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Last Updated: Friday, 14 October 2005, 13:13 GMT 14:13 UK
Decision 'blasts hole' in asylum policy
Dominic Casciani
BBC News community affairs

Asylum seekers celebrating outside tribunal
Returned Zimbabweans could be marked out for possible abuse

Asylum seekers are not used to things going their way - but when they do, they tend to do so with enormous effect.

A ruling on Zimbabwe by the Asylum and Immigration Tribunal has effectively blown a large hole in Britain's asylum policy, raising difficult questions about whether the government has a duty to ensure the continued safety of people it has worked hard to deport.

In short, the tribunal said that no matter how fraudulent a Zimbabwean's asylum seekers' claim to be, they cannot be returned because the very act of seeking refuge in Britain marks them out for possible abuse from the authorities on return.

There was an arguable case, he said, that conditions were such that to send someone home would be a breach of their human rights

In the worst possible scenario for policy makers, this could mean that literally anybody could arrive from Zimbabwe, falsely claim asylum, fail, and then sit happily knowing they will not be returned while President Robert Mugabe is in power.

In practice, it means that the thousands of asylum seekers in the UK who say they have fled the Mugabe regime will almost certainly not be put on flights back to Harare for the immediate future - and a protracted legal battle over any further attempts to remove them.

Complex case

This major defeat for the Home Office centres on an asylum seeker known as "AA".

He only claimed asylum in 2005, three years after he illegally entered the UK. Officials put him on a "fast-track" used for cases where there is a clear case for swift removal. Having lost his appeal in July this year, he joined approximately 140 others waiting deportation to Harare, removals having restarted in late 2004, following an earlier suspension.

Protest outside the High Court
A campaign, including hunger strikes, led up to the ruling

But amid reports from Zimbabwe of former asylum seekers facing alleged interrogation and torture at the hands of the Central Intelligence Organisation, a hunger strike began in immigration removal centres.

The crisis reached the High Court in the summer when Mr Justice Collins, one of the UK's leading immigration judges, essentially ordered a reassessment of conditions in Zimbabwe before he was prepared to allow removals to continue.

There was an arguable case, he said, that conditions were such that to send someone home would be a breach of their human rights.

Country reports

A Home Office fact-finding team went to Zimbabwe and conducted interviews, many of them anonymously with both individuals and organisations concerned with human rights.

That team concluded that while there were reports of ill-treatment, there was no substantial evidence to back up claims that asylum seekers were being systematically targeted at Harare Airport.

But, in a highly critical ruling, the Immigration and Asylum Tribunal has ruled that this was simply not good enough.

The tribunal said that it was "rather alarming" that the Home Office showed "a lack of interest" in how those it was sending home were being received.

If those forcibly returned to the country were being interrogated on arrival, was there not a duty on the Immigration Service to ensure that those being deported were not liable to be singled out for ill-treatment?

Timbah Mghubeli
If any of us were to be returned, we would immediately come to the attention of the authorities
Timbah Mghubeli

The tribunal concluded that this duty of care existed because of the real risk that anyone forcibly deported from the UK to Zimbabwe would be regarded, in the words of campaigners, as "Blair's spies".

Timbah Mghubeli arrived in the UK in 2001 and had expected to be deported this summer. He had clashed with ruling party Zanu-PF over his work as an activist for the opposition Movement for Democratic Change.

He was one of more than 50 Zimbabweans who staged a hunger strike at Harmondsworth Removal Centre, used to hold failed asylum seekers near to Heathrow.

"I just hope that justice today has been done," he said, hugging friends who had also attended the hearing.

"There has been enormous suffering and I was one of those who ended up in hospital because of our hunger strike. I know of one man who was removed after living in Manchester and was tortured by the CIO.

"He has now managed to flee to Botswana and is safe there. But if any of us were to be returned, we would immediately come to the attention of the authorities."

What happens now?

The Home Office can challenge the ruling on limited grounds - but the decision raises wider questions about the nature of returns.

While someone may be found to have no valid case to be in the UK, this Zimbabwe ruling says that returns need to do more to take into account the local conditions if a return is to be fair.

And although the ruling only applies to Zimbabwe, it will inevitably embolden failed asylum seekers from other nations to challenge returns on similar grounds. Their success or failure will naturally be down to the courts.

But perhaps more importantly, it will almost certainly encourage those within government and politics who believe that the 1951 Refugee Convention, the principles that underpin asylum law, is unworkable in a modern world.

Those voices, in public in any case, are few in number, largely because nobody has squared the circle of what should replace the convention, were it to go.

But if those voices were to win the argument for reform or some form of withdrawal from the convention, then the very asylum seekers who are today celebrating this victory, would have far less to be happy about in the future.

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