For decades Robert Mugabe’s Zimbabwe African National Unity Patriotic Front (Zanu PF) regime has ruled Zimbabwe with an iron fist. Political activities perceived to be in opposition to Zanu PF policy have been brutally repressed by the widely feared Central Intelligence Office (CIO), aided by a corrupt police force and military commanders with strong economic and political ties to the Mugabe regime. State sanctioned violence and repression reached a crescendo in the run up to the Presidential election in march 2008, with political demonstrations for the leading opposition party the Movement for Democratic Change (MDC) violently dispersed and MDC party leaders arrested and severely beaten in police custody. A power sharing government has presented the semblance of national unity and a democratic political settlement, but out with the state legislatures the population continues to remain at the mercy of the CIO, the military police, and Zanu PF youth militia groups, who are armed by the regime and tasked to harass and violently interrogate the population concerning their political allegiance. In terms of the jurisprudence of the Upper Tribunal (Immigration and Asylum Chamber), the Country Guidance case of RN (Returnees) Zimbabwe CG  UKAIT 00083 established the court’s assessment of the general risk of persecution. The ratio generally held that those who would be unable to demonstrate loyalty to the regime when confronted by Zanu PF youth militia groups, would be at real risk of violent persecution owing to their imputed political opinion, and as such should be granted international protection in the UK as a refugee in terms of the 1951 Refugee Convention, failing which subsidiary protection under the EU Council Directive 2004/83/EC.
In March 2011 the Upper Tribunal promulgated new Zimbabwe country guidance in the judgement of EM and Others (Returnees) Zimbabwe CG  UKUT 98 (IAC). This case reflected less heightened political tension and consequent violence throughout the country, and limited the risk areas for violent confrontation with youth militias to rural areas out with North and South Matebeland. Returns to urban areas in Harare and Bulawayo were generally deemed safe, with exception of those with Shona ethnicity who would face discrimination on return to Bulawayo. This judgement left the Zimbabwean diaspora in the UK with the real prospect of enforced return to Zimbabwe, despite a tense political settlement, continued human rights violations by state security forces, and a flat lining economy with food shortages.
The Court of Appeal in England quashed EM in June 2012 and remitted the case back to the Upper Tribunal for further consideration. The grounds for remittal were firstly that the Secretary of State had withheld information from the Tribunal concerning current country conditions which amounted to a procedural irregularity, and secondly that the Upper Tribunal had made a material error of law by attaching weight to country information from an anonymous source.
Practitioners are now faced with the all too familiar situation where the current country guidance risk assessment is based on country conditions from 2007 and 2008, and where logic dictates that the objective evidence on country conditions in 2012 will most likely paint an altogether different picture. Or will it? Zimbabwe’s constitution stipulates that the current government must call an election no later than April 2013. Key reports suggest that in the months running up to the election the Zanu PF regime will again begin to mobilise groups of youth militias across the country to intimidate the electorate into voting for Mugabe. This of course was precisely the febrile political atmosphere from which the determination in RN emanated.
However, the Secretary of State in her Operational Guidance Note for Zimbabwe goes to great pains to remind caseworkers that while country guidance has reverted to RN, the country information cited by the Tribunal in EM was still to be regarded as the authoritative statement of current country conditions (although presumably not the respondent’s evidence from the anonymous sources, or the information withheld from the Tribunal).
The reality on the ground and the Upper Tribunal’s assessment of risk on return will ultimately only be reconciled by the promulgation of fresh country guidance. Meantime it will be essential for Zimbabwean appellants to source and lead evidence on as much objective country information as possible, to allow the Tribunal to come to clear conclusions on risk on return for each particular factual matrix it is called to adjudicate upon.