AFRICANS abroad sometimes make legal headlines – and even new law – while they are away from home. Carmel Rickard writes about a Zimbabwean in the UK whose landmark cases shows that judges may have to remind officials that the law is about nothing if not the truth.

THE man behind this extraordinary story is a 30-year-old Zimbabwean, known only as “JM”. Born HIV-positive, he struggled with health issues until, in 2002, he became really sick and his aunt advised him to go the UK and seek treatment there.

When he arrived, he said he was there for a holiday – clearly not true, said the court later, since he had gone for the clear purpose of finding treatment.

In 2006 he applied for asylum and was refused. By the end of that year, he had exhausted all his associated appeals. But he was still in the UK five years later, during May 2011, when he was arrested for drug-related offences. He made it clear that he did not want to return to Zimbabwe, saying if he returned he would die within 15 months as he would not have access to treatment.

At the end of his sentence on the drugs charges he was detained by the immigration authorities, and the Secretary of State had a deportation order served on him. Again, there was a series of appeals. By March 2014 this process had been exhausted and he was due to be sent home.

But the UK authorities had a problem – JM had no valid travel documents. The authorities knew he would have to apply at the Zimbabwean Embassy for extraordinary travel documents. And they also knew that, since 2002, it has been the policy of the government of Zimbabwe that no-one would be granted extraordinary travel documents “if they do not wish to return”.

The UK authorities try to get around this by requiring people in the position of JM to “give your consent to return to Zimbabwe” if requested to do so by embassy officials. JM refused to make that undertaking before he was taken to the interview, and during his discussion with embassy officials he made it clear that he did not want to return but that “if he was forced to, he would”.

Needless to say, the embassy officials refused to give him the travel documents.

He was later charged by the UK authorities for “failing to consent to return”, and he was given a sentence of nine months. The whole process began again after he served his time, and the official board said it would prosecute him “as many times as it takes before he complies”.

The UK immigration officials arranged another round of interviews for him at the Zimbwean Embassy. Presumably they would have ended in the same stalemate, but just days before the interviews, JM’s lawyers went to court, asking that the interview be put on hold pending the outcome of the new case they brought on the question of “consenting” to return.

This led to a flurry of activity including the release of JM on bail.

The case, when finally argued, involved a number of important technical issues relating to how immigration law is managed in the UK. JM’s lawyers argued that he had had a “reasonable excuse” for his behaviour at the embassy as the law cannot require him to lie. Moreover, “the fact that return means likely death is a reasonable excuse not to agree to return”.

In the end Judge Robert Jay agreed that the UK immigration officials “may not lawfully require (JM) to tell Zimbabwean officials that he agrees to return voluntarily.”

The judge said the case raised, for the first time, an important point of principle about the correct construction and application of a key element of immigration law, and how it applies to Zimbabwean nationals “who refuse to consent to removal to their homeland”.

In his judgment, written some months before former Zimbabwe president Robert Mugabe was replaced as head of state in November 2017, he added: “It has been the settled, some would say intransigent, position of the Zimbabwean authorities since 2002 that they will only accept voluntary returnees. Whether that is helpful, or reasonable, or consistent with Zimbabwe’s obligations under international law to accept their own citizens, is nothing to the point; and I make no ruling one way or the other.”

JM could not be found “deliberately obstructive”, said the judge. “He falls into the category of voluntary refusenik.”

“The question arises whether there was any realistic prospect, during the whole of the period under consideration, of the Zimbabwean authorities changing their policy on this issue. During the hearing there was some speculation about a range of possibilities, including the demise of the Zimbabwean President. That will happen one day, but it goes without saying that the temporal framework is uncertain. It almost goes without saying that when he dies no one … really has any idea whether Zimbabwe’s policy will change, and when.”

The UK authorities had told the court of another 18 cases in which they were waiting “a political decision” from Zimbabwe, which prompted the judge to comment that there was no realistic prospect of a change of policy by Zimbabwe and that the UK officials “cannot cling to threads of speculation and hope”. As to the section requiring an unlawful immigrant to cooperate in steps to leave the country, and the threat by the authorities to use this requirement “as many times as it takes” – this was “so Kafkaesque as to be inimical to the rule of law,” he said.

The court found that JM had been unlawfully detained by the authorities and that he should be awarded “substantial rather than nominal damages”. He was also entitled to a declaration by the court that he could not be lawfully required to “tell Zimbabwean officials that he agrees to return voluntarily.”

Jay added one caveat: “Nothing in my judgment should be interpreted as condoning (JM’s) continued unlawful presence in the UK, at public expense”.

That judgment, delivered in July 2016, was appealed by the Secretary of State and the appeal judges recently gave their decision:

The UK authorities “cannot require JM to tell Zimbabwean officials that he is willing to return to Zimbabwe when he is not,” the appeal judges ruled, because that would require him to do something inconsistent with another provision of the same law, namely that he had to attend the interview with the Zimbabwe officials and answer questions “accurately and completely”. If he were forced to give the answer that the UK authorities wanted him to make, he would be answering questions “inaccurately or incompletely”. Inevitably, by requiring JM to give his consent or agreement, the authorities were actually requiring JM to lie, something that the authorities “could not lawfully do”.

The appeal judges therefore concluded that the appeal had to be dismissed: JM could not be required to tell Zimbabwean officials that he agrees to return voluntarily. That also meant that he had thus been unlawfully detained (outside the period when he was in prison over the drugs charge) and he was due “an award of substantial damages”.

You can read the initial decision and the appeal decision on BaiLII.

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