AA (Risk for involuntary returnees) Zimbabwe CG  UKAIT 00061
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 3rd and 7th July 2006
Date Determination notified: 2 August 2006
Senior Immigration Judge Southern
|Secretary of State for the Home Department||RESPONDENT|
DETERMINATION AND REASONS
A failed asylum seeker returned involuntarily to Zimbabwe does not face on return a real risk of being subjected to persecution or serious ill-treatment on that account alone.
SM and Others (MDC internal flight- risk categories) CG  UKIAT 00100 is reaffirmed. Two further risk categories are identified: those whose military history discloses issues that will lead to further investigation by the security services upon return to Harare Airport and those in respect of whom there are outstanding and unresolved criminal issues.
A deportee from the United Kingdom who, having been subjected to the first stage interview at the airport, is allowed to pass through the airport is likely to be the subject of some monitoring in his home area by the local police or the CIO but the evidence does not indicate a real risk of persecutory ill-treatment for those who are being monitored solely because of their return from the United Kingdom.
The general country conditions are extremely difficult but those difficulties will not generally be sufficiently severe to enable an appellant to rely upon article 3 to resist removal.
"There is no doubt in our mind that the Appellant's claim to asylum was, in all its substantive parts, fraudulent, and that the Appellant himself has been deliberately dishonest in almost all his dealings with the authorities in this country."
That finding of fact is not challenged before us and we adopt it.
Overview of the evidence
The key issues
"This case is concerned firstly with whether it is presently safe for the SSHD to re-commence expelling asylum seekers to Zimbabwe by the same route and method as he adopted between November 2004 and July 2005 (the only period during the last four and a half years that such removals have been effected), ie whether there is now "no real risk" that such persons will face any treatment contrary to Article 3.
A second issue arises as to what risks AA would face if he were hypothetically to return to Zimbabwe voluntarily (there being no evidence that he would actually be willing to do so, and the Immigration Judge having found as a fact that he had a genuine subjective fear). This question determines whether AA (and others in the same position) are entitled to the rights conferred by the Refugee Convention while in the UK."
Mr. Kovats puts it more specifically:
"There are four principal issues, namely whether any of the following classes of returnees from the United Kingdom to Zimbabwe have as such (i) a well founded fear of persecution for reasons of imputed political opinion or membership of a particular social group or (ii) are as such at real risk of torture or of inhuman or degrading treatment or punishment:
1. failed asylum seekers whose return is enforced by the Home Office ("involuntary FAS");
2. failed asylum seekers who return voluntarily ("voluntary FAS");
3. all Zimbabweans, whether or not they have claimed asylum, whose return is enforced by the Home Office ("involuntary returnees");
4. all Zimbabweans, whether or not they have claimed asylum, who return voluntarily ("voluntary returnees")."
The correct test for assessing "real risk"
"The Appellant's claim succeeds if he shows a real risk: he does not need to prove a certainty. As we have attempted to explain above, the claim that every person returned involuntarily is at real risk of ill-treatment is not a claim that every one will in fact suffer ill-treatment. Likewise, looking at the past, the Appellant does not need to show that all those who have been returned involuntarily did suffer ill-treatment. He is entitled to rely, as he does, on evidence pointing to a substantial number of cases in the context of general evidence showing the source or reason for the risk."
" "In those circumstances, as it seems to me, the 'real risk' could not be established without its being shown that the general situation was one in which ill-treatment of the kind in question generally happened: hence the expression "gross and systematic". The point is one of logic. Absent evidence to show that the appellant was at risk because of his specific circumstances, there could be no real risk of relevant ill-treatment unless the situation to which the appellant would be returning was one in which such violence was generally or consistently happening. There is nothing else in the case that could generate a real risk. In this situation, then, a "consistent pattern of gross and systematic violation of fundamental human rights", far from being at variance with the real risk test is, in my judgment, a function or application of it."
"37. I want to add a word, however, about the evaluation of conditions which are alleged to create a real risk of inhuman treatment. The authority of this court has been lent, through the decision in Hariri, to the formulation that ill-treatment which is "frequent" or even "routine" does not present a real risk to the individual unless it is "general" or "systematic" or "consistently happening": see paragraphs 9 to 10 in the previous judgment.
38. Great care needs to be taken with such epithets. They are intended to elucidate the jurisprudential concept of real risk, not to replace it. If a type of car has a defect which causes one vehicle in ten to crash, most people would say that it presents a real risk to anyone who drives it, albeit crashes are not generally or consistently happening. The exegetic language in Hariri suggests a higher threshold than the IAT's more cautious phrase in Iqbal, "a consistent pattern", which the court in Hariri sought to endorse.
39. There is a danger, if Hariri is taken too literally, of assimilating risk to probability. A real risk is in language and in law something distinctly less than a probability, and it cannot be elevated by lexicographic stages into something more than it is."
The existing country guidance:
SM and Others (MDC internal flight- risk categories) CG  UKIAT 00100
"41. The Tribunal accepts from (Professor Ranger's) evidence and from the news reports in Zimbabwe that those deported to Zimbabwe from the United Kingdom will be subject to interrogation on return. In the light of the interest and comment the resumption of returns has raised in the government press in Zimbabwe it seems to us to be inevitable that this will be the case. If it is being asserted by the Zimbabwe government that returns are being used as a cloak for British agents and saboteurs to be smuggled into the country, it is likely that those returns will be carefully monitored whether for that reason or to identify and intimidate opponents to the regime. The reports in the newspapers in Zimbabwe are consistent with there being an atmosphere of suspicion to those returned. The returnee in the New Zimbabwe report was released following a telephone call made to an uncle serving in the army but only after an intimidating interview. We take into account that before returns were suspended there was some evidence that returnees were investigated. We have our doubts about the story of the returnee in the article from January 2002 and his escape out of an airport lavatory window at Harare and his subsequent travel to South Africa, but in any event we are concerned with returns at the present time. We also approach with caution the reports that a number of recent returnees have never re-appeared once they were taken from the plane by CIO agents and that others have disappeared. No names or details have been provided and if, as Professor Ranger says the returns have been carefully monitored, we would have thought such details would be available.
42. Nonetheless the Tribunal is satisfied in the light of the statements made by the Zimbabwean authorities that returnees are regarded with contempt and suspicion on return and do face a very hostile atmosphere. This by itself does not indicate that all returnees are at real risk of persecution but that returnees are liable to have their background and circumstances carefully scrutinised by the authorities. We are satisfied that those who are suspected of being politically active with the MDC would be at real risk. We agree with Professor Ranger that if the authorities have any reason to believe that someone is politically active the interrogation will be followed up. There is a reasonable degree of likelihood that this will include treatment sufficiently serious to amount to persecution."
The first returnee referred to in paragraph 41 who escaped through the lavatory window has been identified by name by Professor Ranger as Witness 8 whose statement was considered by the first Tribunal and who is returnee 26 in the list of cases we analyse below. His case was considered by Professor Ranger in his first report as was the second individual who was released upon intervention by her uncle, a serving soldier. This individual, identified as "Ratizo" is returnee 31 in our list of returnees.
a) There does continue to be a real risk of persecution for those who are or are perceived to be politically active in opposition to and for this reason of serious adverse interest to the present regime. This can potentially include the categories identified in paragraph 43 but none of these factors by itself is determinative. Each case must be looked at on its own individual facts. Some categories are more likely to be at risk than others such as MDC activists and campaigners rather than supporters but we do not exclude the possibility that in exceptional cases those with very limited political involvement could in their particular circumstances find themselves at real risk.
b) The risk to political opponents is increased both before and immediately after elections but this fact is of limited importance and is only likely to have any material bearing in borderline cases.
c) There does continue to be a risk for teachers with an actual or perceived political profile of support for the MDC.
d) Records are kept by various groups and authorities including the CIO, local police and Zanu-PF party organisations and the war veterans but the existence of these records does not materially add to the assessment of the risk of persecution in an individual case which depends on the applicant's profile and background. It seems to us unlikely that someone who has been caught up in random and intimidatory violence would without more be regarded as of continuing interest to the authorities. However, the fact that these records exist may indicate that an applicant found to be at risk is unlikely to be able to relocate in safety. In this context it will also be important to take into account whether the risk is from the authorities or from a local branch of Zanu-PF or locally based war veterans.
e) The current atmosphere of hostility to the return of failed asylum seekers does not of itself put at risk those who would otherwise not be at real risk but does serve to reinforce the fact that asylum claims must be considered with care and where there is any uncertainty, any doubts must be resolved in the applicant's favour.
f) The fact of being a white Zimbabwean does not of itself put an applicant in danger
g) Where an applicant is at risk in his home area, the assessment of internal relocation must take into account the fact that there is a network of information available to the authorities, ZANU PF and war veterans. An applicant who is regarded as an active political opponent in his home area may not to be able to relocate in safety but this is a question of fact to be assessed in the circumstances of each case.
h) The use of grain distribution as a way of taking reprisals against political opponents does not arise in this appeal. We do not rule out the possibility of a case succeeding on this ground alone but the evidence would have to be clear and compelling. In so far as this was an issue in Ndlovu  EWCA Civ 1567, the case turned on the findings of fact made by the Adjudicator. The Court of Appeal held that the Tribunal was wrong to find that the Adjudicator had erred in law but also emphasised that the adjudicator's decision did not and could not create a factual precedent of any kind.
i) There is no general risk for failed asylum seekers of a breach of article 3 as a result of the current hostility towards such returnees.
And for the sake of completeness we set out also paragraph 43 of SM, referred to in sub paragraph (a) above:
"In his submissions Mr Huffer argued that those suspected or perceived of being associated with the opposition have included activists, campaigners, officials and election polling agents, MDC candidates for local and national government, MDC members, former MDC members, MDC supporters, those who voted or believed to have voted for the MDC and those belonging to the MDC, families of the foregoing, employees of the foregoing, those whose actions have given rise to suspicion of support for the opposition such as attending an MDC rally or wearing a T-shirt, attending a demonstration, teachers and other professionals, refusal to attend a ZANU-PF rally or chant a ZANU-PF slogan or not having a ZANU-PF membership card. The Tribunal accept that these categories illustrate those who might be at risk but each case must depend upon its own circumstances. In a number of cases the Tribunal has drawn a distinction between low level and high level political activities. The situation in Zimbabwe is arbitrary and unpredictable and in these circumstances such a distinction is not determinative. The phrase "low level activities" is sometimes used as a way if describing someone whose background and profile is such that it is thought that he would not be of interest to the authorities but someone whose political activities may have been at a low level may have become of interest to the authorities. The current position taken by the Tribunal that each case must be decided on its individual facts should be continued. This approach has been endorsed by the Court of Appeal in Mhute  EWCA Civ 1029 and Ndlovu  EWCA Civ 1567. The factors identified by Mr Huffer are relevant to the assessment of risk but cannot be regarded as by themselves determinative in any particular appeal."
The objective country evidence
"The population of Zimbabwe is about 12m: April 2006 Country of Origin Information Report on Zimbabwe ("COIR") paragraph 2.04 [p.147]. About 82% are Shona: COIR paragraph 6.111 [p.274]. The Shona are not homogenous but comprise several clans, of which the Zezuru (President Mugabe's clan) is the second largest: COIR paragraph 6.112 [pp.247-248]. About 20% are Ndebele (aka Matabele): COIR paragraph 6.113-114 [p.248].
The economy is in protracted decline: COIR paragraph 3.02 [p.148]. Real wages are falling, including in the government sector: COIR paragraph 3.06 [p.149]; Integrated Regional Information Networks News (IRIN) 27/04/2006 [p.971]. Inflation is over 1,000% per annum: IRIN 08/06/2006 [p.944]; Sunday Times 09/06/2006 [p.1001]. Unemployment is around 80%: IDMC [p.496]; IRIN 27/04/2006 [p.972].
About 5m people in Zimbabwe, including nearly 3m (52% [p.756]) in rural areas, are unable to meet their minimum food requirements without aid: COIR paragraphs 5.94, 6.275 [pp.193, 290]; IDMC [p.539]. In 2004/05 the country produced only 600,000 of the 1.8m tonnes of maize required: COIR paragraph 6.278 [p.291]. A shortfall of 1m tonnes is estimated for 2006/07: Solidarity Peace Trust April 2006 [p.756]. There are reports of villagers being reduced to eating wild foods and scavenging: COIR paragraphs 6.281-282 [pp.291-292]. The UN World Food Programme has agreed to feed at least 3m people in Zimbabwe this year: COIR paragraph 6.294 [p.295]. 30% of water systems in rural areas are non-functional: IDMC [p.499]. Most urban water and sewerage systems have broken down: IDMC [p.546].
Operation Murambatsvina deprived around 700,000 people of their homes and/or livelihoods and affected, directly or indirectly, some 2.4m people: COIR paragraph 6.302 [p.297]. It has been estimated that nearly 115,000 are living in the open, that a similar number have gone to rural areas, and that about 170,000 have been absorbed by extended families and that a similar number are in churches and other temporary accommodation: IDMC [p.527]. But the numbers are uncertain, not least because there was no comprehensive UN registration of internally displaced persons: IDMC [p.524]; Human Rights Watch December 2005 [p.726]. The motives for Murambatsvina remain unclear: IDMC [pp.496-497, 499, 514-515]. The Attorney General has refused calls for a new voters' roll following Murambatsvina (Zimbabweans can vote only in the constituency in which they are registered): IDMC [p.563].
Operation Garikai ("live well") has done little to remedy this: it is unbudgeted and the eligibility criteria favour State employees: COIR paragraphs 6.312-313 [p.300]; IDMC [pp.571, 573]; Solidarity Peace Trust [p.757]. It has been reported that it has become harder for deportees to find shelter in Harare and Bulawayo: COIR paragraph 6.316 [p.301]. As long ago as 2000 the government estimated that there was a shortfall of over 1m housing units: IDMC [p.513].
The average life expectancy in Zimbabwe is 34 for women and 37 for men. This is the lowest in the world: WHO [p.1001] (2002 figures are at COIR paragraph 5.95 [p.193]). Over 24% of the population is HIV+: COIR paragraph 5.112 [p.198]; IDMC [p.496]. Over 3,000 a week are dying of AIDS: COIR paragraphs 5.95, 5.113 [pp.193, 198]. There are 1.3m orphans, 75% as a result of AIDS: IDMC [p.499]. Child mortality increased from 59 to 123 per 1,000 live births between 1989 and 2004, and the maternal mortality ratio nearly doubled between 1999 and 2002: IDMC [p.542]. Prison mortality rates are high, due to lack of money resulting in overcrowding and lack of drugs, leading to diseases such as AIDS and tuberculosis: ZimOnline 07/02/2006 [p.990].
Foreign Policy magazine and the Fund for Peace ranked Zimbabwe fifth out of 148 in its index of failed states, the worst outside a war zone [p.969].
Ordinary soldiers are deserting in increasing numbers, citing low salaries and food shortages, and have been turning to crime: IRIN 06/06/2006 [p.979]; International Crisis Group (ICG) 06/06/2006 [pp.660, 670]. Soldiers have been sent on compulsory leave and barracks have been closed [p.670]. Junior officers are leaving because of poor pay and lack of food: Sunday Times 09/04/2006 [p.1001]. Anti-Mugabe graffiti have appeared in barracks toilets: The Zimbabwean 11/05/2006 [p.1024]. Soldiers have been sabotaging army equipment in disgruntlement: Solidarity Peace Trust April 2006 [p.758]. The police are allegedly now involved in smuggling rings [p.18]. Further, Operation Murambatsvina did not spare the War Veterans, and this marked a turning point in the government's relations with this group: COIR 6.228 [p.276].
Military officers have taken senior positions in many State enterprises: Institute for War and Peace Reporting (IWPR) 31/05/2006 [p.1007]. The MDC say that all basic foods are now under military control [p.1007]. Putting the army in charge of food production (Operation Taguta [p.750]), as well as food distribution (COIR 6.284 [p.292]) may in part be an attempt by the government to strengthen the loyalty of soldiers: Solidarity Peace Trust April 2006 [pp.758-759]. The soldiers' farming practices have reduced the independence of civilian farmers and consumers: Solidarity Peace Trust [p.749, 753, 761-762, 765]. The rural population is unhappy with the soldiers: Solidarity Peace Trust [pp.759, 768].
The judiciary is largely compliant and corrupt, independent judges having been forced out: IWPR 31/05/2006 [p.1009-1011]. Moreover, the government has ignored court orders, eg the Porta Farm evictions: Amnesty International 31/03/2006 [p.627].
Over 3m Zimbabweans live abroad and many of them remit much-needed foreign currency to Zimbabwe: COIR paragraphs 3.08, 6.283 [p.149]. In September 2004 56% of doctors', 32% of nurses' and 92% of pharmacists' posts were vacant: IDMC [p.542]. The Government of Zimbabwe has disenfranchised Zimbabweans living abroad: COIR paragraph 4.20 [p.155]. The Citizenship Act revokes the citizenship of Zimbabweans who fail to return to the country for 5 years, subject to certain exceptions, but there are no reported cases of its being applied: COIR paragraph 5.10 [p.172]."
" said that the low number of court cases was attributable to the fact that merely reporting human rights violations to police carries a high risk of being arrested, beaten up and illegally detained. The country's economic crisis has also cut the rate of court litigation because many ordinary people cannot afford the cost of transport to court or to see lawyers.."
"Police were the most common perpetrators. "People in custody are likely to be beaten irrespective of their alleged crime", political or criminal, and are commonly subjected to falanga the excruciatingly painful practice of beating the soles of the feet, which leaves little obvious bruising. Police had "adopted torture as a means to eliciting confessions on a widespread basis"
The evidence of Professor Ranger.
"Threats by the United Kingdom to deport about 10,000 Zimbabweans could be a cover to deploy elements trained in sabotage, intimidation and violence to destabilise the country before and during next March's parliamentary elections There was a need for the country to be vigilant There had been, for some time, a number of media reports that as part of Britain's illegal regime change agenda, it had been training some Zimbabweans in acts of sabotage and violence. "
"And in fact all these disasters have befallen Moyo, who thereafter sat for Tsholotsho constituency as an independent, who has now been denounced as a traitor, and who has reverted to being an outspoken critic of Mugabe. But the question is whether this repudiation of Moyo amounts to a repudiation of his statement on asylum seekers."
Because the Minister for Justice, Patrick Chinamasa, was disgraced at the same time as Moyo and because there is evidence that President Mugabe was reluctant to discipline Moyo and sought to resist pressure to dismiss him, Professor Ranger's view is that Moyo's comments do continue to represent those of the regime and Moyo's dismissal had nothing to do with any desire of the regime to disassociate itself with his comments upon asylum seekers. Moyo was not sacked from the cabinet until February 2005, some considerable time after his comments reported above.
"We would be better off with only six million people, with our own people who support the liberation struggle. We don't want all these extra people."
Professor Ranger, who states that beatings during interrogation are a "fundamental part" of CIO practice and that the CIO was preoccupied with the making of lists, said this:
"I have personal knowledge through mutual friends that Mutasa believes that many British spies have been infiltrated into the country. He told a friend that many Aids workers were spies. He is just as likely as Moyo was to suspect agents among the asylum deportees and to expect the CIO to "protect" Zimbabwe against them."
Despite this, when considering the nature of the lists complied by the CIO, Professor Ranger refers to lists being made of reporters, students, school teachers, urban and rural MDC activists and suspect civil servants but not those who were known to have been to the United Kingdom, whether to seek asylum or otherwise.
"My answer is once again a development from the evidence I gave to the IAT in February. There I pointed to cause for considerable concern but was cautious given the very short period that had elapsed since the suspension had been lifted. Since then there has been evidence of violence in several cases. The objective situation has worsened in many ways. The effect of the clean up operation has been to make urban accommodation scarce and expensive. People going to the rural areas from the towns have been excluded from food relief lists drawn up by headmen. The food shortage is worse than it was. It is now my opinion that there is a substantial risk that anyone removed following an asylum claim will be dealt with violently and oppressively; some will be detained and tortured; others will be released but remain under surveillance and threat. Their families may well be frightened to associate with them. The urban "clean up" and rural food shortages will make it difficult for them to return to their homes or to relocate."
Two things might be noted about that paragraph. The Professor bases his view upon a deterioration in the country situation generally and the fact that there has been "evidence of violence in several cases". This illustrates the importance in this case of undertaking a careful examination of that evidence and reaching some assessment of its reliability. Secondly, the Professor speaks of "substantial risk" but that term, in the context we must consider it, must be used in light of the discussion set out at paragraphs 25-31 above.
"All this in combination reveals both a political and human rights crisis in Zimbabwe. It is a crisis which gives rise to paranoiac fantasies of terrorist plots and which criminalises anyone connected to Britain. The state has shown itself ready to arrest, beat and torture women, children and students. There are attempts to destroy human rights organisations. I am very much still of the opinions expressed in my previous reports."
"The new policy makes no pretence that Zimbabwe has become a safer place since 2002. The Government says that there has been no change "in our opposition to human rights abuses in Zimbabwe" and that it will work "to restore democracy so that all Zimbabweans can in time return safely to help build a prosperous and stable Zimbabwe". In the meantime, however, it proposes to send many Zimbabweans back to an unstable Zimbabwe in a state of economic collapse and with continuing human rights abuses. What has changed since 2002 is not Zimbabwe but the British political climate. In 2002 Zimbabwe was much in the news because of the take-over of white-owned land. Even the Conservative Party supported the suspension of removals. Now Zimbabwe has dropped out of the news headlines. Few British politicians care much any longer about what happens to black Zimbabweans. "
"The security services have absolutely nothing against them. If they left this country and did not commit any crime, why should we be interested in them? We will look after them very well here."
He added that they should be contributing to economic development in Zimbabwe instead of wasting time and money in the UK. This, the respondent submits, is further evidence that the Zimbabwean authorities are now primarily concerned to revive the country's economy. Mr Mutasa's remarks are also significant because his rhetoric is usually conspicuously aggressive, e.g. (5/673) "no white farmer is being invited back" even though commercial farmers are now being invited to apply for 99 year leases in a reversal of the misguided land seizures. It is also directly contrary to his "notorious" November 2002 statement, referred to above, that Zimbabwe "will be better off with only six million people, with our own people who support the liberation struggle. We don't want all these extra people."
Procedures at Harare Airport
"Major [ ] told me that all the returned asylum seekers are questioned because they are all considered to be a security risk. It is believed by the security services that the returned asylum seekers have been trained in military procedures and espionage in the UK and are now being sent back to destabilise the country. He told me they are all handed over to the CIO who carry out thorough questioning and then decide what is to be done. Major [ ] went on to tell me that those asylum seekers who are released are nonetheless kept under surveillance."
"I set out below in outline, the procedures that applied (and that, I believe, still apply) when a Zimbabwean citizen is deported back to Zimbabwe from another country. These are standard and longstanding procedures. I am in regular touch with former colleagues who still work at the airport, and I have no reason to believe that these procedures have changed significantly. These procedures would also apply where a person had been identified from the passenger manifest and was of interest."
"In the interview room, each agency would interview the deportee about any issues of concern they might have. For example, the police would interview the deportee about any criminal matters that might be outstanding, the military about whether the deportee was a former soldier and any issues about being absent without leave or having conducted military activities outside Zimbabwe, and the CIO would check for any political activities.
Once it was decided which agency would have custody of the deportee, the deportee would be taken by that agency for interrogation with the benefit of the report of the agency that had led the airport interview."
In his oral evidence this witness made clear, as did Witness 5, that not all deportees were taken away by one of the three agencies for interrogation. He said "It depends how valuable the subject is whether they were taken away". When a person is released that was not the end of it as there would be monitoring in the persons home area.
"It should be understood that there is a significant difference between a person being interviewed (eg on arrival at the airport), and a person being interrogated. Within the Zimbabwean intelligence community, the implication of a person having been interrogated (and hence an interrogation report) is that the interrogated person will have been ill-treated."
And in his oral evidence:
"There is not an interrogation at the airport, just an interview. I took part. That's why I was there, to interview. When the detainee was taken away from the airport he is handed over to somebody else."
"People in Harare are well briefed by people in London so they know who they are interested in. If you do any activities in the UK you put yourself in a situation. This is so we have a record to be used to be a member of this organisation in London you must be monitored. I know that because that is what happened when I worked at the airport."
"The questioning at the airport was intelligence led. We knew something about it. Our purpose was to produce a true and good report. We were not trying to cook up a case. We do not cook up intelligence."
The International Organisation for Migration (IOM)
"Extensive monitoring and evaluation of returned Zimbabweans who avail themselves of reintegration assistance is conducted throughout the country. With this mechanism in place, staff would be able to pick up any reports of mistreatment of returned failed asylum seekers. In its history of the programme, there was only one incident reported in March 2003, which involved the CIO and a returnee in Bulawayo. The IOM Director General immediately wrote a protest letter to the Zimbabwean government. In the Government of Zimbabwe's response, they stated that the activity had been carried out by the local CIO operatives in Bulawayo acting without approval of the government. They apologised and assured IOM that it would not happen again. There have been no further incidents of harassment to Zimbabwean returnees from the UK. Any future incidents of mistreatment or harassment of returnees would be reported to the British Embassy in Harare."
"First, in relation to the evidence we have heard, it is possible that we might have taken a different view if the Government had made any arrangements to ensure so far as possible that those returned voluntarily and those returned involuntarily are not so readily distinguishable on arrival. A part of the risk we have identified arises from the Government's apparent disinterest in the precise way in which passengers documents are dealt with by airline staff. It is also possible that we might have taken a different view if there had been evidence from the field report visit or otherwise that substantial numbers of failed asylum seekers, returned involuntarily from the United Kingdom, had passed through Harare Airport without any problems. If the Government is concerned to avoid risk to individuals and in making policy decisions based on fact, it will no doubt carefully monitor returns to any country regarded as dangerous, and will present the resulting facts as evidence in asylum appeals."
"The Ministry of Home Affairs has long identified improving border management as a top priority and requested the IOM to provide the technical expertise for the landlocked Zimbabwe. In an interview, Chief Immigration Officer Mr Elasto Mugwadi said the process of computerisation would enhance their networking with other stakeholders and see the country's security against undesirable elements enhanced,"
"My perception is that IOM is apolitical and so it does not criticise the government so it can get on and do its work. That is why it is left alone."
"The evidence of the Zimbabwe-based NGOs
53. Evidence about the likely fate of those who were returned compulsorily from this country was also available from the sources mentioned in the field report and from four witnesses who gave evidence which supplemented the evidence that had been given by representatives of their organisation to the delegation of which Mr Walker was a member. The evidence of seven of these sources requires particular attention: the evidence from the others was of marginal value.
54. Source F was a NGO to whom the British Embassy often turned for information about cases like these. Their representatives told Mr Walker that if the authorities were interested in an individual it would be because of their political opinions, and not because they had sought asylum in the United Kingdom. They also said that the fact of being a returned asylum seeker could result in aggressive questioning at the airport in order to ascertain whether they were opposition supporters, but they felt that if they were found not to be they would no longer be of any continued interest to the authorities. They were, however, unable to discount the possibility that they could remain of interest.
55. It was their view that those who distributed leaflets for the MDC or put up posters and arranged meetings for the MDC ("the MDC foot soldiers") were most at risk of persecution because they were vulnerable, easily picked up and beaten. Such treatment was unlikely to attract adverse comment. In contrast, the higher profile activists were protected to a degree by their own profile and the outcry that could follow mistreatment.
56. A witness from Source F told the AIT that he agreed with Source D's belief that anyone returning from the UK or the United States would be liable to interrogation on return on suspicion of being a spy or an agent. He believed that the interrogation would include more than being required to answer questions, and was likely to include ill-treatment.
57. Source A was identified as the Human Rights NGO Forum. Their representative told Mr Walker that if there were genuine cases of mistreatment involving failed asylum seekers, this would not occur just because they had sought asylum in the UK but rather because they had political opinions and had been involved in political activities.
58. Zimbabwe Lawyers for Human Rights (Source J) told Mr Walker that returnees from the United Kingdom faced questioning at the airport on return to Harare and that the Government of Zimbabwe might regard the very act of leaving for certain overseas countries, including the UK, as constituting treachery. Their spokesman cited the example of an enforced returnee (who was not in fact a failed asylum seeker) who had been questioned about reports to the effect that Zimbabweans were being trained as spies and insurgents in the UK. He said that the CIO were capable of beating people at the airport, but he did not identify any group as being particularly at risk. He said that he had once been harassed by CIO officers in the toilets at the airport, but he had been freed when he said he was a lawyer. He believed that someone less articulate might not have got away so easily. He did not think that at societal level there would be any problems for returning failed asylum seekers.
59. Source D was a church organisation in Zimbabwe. Their spokesman had not heard of any reports of mistreatment being accorded to returning failed asylum seekers or others returning from the UK. He said that the likelihood that his organisation would hear about such things was restricted by the absence of an independent media. He would not rule out the possibility that individual returnees might be persecuted. On the other hand, he felt that if there were any mistreatment of returnees, that could apply to anyone returning to Zimbabwe from the UK or the USA. He went on to say that anyone returning from the UK would be liable to be interrogated on return on suspicion of being one of "Blair's spies". He felt that people visiting the UK as tourists or on business might face some interrogation about their motives and activities on return. Some business people were reluctant on this account to travel to the UK. He felt that returnees from other countries did not encounter these problems.
60. After he had read the field report, a spokesman for Source D made a witness statement in which he confirmed their view that an asylum seeker removed from the UK was likely to be singled out as liable to suspicion as a spy and he would be interrogated. Someone who had sought asylum from the UK would be viewed as a traitor or enemy of the state. Torture during interrogation by the CIO was usual, as was degrading treatment. There was evidence that MPs had been tortured by the CIO, and he observed how much worse the position of an ordinary person under interrogation on suspicion as a traitor would be.
61. A senior spokesman for a regional human rights NGO was referred to as Source B. He said that he did not believe that returning failed asylum seekers would be targeted for mistreatment since it would suit the Government to hold such figures up as examples that this country was not as wonderful as others tended to think. He believed that people who were deported for other immigration offences would be unlikely to face difficulties on return. In his experience they usually got a new passport, saved up, and tried again. He said that Source B's activities were such that they engaged with a wide range of NGOs and others in the field of human rights. He believed that they would have heard if there had been systematic mistreatment of returning failed asylum seekers, and he had not.
62. Source H was identified as the Zimbabwe Peace Project. They had not received reports of any mistreatment of failed asylum seekers or other people returned from this country, but they were aware of such allegations in the press, and they were quite able to imagine that such things might be happening. Their spokesman suggested that one reason why failed asylum seekers might be treated differently from other immigration offenders or others who had visited the UK was that it was assumed that they must have made disloyal statements in pursuit of their asylum claims about the situation in Zimbabwe and the Government in particular. As a result, and based on the treatment that others who were of interest to the Government faced (for example, NGO activists), they could imagine that the treatment they might face would include having their luggage tampered with as well as extended questioning by immigration officials and the CIO. Once picked up by the CIO, it was likely that the line of questioning would extend well beyond the issue in hand to general views, connections and background. He imagined that the treatment for those who were returning from the UK could be worse for those from other countries because of the political climate between the two countries. He said that even though the Security Services had access to sophisticated intelligence, they also acted on the basis of suspicion, for example because somebody had been away for a while. He did not believe that failed asylum seekers were, on the whole, likely to face societal difficulties in the area to which they are returned.
63. The spokesman for another organization (Source C) told Mr Walker that if failed asylum seekers who were returned from the UK were identified as such, they could expect to be questioned by Immigration and the CIO and perhaps even be threatened and accused of betrayal before being released. They might be visited subsequently at home but the source was not aware that any had suffered mistreatment at that stage. He felt that it would definitely know if there had been any systematic mistreatment of returning failed asylum seekers.
64. The AIT received a good deal of evidence on the question whether it was likely that any of these NGOs would be unaware of any systematic ill-treatment of returned asylum-seekers. It is unnecessary to refer to this evidence because the Secretary of State does not challenge on this appeal the tribunal's finding that it was not remotely surprising that they had not heard of there being any general risk. The tribunal based this finding on its belief that Operation Murambatsvina, which may have affected up to 1.5 million people, provided much to distract hard-working NGO officials from the possible plight of a small number of claimants returned by the UK Government during the course of a few months. A much respected representative of Source F said that he believed it was a fantasy that the NGOs would be in a position to monitor returns, and Professor Ranger said that this evidence persuaded him that he had been wrong at the time of the SM hearing to believe that the situation would be carefully monitored. One of the reasons why the NGOs would be unlikely to hear about these cases was because the vast majority of the victims of ill-treatment would not wish to approach an NGO for fear of further harassment by the state."
Evidence concerning the treatment of individual involuntary returnees.
Returnee 1 (R1); Case A
Returnee 2 (R2); Case B
Returnee 3 (R3); Case C
" (R3) was also personally examined by the Medical Director of (the NGO) [Witness 20], who concluded that his case was genuine. [Witness 20] is an internationally respected figure in the treatment of torture."
Returnee 4 (R4); Case D
Returnee 5 (R5); Case E
Returnee 6 (R6); Case F
Returnee 33 (R33)
Returnee 7 (R7); Case G
Returnee 8 (R8); Case H
Returnee 9 (R9); Case J
"She told me that she was alright. However, it was obvious that she did not want to speak in any detail over the telephone, and was fearful of saying anything that might be overheard."
Although this was Ms Harland's interpretation of the conversation, the only information that she obtained from R9 was that she "was alright". There was, then, no evidence that R9 experienced any difficulty in getting through the airport or that anyone has sought to harass her in any way subsequently.
Returnee 10 (R10); Case K
Returnee 11 (R11); Case L
"They have since said that (R11) was in fact detained on arrival for several nights and has since left Zimbabwe."
Returnee 12 (R12); Case M
Returnee 13 (R13); Case N
Returnee 14 (R14); Case O
Returnees 15, 16, 17 and 18 (R15, R16, R17, R18); Cases P, Q, R and S.
Returnee 19 (R19); Case T
Returnee 20 (R20); Case U
"Because of the length of time (nine months) between injury and examination, it cannot be stated with certainty that these scars are a direct result of his assault."
Witness 20 recorded also that:
"On the first examination he admitted to auditory hallucinations, and a constant feeling of persecution, in that people are following him all the time, and that he cannot remain in one place for more than one night.
In view of his extreme anxiety he was commenced upon anti-psychotic treatment, and placed in a place of safety, and after five days his anxiety levels had decreased, but he still displayed signs of paranoia. He was reviewed by a specialist psychiatrist.
The clinical diagnosis of his psychiatric state remains a differential diagnosis until he has settled on his treatment, but is highly probable to be that of a reactive psychosis, secondary to his prolonged detention and torture."
"When pressed by the Tribunal as to what was his submission (the appellant's representative) said, and we consider that he was right to say, that he was not suggesting that there was a risk to all failed asylum seekers which would be sufficient to justify a favourable finding under the Refugee Convention or in relation to Article 3 of the Human Rights Convention. He was saying that the appellant would be viewed with heightened suspicion because of his membership of the MDC and because of his previous activities."
That was in December 2003.
Returnee 21 (R21); Case V
Returnee 22 (R22); Case W
"The appellant claims persecution by the state in the sense that he was detained by police for no good reason and beaten by ZANU-PF youths who act with the tacit approval of the authorities. However, I have rejected all of the appellant's evidence that is relevant to his claim as being untruthful and fabricated."
Returnees 23 and 24 (R23 and R24); Cases X and Y
Returnee 25 (R25); Witness 7
Returnee 26 (R26); Witness 8
"After the escorts left me with the CIO's they initially asked me why I had gone to the UK. At first I said that I had gone to visit. Then one of the CIO's looked at my passport which they had been given by the escorts. The CIO then asked me why it had taken the UK so long to return me to Zimbabwe as my passport showed that I had been refused entry on 19.02.01. When I did not reply one of CIO's went through a small pouch bag that I had with me and found in the bag documents that indicated that I had claimed asylum in the UK. In the bag there was an IND document, an IS96, and copies of UK newspaper articles about the detention of Zimbabwean asylum seekers, including myself, and our attempts to resist return to Zimbabwe.
The CIO's then started to mock me. They seemed already aware of the incidents described in the newspaper articles. They were saying that they knew political activists were fleeing the country to report lies abroad about the situation in Zimbabwe .. They said that they had sources in the UK that informed them about the activities of people like me in the UK and the chaos we were causing. They said that now I would be punished. The CIO's seemed to know about me and the others who had tried to resist return to Zimbabwe. They said a number of times that they were expecting me. I do not know if they meant me personally or just people like me who had claimed asylum and then tried to resist return to Zimbabwe."
Returnee 27 (R27)
Returnees 28 and 29 (R28 and R29)
"When I spoke to them, I thought that doing this would assist them, either by claiming asylum again at some point in the future, or in some other way. I just thought that, if people outside Zimbabwe knew about what was actually happening and in particular what had happened to (R28 and R29) then they would be in a stronger position in the long run."
Returnee 30 (R30); Vincent.
Returnee 31 (R31); Ratidzo
"Ratidzo said her interrogation continued for about three hours. And only stopped when she remembered that she had an uncle serving in the Zimbabwean national army. "I told them about him and asked that they make a phone call so they could confirm my story. They did and my uncle asked them to let me go, promising that he would keep me in check. ..
As I left the building I could still hear the shouts and groans from the other two deportees."
Returnee 32 (R32); Usher
Involuntary returnees identified by the respondent
Returnee 34 (R34)
Returnee 35 (R35)
Voluntary departure cases
Returnee 36 (R36); Case Z
Returnee 37 (R37); Case A1
"Her troubles with the authorities started on her arrival back in Zimbabwe, when she was severely mistreated. She has been in hiding since her release from detention. My information comes from the same sister in the UK as for Case Z."
Returnee 38 (R38); Case B1
Conclusions upon the individual accounts of failed asylum seekers returned involuntarily
"Our experience has been that, regardless of the care that we take, removees and their relatives in Zimbabwe and the UK are fearful of communicating with us in the UK, directly or indirectly. They feel that any publicising of the removee's case to anyone may endanger them."
"Over the years the ZA has observed that a surprising number of asylum seekers with whom we have come into contact, either have no knowledge of human rights organisations in Zimbabwe, or no trust in them."
It has to be said that this is difficult to reconcile with what is said in the Times Online news report to which our attention has been drawn. This says that Zimbabwe Human Rights NGO Forum has reported 15,000 alleged human rights abuses over the last eight years.
"In addition [Source F] is aware that Zimbabweans who have been mistreated by the state and its organs are likely to be extremely reluctant to contact the NGOs for assistance. The reason for this is that Zimbabweans are well aware that:
(a) the act of making contact with an NGO will likely, if it comes to the regime's attention, itself attract reprisal;
(b) many NGOs, notably those involved in the protection and promotion of human rights, are under constant surveillance by the Zimbabwean Central Intelligence Organisation (CIO);
(c) there is a risk that the NGOs, like other elements of Zimbabwean society, have been infiltrated by CIO agents. It is a risk that ordinary Zimbabweans are only too acutely aware of, and the present campaign of repression under Operation Murambatsvina can only heighten paranoia in this regard."
"I also believe, again based on the statements and behaviour of the Zimbabweans I met, that failed asylum seekers returned to Zimbabwe would be very reluctant to report in Zimbabwe harm caused to them by the regime on their return to Zimbabwe."
Involuntary returnees who have not made asylum claims
Summary of conclusions:
" a person who can voluntarily return in safety to the country of his nationality is not a refugee, notwithstanding that on a forced return he would be at risk. Such a person is not outside his home State owing to a well-founded fear of persecution. Neither s 84(1)(g) of the Act of 2002 nor Article 33 of the Convention can begin to demonstrate the contrary, since neither enlarges the "refugee" definition; and a safe voluntary returnee is outside the definition."
Decision upon AA's appeal
a) It was "entirely plausible" that the appellant was arrested on a charge of violent behaviour and held on remand for six months before being released without being prosecuted further. This was because the appellant displayed in his evidence a familiarity with such matters as arrest, charge and imprisonment on remand;
b) The homes of his siblings have been demolished but the appellant's wife and child now live with his father who retains his rural home where he keeps cattle although it has suffered some damage. His wife's father also has a rural home where the appellant could reside;
c) The appellant has a genuinely held fear of facing persecution and abuse upon return solely as a failed asylum seeker.
"For the true object of the Convention is not just to assuage fear, however reasonably and plausibly entertained, but to provide a safe haven for those unfortunate people whose fear of persecution is in reality well-founded."
Summary of Decision.
Senior Immigration Judge Southern.
1. Expert reports of Professor T. Ranger dated 28/07/2005, 2/08/2005 and 8/06/2006
2. Expert report of Dr J. McGregor dated 2/08/2005
3. Commentary upon April 2005 C.I.P.U. Report by Dr McGregor
4. Expert report by Dr David Cortlett dated 26/06/2006
5. Expert Report by Dr N. Kriger dated 26/06/06
6. C.I.P.U. Report April 2005
7. C.O.I.R. April 2006.
8. F.C.O. Report 2005 (Extract)
9. Extracts from Hansard - Parliamentary comment upon returns to Zimbabwe
10. Correspondence from UNHCR, 2005
11. Letter Amnesty International to Rt Hon Charles Clarke MP July 2005
12. Amnesty International Report 10/05/2005
13. Collection of 31 news reports December 2004 to July 2005
14. Report of Joint Home Office and Foreign and Commonwealth Office Delegation to Zimbabwe September 2005
15. C.I.P.U Report October 2005
16. HRW Report 11/09/2005
17. International Crisis Group Report 17/08/2005
18. Home Office OGN August 2005
19. Collection of 19 news reports February - September 2005
20. Newspaper articles concerning Returnee 26
21. Collection of papers prepared by British Embassy staff in Harare following contact with anonomised NGOs
22. Zimbabwean news reports April- May 2006
23. Harare NGO Forum Reports February to April 2006.
24. Report of Internal Displacement Monitoring Centre 5/05/2006
25. Amnesty International / Zimbabwean Lawyers for Human Rights report 31/3/2006
26. Amnesty International Report 2006
27. International Crisis Group Report 6/06/2006
28. HRW Report December 2005
29. HRW Reports 9/02/2006, 18/1/2006
30. HRW statement 20/11 02/12/2005
31. Solidarity Peace Trust Report April 2006
32. BBC News Reports 8/12/2005, 18/04/2006 and 31/05/2006
33. Amnesty International press release 31/05/2006
34. Amnesty International statement 20/11/2003
35. IRIN news reports 7/06/2006,19/05/2006, 27/04/2006, 25/04/2006 and 8/06/2006, 6/04/2006, 5/04/2006, 28/11/2005, 7/06/2006, 5/04/2006, 6/04/2006, 23/03/2006, 14/06/2006, 16/06/2006, 21/06/2006, 26/06/2006
36. Civic Action Support Group Report 10/02/2006
37. Zim On line reports 18/05/2006, 19/04/2006, 19/04/2006, 20/03/2006, 15/03/2006, 7/02/2006, 6/12/2005, 5/11/2005, 2/06/2006, 22/05/2006, 25/04/2006, 6/04/2006, 1/04/2006
38. Voice of America news reports 15/05/2006, 8/05/2006, 14/11/2005, 23/06/2006
39. Zimbabwean Lawyers for Human Rights news reports 10/05/2006, 6/05/2006, 3/05/2006, 15/02/2006
40. SW Radio Africa (UK) reports 22/03/2006, 6/06/2006, 2/06/2006, 15/06/2006(2), 26/06/2006
41. The Independent (Zimbabwe) news report 16/06/2006
42. Institute for War and Peace Report 22/03/2006, 13/12/2005, 31/05/2006 (2), 19/05/2006, 21/04/2006, 21/04/2006, 21/03/2006
43. Sunday Times World 9/04/2006
44. ZW News.com report 1/01/2006, 26/06/2006
45. AllAfrica.com report 15/05/2006, 18-19/06/2006
46. ReligioScope report 24/03/2006
47. Christian Aid Report 18/05/2006
48. Council for World Mission report 2/06/2006
49. Zimbabwe Trades Union report 7/06/2006
50. Report by Zimbabwe Torture Victims/Survivors Project 26/06/2006
51. Times on Line reports 11/06/2006, 26/06/2006, 27/06/2006
52. Geneva Statement of Mr Chinamasa 19-22/06/2006
53. Africa Reports 23/06/2006 (2)