Implications of MDC victory on Zimbabwe refugees in UK

Implications of MDC victory on Zimbabwe refugees in UK

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By Taffy Nyawanza

THIS is a revised article which has become even more relevant with the fast-developing events in Zimbabwe.

If the MDC does go on and actually emerge as winners in the Zimbabwean elections, and Robert Mugabe’s regime is finally pushed out of office, that would amount to what is called ‘a significant change of circumstances’ which may trigger a review of refugee status.

‘Significant change’ is a technical concept in UK refugee law which became prominent with the key changes that occurred in 2005.
Readers will remember that with effect from the August 30, 2005, refugee leave (whether granted at initial decision or following an allowed appeal), is now granted for five years. Before that of course, refugees obtained Indefinite Leave to Remain (ILR) immediately.

Similarly, ‘humanitarian protection’ is now granted for five years. Humanitarian protection is the status granted to those who are not refugees; but are recognised to be at risk of torture or inhuman or degrading treatment in their home country.

When these changes were introduced, the justification was that the new policy would ensure that permanent settlement is granted only to those refugees who, after five years, are still eligible to remain in the UK. It was argued that this was is in line with the Refugee Convention which provides that the protection of the Convention will cease to apply in specified circumstances where there is no longer a need for it.

These changes came about as a result of the new five-year plan on asylum and immigration entitled ‘Controlling our borders: Making migration work for Britain’ which the UK government announced in February 2005. It was part of the UK government’s so-called ‘New Asylum Model’ (NAM) which provides that most categories of immigrants, including refugees, should be subject to a minimum five year residency requirement before becoming eligible for permanent settlement.

At the end of the five years, a person with refugee status or HP may apply for ILR. Both refugee and HP status are dealt with, or reviewed in the same way (so please read refugee status to include HP for review purposes).

At application for ILR, there should ordinarily not be a full review of the individual’s continued entitlement to refugee status. The Home Office say that there are circumstances however, in which a person’s entitlement to refugee status may be reviewed. These may be:

(i) where the actions of the individual indicate that he is no longer entitled to refugee status, such as returning to visit, or live in the country he came from;
(ii) where a significant and non-temporary change in the country of his origin causes ministers to order a review of the grants of refugee leave to persons from that country; and

(iii) where a person fails to apply for ILR before his refugee leave expired, there will be a review of whether the individual still requires protection.

(iv) Where it is discovered that the individual deceived the authorities in order to be recognised as a refugee;

(v) Where it is discovered that the individual committed certain serious crimes before applying for asylum; or

(vi) Where there is reason to believe that the individual is a danger to the security of the United Kingdom or has been convicted of a particularly serious crime.

Apart from this, and perhaps more importantly in view of a likely MDC victory, the Home Office position is that a review need not wait until the five years are up; a review of refugee status may be triggered where, among other reasons, there has been a significant and non-temporary change in the conditions in a particular country.

It has to be said, however, that the decision to review refugee leave is not one that will be taken lightly. There are various in-built safeguards and stages before that can happen.

Firstly, it would have to be shown that a country or part has improved sufficiently to justify the review of the status of those refugees potentially affected by that change. The change must be non-temporary. An MDC victory alone and regime change without more might not suffice. There has to be evidence, for instance, of sustained stability.

Secondly, the decision is an executive decision (taken by ministers) but will still need to be communicated to Parliament, ostensibly to be scrutinised in open debate.

Thirdly, the decision will be taken only after consultation with the United Nations’ specialist organ for refugees, the UNHCR.

Fourthly, even with all of the above, the Home Office will still be obliged to conduct reviews of refugee status within the scope of the ministerial statement on a case by case basis. There is no provision in the law for a blanket review of refugee status.

In addition, when the decision to actively review a case is made, the individual will be written to and given the reasons for the decision. He will be entitled to explain the reasons why he believes that he should be allowed to stay in the United Kingdom. A right of appeal should also be available to allow an independent assessment by the judiciary.

If all these conditions were satisfied, what then would be the options open to a person who really did not want to return to Zimbabwe after the withdrawal of their refugee status?

There is provision for an application to be made for leave to remain in the UK in other immigration capacities, depending on individual factors. The Home Office specifically accept that where, following review, a person no longer requires, or is no longer entitled to, protection in the UK, the refugee status will be withdrawn and leave curtailed under the Immigration Rules, unless he qualifies for leave on another basis, in which case leave may be varied. Note the use of ‘may’ suggesting discretion perhaps.

So for those who may have acquired an education in the UK, it would be possible to change to the student category for instance. Married people might rely on their family life in the UK. Long residence and integration in the UK might provide a viable argument to stay in the UK on the basis that to return to the country of origin would be unreasonable. There are also long residence rules and policies such as the 7 year concession, the 10 year rule, and the 14 year rule which have been discussed in this column previously and which could be handy.

Ultimately, it is important to remember that there are some real options available in the event of a withdrawal of refugee status.

Taffy Nyawanza works for Bake & Co Solicitors of Birmingham. He can be contacted on info@bakesolicitors.co.uk, ph. 0121 616 5025 or visit Bake & Co Solicitors’ website at www.bakesolicitors.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 as a result of the use of this information.
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