We are very pleased at the outcome of this test case. The Tribunal has found that Zimbabwean asylum seekers have a very real fear of persecution. We call on the Home Office to accept the Tribunal’s decision and grant refugee status to all Zimbabwean asylum seekers.”

An Amnesty International spokeswoman said:

“Amnesty welcomes today’s decision because we know the human rights situation in Zimbabwe is now catastrophic. The tribunal recognised that Zimbabweans who seek asylum in the UK are at special risk. This is correct.”

The Home Office had previously indicated that they would consider the outcome as critical to their policy. It is clear from this ruling that all removals to Zimbabwe will remain suspended temporarily until the Government decides how to respond.

The government will need to consider what measures it can take to address the concerns raised by the tribunal, particularly those in relation to monitoring of the safety of failed asylum seekers returned to Zimbabwe.

Other information:

The Refugee Legal Centre is expected to issue a statement and briefing over the next few days which will be available via our website. We will ensure that any further information will also be reported.

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