The British government will have to rethink its policy on deporting failed asylum seekers to Zimbabwe, after the Asylum and Immigration Tribunal ruled that an unnamed failed asylum seeker would risk being harmed by Mugabe's regime if he returned. The High Court is also considering a judicial review on this issue, but had postponed that case until the outcome of this tribunal hearing was known. It will be interesting to see what the Court decides in the light of this result.
The tribunal ruled on the grounds that there was evidence that those who had fled the regime in Zimbabwe, and in particular those who had sought protection from Mugabe and his secret police in the form of asylum in a foreign state, were viewed as traitors by the Zimbabwean regime, and thus risked persecution accordingly. This raises an interesting issue in terms of international refugee law.
The definition of "refugee" in the 1951 Refugee Convention reads in relevant part that:
the term 'refugee' shall apply to any person who: . . . (2) . . . owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;
In 1999, the House of Lords handed down a major decision in terms of asylum and international law, ex parte Shah. There, it was noted that:
In order to qualify as a refugee the asylum seeker ... must therefore prove: (1) That she has a well founded fear of persecution. (2) That the persecution would be for reasons of race, religion, nationality, membership of a particular social group, or political opinion. (3) That she is outside the country of her nationality. (4) That she is unable, or owing to fear, unwilling to avail herself of the protection of that country.
The interesting thing in this case, of course, is that the asylum seeker in question had already, in the eyes of the British government, failed to fulfil these criteria (presumably at the first or second hurdle). The Asylum and Immigration Tribunal appears to have ruled, however, that the very fact of having failed in an asylum application itself meant that such asylum seekers had a well-founded fear of persecution if returned to Zimbabwe. Given that the most likely grounds for having failed in the asylum process in the first place is the absence of such a well-founded fear, the British government would seem to be caught in something of a catch-22 situation.
So perhaps any failed asylum seeker in the UK from Zimbabwe need only reapply, on the grounds that having applied in the first place was itself sufficient to create a well founded fear of persecution. Certainly, the non-refoulement provisions would make it very difficult for the UK to deport such "failed" asylum seekers, if the findings of the Tribunal are accepted.
Of course, any would-be refugee would still have to fulfil the second of the House of Lords' criteria: that the persecution be on the grounds of race, religion, nationality, membership of a particular social group, or political opinion. The first three do not seem applicable to the case of Zimbabwe; the latter two, on the other hand, quite possible are. However, if the government could argue that persecution on the grounds of having requested asylum does not fall under "persecution on the grounds of political opinion" (quite plausible, depending on context), then everything would turn on the meaning of the phrase "membership of a particular social group".
This phrase was central to the House of Lords decision in ex parte Shah. They made it clear that two questions would have to be answered: firstly, does x constitute a particular social group?; and secondly, is the persecution for reasons of membership in this group? The judgment examines these issues in considerable detail (including citing a number of foreign judgments, most prominently those from the US). It seems clear that, in the present case, if "failed asylum seekers from Zimbabwe" was held to be a "particular social group", then the causation issue would not be problematic. However, can such be held to be a "particular social group"?
On this, we can only speculate. In his judgment in the case, Lord Steyn noted that the persecution alone could not be constitutive of the social group (i.e. the group could not be identifiable solely by the fact that they are persecuted against): He then goes on to quote approvingly A. v. Minister for Immigration and Ethnic Affairs and Another (1997):
If it were otherwise, Art. 1(A)(2) [of the Refugee Convention] would be rendered illogical and nonsensical. It would mean that persons who had a well founded fear of persecution were members of a particular social group because they feared persecution. The only persecution that is relevant is persecution for reasons of membership of a group which means that the group must exist independently of, and not be defined by, the persecution . . .
Lord Steyn stressed the need for a contextual evaluation of this issue; he also, however, in the context of that case, held that a) women in Pakistan were a particular social group and b) the appellants also fell under a narrower social group, that of women accused of adultery in Pakistan. The second of these groups does seem to run the risk of being a group defined by the fact of persecution; Lord Steyn however held that this was not so, due to "the coincidence of three factors: the gender of the appellants, the suspicion of adultery, and their unprotected position in Pakistan".
In the present, speculative case of a failed asylum seeker being deported to Zimbabwe, the gender issue is obviously a non-starter. However, the other two remain relevant. Such people are allegedly viewed as traitors and spies by Mugabe's regime; and they seem unlikely to be able to rely on protection from the Zimbabwean courts to defend themselves from these charges. Of course, such decisions can always go either way; two similar courts could make two completely opposed findings on the issue. However, i suspect that there is enough in ex parte Shah to enable UK judges to rule that such failed asylum seekers were a "particular social group", if they were so inclined. Given the sabre rattling that has been coming from the judiciary in recent weeks, announcing that they will not be "browbeaten" by the government on the issue of deportations, who is to say that they wouldn't be.
Such a decision would, on the other hand, make a complete nonsense of the term "failed asylum seeker from Zimbabwe"...