The New African Times

THE British Ministerial Statement on forced removals of failed asylum seekers to Zimbabwe released on October 29 was odd, coming as it did when Zimbabwe is sliding into violence again.

Immigration Minister Phil Woolas said the UK government intended “to make changes over time to our returns policy to Zimbabwe” which “reflects developments in Zimbabwe following the formation of the inclusive government led by Prime Minister Tsvangirai.”

The contents of the statement have been well publicised and I will not go into details. The public should not fall into panic mode because the minister DOES NOT say that the suspension on removals has been lifted.

The important point to note is that there has been no change to the suspension of removals to Zimbabwe but the Home Office is moving “over time” to changing it and “will be starting work over the autumn on a process aimed at normalising our returns policy to Zimbabwe, moving towards resuming enforced returns progressively as and when the political situation develops.”

The position remains, therefore, that we can assume the suspension remains in place until there is an announcement to the contrary. The UK government will be monitoring the political situation in Zimbabwe before they make the decision to start sending people back to Zimbabwe.

What does this mean to the many failed asylum seekers and illegal immigrants from Zimbabwe?

The situation remains the same, but it can change at any time. Zimbabweans should, therefore, start planning that they may have to return to their country of origin sometime in the near future.

The year 2009 saw thousands of Zimbabwean over-stayers claiming asylum following the ruling in the case of RN. Whilst a large number were granted asylum, hundreds or even thousands were refused. These people are now reporting to the immigration authorities and living in state-provided accommodation.

As a result, many of these people are in a vulnerable position should removals recommence. The question on their minds is what should we do?

The purpose of this post is not to act as a scare monger but to give a few practical tips in the event of detention.

If you are liable to detention and deportation, you must at all times carry the following information on your person:

Full name

Date of birth

Home Office Reference number

Home Office Port Reference number

Some details for any family members

Phone number of your solicitor including their emergency number

Your MP, including their emergency number

Your doctor (if there are any persistent medical problems with any member of your family or yourself).

Numbers of any friends/support group/campaign group.

A mobile phone that doesn’t take photos or give access to the internet (phones that take photos or give access to the internet will be confiscated if you are detained).

You must have a file containing all your legal documents and kept next to your front door if in stable accommodation. If a ’snatch squad’ invades your home, you should insist that they let you take the file. A copy of this file should be left with someone who is not liable to detention and is easy to contact. If detained, you can phone this person and ask them to make copies and post them to yourself and others.

If homeless, you must carry this file at all times.

If you are reporting, you must inform someone you are going to sign and give them a deadline for a return call saying you have not been detained. Best practice: someone should accompany you. This person should have all your details and if they don’t hear from you, they should contact reporting centre/police station to find out if you have been detained.

If detained, at the first opportunity ring your solicitor if you have one, your friend or supporters.

Register with the Zimbabwe Association and Support groups and ensure that you carry their details.

If you do not have a Solicitor then register with one and ensure that they have all your details.

Voluntary Return

There is always the option of returning to Zimbabwe voluntarily. The Ministerial Statement states the following:

“On 1 February we announced enhancements to the Assisted Voluntary Return (AVR) package for Zimbabweans. AVR packages are available for individuals of all nationalities who are within the asylum system. The standard package provides support to help them reintegrate into their home country, including £4,000 for vocational training, assistance in setting up a business and a flight home.

Since February the package for Zimbabweans has been supplemented with an extra £2,000 of reintegration assistance. This includes an additional £500 cash on departure, an extra £1,000 ‘in kind’ assistance for business set-up, a £500 basic subsistence package and cholera prevention kits.

We are today changing the way we deliver our supplementary package for Zimbabweans such that the total value remains the same but, instead of providing the assistance ‘in kind’, cash payments will now be phased in over a six month period through the IOM office in Harare. Making cash available to those who go home will support economic reform in Zimbabwe - enabling people to return voluntarily and use their skills to support change and help rebuild Zimbabwe with capital behind them. The scheme will also be extended until 31 December and will be reviewed at that point.”

Not everyone living unlawfully in the UK is at risk of persecution in Zimbabwe. There are some who are merely economic migrants. The option of returning voluntarily is good in the sense that you have control over the way you leave the UK.

There is more dignity in making your own plans rather than being unceremoniously kicked out of the UK just with nothing but the clothes you are wearing after living here for five or more years. It is worth considering returning on a voluntary basis rather than to continue to live in limbo in the hope that the UK government will have an amnesty.

It is, however, an individual choice depending on one’s circumstances back in Zimbabwe.

Regularising your immigration status

The Ministerial Statement serves as a stark reminder that the United Kingdom cannot continue to host Zimbabweans indefinitely and therefore there will come a time when people that are living here unlawfully will have to return.

It is important to regularise one’s immigration status before they are faced with removal or detention. I have noticed that some of my countrymen and women have a tendency to jump on the bandwagon. There have been fads with regard to regularising one’s immigration status. It started with student visas, moved on to ancestry visas then asylum.

I asked someone why they had claimed asylum when their case clearly had no merit. The answer I was given was: “Well everyone else was!”

The point that I am making is that individuals should seek advice from legal advisors with regard to their own particular circumstances and see what the best way to regularise their immigration status is.

There are many Zimbabweans who are currently in relationships where one partner has Indefinite Leave to Remain or has naturalised as a British National. It is still possible to leave the country voluntarily and apply for entry clearance from Zimbabwe.With the correct legal advice and evidence to support one’s case, this is a viable option to regularising one’s immigration status in this country. That is one example, but there are many options available depending on your circumstances.

It is, therefore, advisable to seek advice relating to your own personal circumstances before it’s too late.

THE UK Border Agency (UKBA) has announced changes to the way it registers further submissions and initial in-country asylum applications.

Beginning on Wednesday, October 14, the UKBA is requiring that any further submissions in an asylum case must be made in person by appointment.

Further to that, all initial claims for asylum made inside the UK (rather than on arrival at port) must be made at Croydon. It is no longer possible to claim asylum in Scotland, Wales or Northern Ireland, it would seem.

Where an individual whose appeal rights against a decision refusing them asylum have been exhausted asks to have their claim re-examined, owing to a change in their circumstances, this must be done in person rather than by post.

The following arrangements will be in place:

• Those who claimed asylum before March 5, 2007, and whose case is being managed by the Case Resolution Directorate, will be required to make any further submissions by appointment and in person at the Liverpool Further Submissions Unit (formerly the Asylum Screening Unit).

• Those who claimed asylum on or after March 5, 2007, are required to make any further submissions in person at a specified reporting centre in their region.

In addition to these changes, it will no longer be possible for initial asylum applications to be made in Liverpool, and anyone wishing to make an initial asylum application in country will be required to do so in person at the asylum screening unit in Croydon.

It means that if there is a change in circumstances in the country of origin and the asylum claimant wants to make submissions on it, he or she has to travel to Liverpool. If the asylum claimant receives new documents from abroad, it means a trip to Liverpool to hand it in.

It appears that the new policy does not obviously apply to Article 8 claims based on UK relationships or similar, as it specifically refers to asylum cases.

The new rules may result in fewer fresh claims being made as many people will not be able to travel to Liverpool. As a result, there is likely going to be fewer claims for Section 4 support.

This new policy is bizarre, and it appears to be more of an attempt to deter people from making fresh asylum claims in order to cut the budget for Section 4 support.

The new system may also result in more people being detained and removed. The congestion at the Asylum Screening Unit in Croydon will become worse as people from all over the UK can now only claim asylum at one location.

The new system may have some positive effects especially for applicants from countries where there are currently no removals. It may result in the claims being dealt with more quickly.

The other advantage may be that it will ensure that the claim has in fact been received by the UKBA. We have had many instances where we have submitted fresh claims on behalf on clients and the UKBA have stated that they have not received any fresh submissions.

This new system will not leave any doubt in the applicant’s mind that the application has been received. The new system will also assist asylum seekers who have stayed in the UK for many years and who come from countries such as Zimbabwe and Somalia where it is almost impossible to enforce removals.

Last week, the Daily Telegraph claimed that there is a new policy that asylum seekers may be granted settlement after a wait of four to six (or possibly eight) years following a quiet change to immigration policies.

The policy is allegedly set out in a memo the paper claims to have seen from Matthew Coates, a very senior figure at UKBA, which was signed off by Immigration Minister Phil Woolas. It concerns Legacy Cases.

The Telegraph states that Coates rejects the idea of a sort of formal amnesty but instead recommends changing the current guidance to make it easier for immigration officials to allow up to 40,000 to stay in the UK.

He suggests they could be allowed to stay here after having been in the UK for as little as four years, in the most difficult cases, or around six to eight years - rather than 10 to 12 years as the rules stated.

He adds: “We do not believe the rule itself needs amendment. We do, however, need to make some amendments to the underpinning operational guidance to give caseworkers the necessary latitude to deal with this cohort.”

There has been no formal change to Immigration Rule 395C, which lists compassionate circumstances to be considered in removal cases. However, there was a recent change to the Enforcement Guidance and Instructions on rule 395C (chapter 53.1.2), which now includes the following examples of cases that should be considered sympathetically:

• An initial application or an ‘in-time’ application for further leave (an application made before the individuals leave to enter/remain had expired) was submitted some time ago. A significant delay in such cases considered as being between 3-5 years.

• ‘Family’ cases where delay by UKBA has contributed to a significant period of residence (for the purposes of this guidance, ‘family’ cases means parent as defined in the Immigration Rules and children who are emotionally and financially dependent on the parent, and under the age of 18 at the date of the decision). Following an individual assessment of the prospect of enforcing removal, and where other relevant factors apply, a 3 year period of residence may be considered significant, but a more usual example would be 4-6 years. Family units may be also being exceptionally considered where the dependent child has experienced a delay of 4-6 years whilst under the age of 18.

• Any other case where delay by UKBA has contributed to a significant period of residence, Following an individual assessment of the prospect of enforcing removal, and where other relevant factors apply, 4-6 years may be considered significant, but a more usual example would be a period of residence of 6-8 years.

The government has responded to the Telegraph’s claims. Phil Woolas, the Border and Immigration Minister, said: “There is no amnesty. Our guidelines were updated to provide case workers with a simple framework to judge cases, and to avoid long drawn out court battles.

“No lawbreaker will be allowed to stay, and each case is still decided on its individual merits. The UK Border Agency continues to ramp up performance and is concluding several thousand cases a month.“

Although there is no official amnesty, we have seen many liberal and compassionate decisions being made by the UKBA. In recent weeks, I have seen many positive decisions being made by for applicants who have been waiting for many years for decisions in their fresh asylum and human rights claims. It appears that the UKBA are implementing the new guidance in a liberal manner.It is advisable for failed asylum seekers from countries such as Somalia and Zimbabwe to take advantage of the new guidance and lodge fresh claims before the UKBA changes their policy again.

THE British government has introduced a new law which will overhaul the current framework for indefinite leave to remain (ILR) and British Citizenship.One of the major changes will be to support the concept of “earned citizenship” — setting out eligibility requirements for UK Citizenship.

In order to currently obtain British Citizenship, a person has to go through three stages:

• Spending a qualifying period of time in the UK in a temporary immigration category, for example a spouse migrant, Tier 1 general, Tier 2 Student, refugee etc.
• Applying for Indefinite leave to remain in the United Kingdom.
• Applying for naturalisation to become a fully fledged British Citizen (often a year after having obtained indefinite leave to remain)

 Probationary Citizenship leave would mean that rather than applying for indefinite leave to remain at the second stage, a person would need to apply for probationary citizenship leave, essentially another temporary leave to remain.Whilst indefinite leave to remain would remain, it would be an alternative to citizenship and take longer to obtain.

The exact period of time required as a probationary citizen will depend upon how active you are. For example volunteering in the community will speed up the process, whereas criminal conduct could slow down or even prevent a person from obtaining British Citizenship. This all ties in with the Government’s concept of migrants earning their entitlement to citizenship, and contributing positively in the community.

Another requirement is to be in continuous employment, throughout the probationary citizenship leave, granted for the purposes of taking employment to qualify for citizenship. Someone who has been made redundant from their jobs will find it difficult to meet this requirement. A person who is on benefits may also find it difficult to meet this requirement.

The Act will affect those already on their way to citizenship although some transitional provisions have been introduced for those with indefinite leave to remain. The UK Border Agency has confirmed that the new registration provisions will be commenced by early 2010. The earned citizenship provisions which will amend the requirements for naturalisation will be commenced in the summer of 2011.

The Points System

Initially 20 points will be required to move from “temporary residence” to “probationary citizenship” but the UK Border Agency (UKBA) has indicated that this points threshold may be increased at a future date.

The government believes that a points system will provide greater flexibility to take a decision to raise or lower the threshold for settlement depending upon the needs of the country and economy at any given time.

For those qualifying via the employment route, these points would initially be scored by meeting the Immigration Rules (10 points) and by passing the Life in the UK test or ESOL test (10 points).  Meeting the Immigration Rules would mean in the case of a migrant worker being self-sufficient and still in work.

If it is decided to raise the points threshold for those using the employment route to move into probationary citizenship, ways of scoring the additional points required might be for instance on the basis of earnings level (£24,000 - £34,999 = 5 points, £35,000 - £49,000 = 10 points etc.) or academic qualifications obtained in the UK (Bachelor degree = 5 points, Masters = 10 points etc.) or other criteria such as working in a location in need of increased migration e.g. Scotland (5 points).  The UKBA is currently seeking feedback on these proposals.

For those here on the basis of a family relationship, e.g. spouse or civil partner of settled person, the relationship would still have to be subsisting, in which case 20 points would be scored.  Under the proposals, it appears that unmarried partners of settled persons, who are not eligible to naturalise as British citizens under the current arrangements will be able to qualify via the family route but we await further clarification on this point. It will also be necessary for those qualifying via the family route to score 10 points by passing either the Life in the UK or the ESOL test.

It will be mandatory to pass either the Life in the UK or the ESOL test to achieve probationary citizenship. Those who fail the test will be required to take it again. Those who are convicted of a crime attracting a custodial sentence will normally be refused probationary citizenship, permanent residence or citizenship and those who commit minor crimes will normally be unable to obtain citizenship until their convictions are spent (this is generally five years for offences which attract a fine, e.g. motoring offences).

Achieving Full Citizenship

It is proposed that it will be necessary to pass a further, more challenging Life in the UK test or ESOL test to achieve full British citizenship. The route to full citizenship will be accelerated for “Active Citizens” who may achieve full citizenship after only one year in the probationary citizenship stage by undertaking activities such as: formal volunteering; giving unpaid help to groups or clubs to benefit others or the environment; being a school governor or participating in trade union or party political activities etc.

It is proposed that local authorities would monitor these active citizenship activities and confirm to the UKBA that they had been performed. The types of activities which will count towards active citizenship have not yet been finalised.

Transitional Arrangements

Those who have already made an application for citizenship will have their application decided under the current arrangements. Additionally, those who currently have indefinite leave to remain (ILR) in the UK or who have been granted ILR by the date of commencement (a date in July 2011 yet to be announced) or who have applied for ILR before the date of commencement and are subsequently granted ILR will have their applications for citizenship decided under the current arrangements provided that they apply for citizenship within two years of commencement.

It is therefore advisable for individuals who qualify for British Citizenship to apply now before the rules change. It is advisable to seek legal advice before proceeding with the application for British Citizenship.

Rumbidzai Bvunzawabaya

Rumbidzai Bvunzawabaya is a solicitor at RBM Solicitors, based in Coventry. She was admitted on the Roll of Solicitors for England and Wales in 2003 and admitted in Zimbabwe in 1998 as a Legal Practitioner.Rumbidzai Bvunzawabaya is a Solicitor at RBM Solicitors based in Coventry. She can be contacted at info@rbmsolicitors.co.uk or telephone: 02476520999