There is new hope for Zimbabwean asylum seekers following a legal judgement on the risks of returning Zimbabweans to potential persecution and to a desperate humanitarian situation.

For years, the situation in Zimbabwe has been at crisis point, both politically and in simple humanitarian terms. Mugabe and his ZANU-PF war veteran cronies have bullied, harassed and persecuted those suspected of disloyalty and have bulldozed urban squatter settlements to drive potential opponents into the countryside. Meanwhile, they have ransacked the country’s sparse foreign exchange to pay for luxury goods, while basics like flour, sugar, toilet paper and soap are unobtainable for most; electricity is a luxury; the health service has virtually disintegrated and essential medicines are unavailable. The British government has been vociferous in its condemnation of Mugabe. Yet its treatment of his victims has failed to match the recognition of the catastrophe in their country.

Years of litigation on returns

The Home Office’s refusal to recognise the impossibility of return by a general grant of asylum or humanitarian protection has led to much litigation over the past few years. Removals of failed asylum seekers, which were suspended in October 2002, were resumed in November 2004. In October 2005, the Asylum and Immigration Tribunal ruled that Zimbabweans could not lawfully be returned because of the risks of ill-treatment by secret police and ZANU-PF militants. In its decision, the tribunal condemned the government for ‘an alarming lack of interest’ in the fate of deported Zimbabwean refugees. But the Home Office appealed the decision, and in June 2006 the Court of Appeal told the Tribunal to reconsider. In August 2006, the Tribunal duly reversed its decision, to the anger and dismay of Zimbabweans and those working with them. In November 2007, the Tribunal decided another test case in favour of the government, saying that not all failed asylum seekers were at risk of ill-treatment in Zimbabwe and that the conditions there, while bad, were not so bad as to justify granting Zimbabweans humanitarian protection. In March 2008, the government caused a storm by announcing its intention to resume forced removals, suspended since the October 2005 decision.

Asylum seekers in limbo

Although the threat was averted, thousands of Zimbabweans have been living in immigration limbo, in complete destitution, because despite the policy not to enforce removal, the Home Office maintains that they are perfectly able to go home voluntarily, and so are not generally entitled even to the most basic ‘hard cases’ support of hostel housing and vouchers for basic necessities which are provided to failed asylum seekers who can’t go home. Many have resorted to illegal working, where they face severe exploitation and the constant risk of arrest and imprisonment. Zimbabweans make up a large proportion of those arrested in immigration raids and sentenced to up to nine months in prison for using false documents to obtain work.

The November 2008 decision

Now, the latest legal decision brings a modicum of hope to these Zimbabweans, who have been in limbo for so long. In its decision on the latest test case, issued in November 2008, the Tribunal has still not reverted to its 2005 position of holding all Zimbabweans to be at risk on return, but has accepted that an unacceptable risk of ill-treatment will arise for anyone who cannot demonstrate loyalty to the regime, which has not been reduced by the power-sharing agreement with Morgan Tsvangirai of the Movement for Democratic Change. There is a sting in the tail: claimants will have to prove that they will be in this situation, which is likely to be difficult, particularly for those who have been disbelieved in the past.

The Tribunal also accepts in this decision that ‘general country conditions and living conditions for many Zimbabwean nationals have continued to deteriorate since the summer of 2007. Some may be subjected to a complete deprivation of the basic necessities of life, for example access to food aid, shelter and safe water, the cumulative effect of which is capable of enabling a claim to succeed under article 3 of the ECHR‘ [ie to justify the grant of humanitarian protection, with a five-year renewable residence permit and concomitant rights to work, to study and to claim benefits].

Although it stops short of saying that this applies to all claimants, in reality most Zimbabweans in the UK should be able to succeed under this head. However, the limited terms of the judgement mean that Zimbabwean failed asylum seekers will now have to put in fresh claims to the Home Office – at a time when immigration minister Phil Woolas is threatening to put an end to fresh claims and to reduce the rights of those making them to seek judicial review of refusal. The desperate situation of Zimbabweans stuck in limbo here while their country falls to pieces, and the saga of the litigation on the risks they face, demonstrate just how vital it is to keep all legal avenues open. But it is also a standing reproach to the government, and its determination to keep the numbers of successful claims down, at the expense of those who need refuge.