RN (Zimbabwe)
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The decision in RN (Zimbabwe) is the latest test case decision of the AIT on Zimbabwe. It is a country guidance decision. This means that, unless there is new evidence which shows that the AIT’s assessment of the situation in Zimbabwe must be reconsidered, the AIT and the Home Office must apply this decision when deciding any asylum claims or appeals of Zimbabweans.

In RN (Zimbabwe), the AIT decided that

It is clear that someone who cannot demonstrate positive support for Zanu-PF is at risk of persecution. This risk arises throughout Zimbabwe, in both urban and rural areas.

While the violence is now not at the levels it reached over the summer 2008, the regime remains ready to repeat this if it thinks it necessary.

Zanu-PF militias have also established no go areas and road blocks to ensure that abuses go unreported and displaced people cannot return home.

Someone who has claimed asylum in the UK will find it very difficult to demonstrate support for or loyalty to Robert Mugabe and Zanu-PF.

Someone who tries to relocate to a new area where he or she is unknown, rather than returning to his or her home area, will not be able to reduce any risk he or she faces.

What does this mean for Zimbabwean asylum-seekers?
The AIT decision means that any asylum-seeker from Zimbabwe should be granted refugee status if there is a real risk that he or she would be unable to demonstrate positive support for Zanu-PF if he or she was to be returned to that country. However, if circumstances in Zimbabwe improve between now and when any decision is made on someone’s asylum claim or appeal, this may cease to be the case.

The withdrawal of the Seven Year Child Concession
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On 9th December 2008, the Government announced the withdrawal of the seven year child concession (DP5/96) from that date. Before that date DP5/96 had for several years allowed some families with dependent children (i.e. children under 18 years who are not leading an independent life) to be granted indefinite leave to remain if the child or children had been living in the UK for at least 7 years.

Cases where DP5/96 will continue to apply
Chapter 53 of the Enforcement Instructions and Guidance explains when DP5/96 will continue to apply after 9 December 2008. This will be the case if before 9 December:

DP5/96 has been considered in an appeal which remains outstanding
an appeal relying on DP5/96 has been allowed
a court or tribunal has directed the UK Border Agency to apply (i.e. consider) DP5/96
the UK Border Agency has acknowledged receipt of an application relying on DP5/96
the UK Border Agency has begun to consider DP5/96

The effect of the withdrawal of DP5/96
The Minister’s statement on 9 December 2008 makes clear that the withdrawal of DP5/96 is because the Government thinks it is no longer needed. The reference to the Human Rights Act 1998 relates to the European Convention on Human Rights, which that Act adopts into UK domestic law. In particular, it relates to Article 8 of the Convention – the right to private and family life.

In many cases where DP5/96 would have applied, it will be possible to rely on Article 8.However, two important differences between the DP5/96 and Article 8 must be noted:

Article 8 is not restricted to children who have been in the UK for 7 years or more.
There may be cases where a child has been in the UK for less than 7 years in which removal will not be proportionate.

Where it is decided that removal shall not proceed because of Article 8, this usually leads to a grant of 3 years Discretionary Leave.

Huang & Anor v SSHD [2007] UKHL 11.
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This judgment established that, when considering an appeal on Article 8 grounds, the Asylum and Immigration Tribunal (AIT) must consider for itself whether it is proportionate to require the individual to leave the UK or refuse him or her entry to the UK. In deciding that question, the AIT must not reduce the question to merely whether the case is exceptional as compared to other cases or the Immigration Rules.

Beoku-Betts v SSHD [2008] UKHL 39
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In this case the House of Lords answered the question as to whether the Asylum and Immigration Tribunal (AIT) should consider the family life of all the relevant family members, when considering an appeal that raised Article 8, or whether the AIT should only consider the family life of the individual who had brought the appeal. The House of Lords decided that the family life of all the relevant family members should be considered.
We have used this case for clients facing removal from the UK arguing that they should not be removed from the UK because this would separate them from their family, the AIT should consider the circumstances of all the family members when deciding whether the removal would be contrary to Article 8.
ILPA

Chikwamba v SSHD [2008] UKHL 40
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In this case the House of Lords considered whether someone with family settled in the UK should usually be expected to return to his or her home country to make an entry clearance application rather than being allowed to remain in the UK on the basis of Article 8. The House of Lords decided that, if Article 8 would otherwise entitled someone to remain in the UK, he or she should not ordinarily be required to go home in order to make an application to return to the UK – especially if there are children involved.

EB (Kosovo) v SSHD [2008] UKHL 41
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In this case the House of Lords considered the circumstances in which delay on the part of the Home Office in deciding the case of someone in the UK may be relevant when considering Article 8. In this case the delay had been in deciding the individual’s asylum claim; and he had formed a relationship in the UK while waiting for the case to be decided. The House of Lords decided that delay could be relevant in three ways. Firstly, the longer someone was in the UK, the more likely it was that he or she would develop important social connections in the UK and, therefore, have a significant private or family life here. Secondly, while any close
relationship may be precarious (or uncertain) at the beginning (particularly, if there is no good reason for the individual or his or her partner to be confident that the individual will be granted permission to stay in the UK), after a time the relationship is likely to become stronger (or more permanent). Thirdly, if the delay on the part of the Home Office is because its system for dealing with claims is not working properly, consistently and fairly, this may reduce the significance to
be given to immigration control when assessing whether a decision to remove the individual is a proportionate interference with any private or family life.
We have relied on this case for clients who have been in the UK for many years, and have formed a close relationship here.

Metock &Ors v Ireland (Case C-127/08
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On 25 July 2008, the European Court of Justice (ECJ) gave judgment in the case of Metock & Ors v Ireland (Case C-127/08). This case concerns the right of a British citizen, working in Ireland, not to be separated from her husband (a national of Cameroon, and refused asylum seeker) whom she married in Ireland. (The case also concerns the rights of four other families in Ireland where one of the family members is an EEA national exercising Treaty rights in Ireland who wishes to be joined by, or not be separated from, his or her non-EEA national partner).
The ECJ judgment shows that the spouse of an EEA national exercising Treaty rights (i.e. the EEA national is in an EEA country other than his or her own country):

• may join or stay with that EEA national unless his or her exclusion is permitted under EU law
• cannot be excluded from that country under that country’s immigration laws if those laws are more restrictive than EU law

It does not matter when or where the marriage took place. It does not matter how the person entered the EEA or entered the particular country.