HT: 14.4pt”>LONDON – The Appeal Court last week heard the appeals of the Home Secretary against decisions taken in the last weeks of 2005 by the Asylum and Immigration Tribunal (AIT) which had the effect of preventing the Home Office from sending back to Zimbabwe asylum-seekers whose claims had failed.
The Home Office was seeking to overturn decisions in two cases – known as AA and LK. The AIT decided that because of the way in which the Home Office sends such persons back to Zimbabwe, giving their travel documents to the air-crew, who on arrival would pass them on to Immigration, it was inevitable that the CIO would become aware of their return, and would subject them to investigation with the real risk of persecution (detention, beating, etc.)
AA had good cause to fear such treatment, which would have been inflicted because of the political opinion imputed to him by the CIO (disloyal to Zimbabwe, collaborator with Britain, potential spy, etc). He was therefore a refugee within the terms of the 1951 Refugee Convention and entitled to refugee status. This decision made it impossible for the Home Office to return any failed asylum seekers to Zimbabwe using its previous method, and it has not yet come up with an alternative method.
LK had achieved refugee status on the basis of sexual orientation. But the AIT reiterated the earlier finding in AA’s case, and the Home Office decided to challenge both. In the course of the appeal hearings it emerged that since AA, Immigration Judges in other Zimbabwean cases have been simply asking appellants if they were unwilling to return. If ‘yes’, they won their appeals through the application of the AA ruling. However, the Home Office has not granted refugee status to any successful appellants because of its current challenge to AA.
Counsel for the Home Office argued that in the case of AA the Tribunal had erred in failing to take account of evidence that ran against the conclusion that the CIO would know which returnees were failed asylum-seekers. (It was common cause between the parties that other involuntary returnees such as overstayers were probably not at risk in the same way as asylum-seekers).
The Home Office lawyers also sought to persuade the court that failed asylum-seekers remain in the UK only because they don’t want to return, and that sending them home was therefore not a breach of the UK’s obligations under either the Refugee Convention or the European Convention of Human Rights. Article 3 of the ECHR prohibits subjecting any person to torture, inhuman or degrading treatment.
The Court’s decision is expected shortly before Easter (14th April). There are several possible outcomes. The 3-man bench could uphold the AIT decision in LK but not in AA, or vice versa. It could refer the previous decision in either case back to the AIT for reconsideration of some legal point or for taking additional evidence on one or other of the moot points of fact. In certain outcomes the lawyers for the appellants (the Refugee Legal Centre) might seek to contest the decision by going to the House of Lords. In short, the fate of failed Zimbabwean asylum-seekers will continue to hang in the balance for several weeks, possibly months.