Update - Zimbabwe

Well, this is the first blog of 2009. What the year will hold for us all, we do not yet know. I start the year optimistically and hope that my high spirits will continue throughout the year. Obviously, I have a number of resolutions, but we will see how long I last with those.

My attempt at blogging has had a slow start. I am conscious that I do not blog regularly. My main problem is that everything I would like to blog about is controversial. The current hot topic is the Middle East, but that is for another day.

I thought I would briefly update interested parties on how the courts are treating the Zimbabwe situation after the recent caselaw. My last entry referred to the case of RN. It has been adopted by the Asylum and Immigration Tribunal as a Country Guidance case. It now has the citation RN (Returnees) Zimbabwe CG [2008] UKAIT 00083.

The Home Office (I should say the UK Border Agency) quite correctly decided not to appeal the decision. This in itself is a good result and the Agency ought to be congratulated on taking such a common sense approach to the issue. One day after the decision, I had an Zimbabwean appeal which the IJ allowed on the basis of RN in that the Appellant could not demonstrate loyalty to the current regime. In this regard, the AIT are also taking a very sensible approach to Zimbabwean cases listed to be heard there. Again, they ought to be given credit for this.

UKBA is now conducting a review of all Zimbabwean cases waiting to be heard in the courts. My experience is that many Zimbabweans are now being recognised as refugees on the back of the case of RN and I have had some notable results. The approach being taken on Zimbabweans by both UKBA and the AIT is one which ought to have been taken quite some time ago. However, better late than never and credit ought to be given where credit is due. Let us all hope that this kind of thinking can be applied across the board.

To finish off, I noted in my last posting that an Immigration Judge (IJ) had refused one of my Zimbabwean appeals on the basis that Mugabe was no longer in control. On appeal, a Senior IJ (SIJ) found this approach to be "perverse". We are now waiting for the case to be re-listed.

Let us enter 2009 full of fighting spirit and optimism. Perhaps I should do blogging "requests". If anyone has ideas for topics or anything that they would like to hear my views on, then please let me know. Otherwise, you will be stuck with international politics and legal affairs.

RN (Zimbabwe)

At last, the Asylum and Immigration Tribunal have recognised the problems in Zimbabwe. A new decision has just been issued which recognises that those who are not loyal to the regime of President Mugabe may face a real risk of persecution on return to Zimbabwe. This is supported by all the objective evidence and is the view of the leading experts on Zimbabwe. It is also something that I and many other lawyers have been arguing for some time now, without any success.

The decision will affect thousands of failed Zimbabwean asylum seekers who have had their cases rejected and who have been told that they would not face mistreatment should they be returned to Zimbabwe.

The decision is truly a victory for, least of all, common sense. Whilst we have various statements from numerous Government Ministers in both the Commons and the Lords on how bad the deteriorating situation in Zimbabwe is, the Secretary of State for the Home Department has always maintained before the Asylum and Immigration Tribunal that those who ask for protection in the United Kingdom do not require it. The decision at paragraph 135 describes the Home Secretary's position in this litigation as:

“irreconcilable with the public statements of the senior ministers. Where such statement have been made in Parliament, they must it is said, be taken to represent the position of the Government”

It would be interesting to see the figures in relation to how many people claimed asylum from Zimbabwe in the recent years. From first hand experience, I can tell you that the numbers would be high. It would also be interesting to see from the SSHD how many of those claims were rejected. I can also tell you that this would be an extremely(!) high proportion. Let us not forget the role of the Asylum and Immigration Tribunal. It cannot be blame-free. For example, I had a decision last week which stated that the individual concerned would not face persecution on return to Zimbabwe because “the Mugabe regime is no longer in control” Where this came from, goodness only knows. Needless to say, this is currently being appealed. However, decisions of this calibre do not help matters.

It is about time that the Home Office sorted the mess out. There are thousands of Zimbabweans who have failed claims. They are not entitled to benefits and they are not permitted to work. They are not provided with accommodation and are forced to support themselves. Many Zimbabweans I know are on the verge of destitution. They cannot be sent home to Zimbabwe because the SSHD recognised some time ago that the country is so bad that no-one can be returned there. Most other European countries (Sweden, Denmark, Germany etc) also adopt a no-returns approach. The outcome? Limbo.

This case would give the SSHD the opportunity to clear up many of those who deserve status - the families, those in relationships with British nationals, those with British children, those who are politically active in the various exiled opposition groups (with the largest in Britain being the MDC).

MDC UK has active branches across Britain with large groupings in Glasgow, Birmingham and Edinburgh. Many of those activists can be seen at street stalls in the town centres on a Saturday afternoon attempting to raise awareness of what is happening in Zimbabwe. Many of these organisers have been told that they can go back to Zimbabwe without the prospect of facing problems from the CIO (Central Intelligence Organisation) or Mugabe's militia etc. Hopefully this case will turn the tide.

I would like to end this post on an optimistic note. However, knowing the Home Office, I doubt very much whether this case will have the impact it ought to.

Chagos Islands

Further to the last post, I would wish to highlight the case of R (on the application of Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61. The discussion on the law is fascinating and relates to the powers and prerogatives of the King to legislate in his conquered or ceded colonies. I do not intend to look at the legal issues, but rather to quote some interesting comments from the judgement.

This is an unusual case which concerns a set of islands thousands of miles from our shores. The islands are known to us as the British Indian Ocean Territory (BIOT for short). To the people who once inhabited the islands, they are known as the Chagos Islands. In terms of where the islands are, Lord Hoffman at para 3 of his decision describes them as:

"situated south of the equator, about 2200 miles east of the coast of Africa and 1000 miles south-west of the southern tip of India. It consists of a group of coral atolls known as the Chagos Archipelago of which the largest, Diego Garcia, has a land area of about 30 km2. Some distance to the north lie Peros Banhos (13 km2) and the Salomon Islands (5 km2)."

Now we all know where we are, let us look to what the issue is. The tale of these islands is horrific. It is a sad tale that is not spoken about. Lord Rodger (at para 75) talks about "the unhappy - indeed, in many respects, disgraceful - events of forty years ago..."

Allow me to set the background by quoting directly from Lord Hoffman (paras 4 & 5):

"4. The islands were a dependency of Mauritius when it was ceded to the United Kingdom by France in 1814 and until 1965 were administered as part of that colony. Their main economic activity was gathering coconuts and extracting and selling the copra or kernels. In 1962, when the plantations were acquired by a Seychelles company called Chagos Agalega Company Ltd (“the company”) the settled population was a very small community (less than 1,000 on the three islands) who called themselves Ilois (Creoles des Iles) and whose families had in some cases lived in the islands for generations. With the assistance of contract labour from the Seychelles and Mauritius, the Ilois were mainly employed in tending the coconut trees and producing the copra.

5. The evidence suggests that the Ilois, who now prefer to be called Chagossians, lived an extremely simple life. The company, whose managers acted as justices of the peace, ran the islands in feudal style. Each family had a house with a garden and some land to provide vegetables, poultry and pigs to supplement the imported provisions supplied by the company. They also did some fishing. There was work in the copra industry as well as some construction, boat building and domestic service for the women. No one was involuntarily unemployed. Most of the Chagossians were illiterate and their skills were confined to those needed for the activities on the islands. But they had a rich community life, the Roman Catholic religion and their own distinctive dialect derived (like those of Mauritius and the Seychelles) from the French. "


Well, I do not know about everyone else, but it sounds like quite a paradise to me. So what is it that could possibly have happened to such a scenic little place that could have resulted in the House of Lords discussing it. Well, in a nut shell, real politik hit them:

"6. Into this innocent world there intruded, in the 1960s, the brutal realities of global politics. In the aftermath of the Cuban missile crisis and the early stages of the Vietnam War, the United States felt vulnerable without a land based military presence in the Indian Ocean. A survey of available sites suggested that Diego Garcia would be the most suitable. In 1964 it entered into discussions with Her Majesty’s Government which agreed to provide the island for use as a base. At that time the independence of Mauritius and the Seychelles was foreseeable and the United States was unwilling that sovereignty over Diego Garcia should pass into the hands of an independent “non-aligned” government. The United Kingdom therefore made the British Indian Ocean Territories Order 1965 SI No 1920 (“the BIOT order”) which, under powers contained in the Colonial Boundaries Act 1895, detached the Chagos Archipelago (and some other islands) from the colony of Mauritius and constituted them a separate colony known as BIOT. The order created the office of Commissioner of BIOT and conferred upon him power to “make laws for the peace, order and good government of the Territory.” Those inhabitants of BIOT who had been citizens of the United Kingdom and Colonies by virtue of their birth or connection with the islands when they were part of Mauritius retained their citizenship. When Mauritius became independent in 1968 they acquired Mauritian citizenship but, by an exception in the Mauritius Independence Act 1968, did not lose their UK citizenship.

7. At the end of 1966 there was an exchange of notes between Her Majesty’s Government and the Government of the United States by which the United Kingdom agreed in principle to make BIOT available to the United States for defence purposes for an indefinitely long period of at least 50 years. It subsequently agreed to the establishment of the base on Diego Garcia and to allow the United States to occupy the other islands of the Archipelago if they should wish to do so.”

What happened? Well the USA required a base in the middle of the Indian Ocean, so we emptied the islands of the inhabitants and sent them all to Mauritius. On top of this, we created what is politely termed a "legal fiction". This was when we legislated to enure that we arrived in a position where, in law, it appeared that there had never been any indigenous population on those islands to which the United Kingdom owed any obligations to. The judgement describes at paras 10 and 11 how the community fared in their new home:

"For the most part, the community was left to fend for itself in the slums of Port Louis"

and

"When the Chagossians arrived in Mauritius they found themselves in a country with high unemployment and considerable poverty. Their conditions were miserable."

Legal battles for compensation have been going on quietly for a number of years. The UK Government did accept that the "removal and resettlement of the Chagossians was accomplished with a callous disregard of their interests" (para 10). However, the UK Government are still preventing resettlement of the islands.

One reason for this is that resettlement would not be viable. In order to resettle the population in their ancient homelands, massive economic investment would require to me made. Also, there is the small fact that the largest of the islands, Diego Garcia, houses a US military base. This particular island entered public consciousness earlier this year. Lord Hoffman has the details at para 35:

"On 21 February 2008 the Foreign Secretary told the House of Commons that, contrary to previous assurances, Diego Garcia had been used as a base for two extraordinary rendition flights in 2002 (Hansard (HC Debates), cols 547-548). There are allegations, which the US authorities have denied, that Diego Garcia or a ship in the waters around it have been used as a prison in which suspects have been tortured. The idea that such conduct on British territory, touching the honour of the United Kingdom, could be legitimated by executive fiat, is not something which I would find acceptable"

Presumably now everything becomes clear. I suppose that the argument goes that the islands are of strategic importance to "our" security interests and therefore our actions are legitimate. Surely this cannot be correct. The Law Lords in this case are divided, but in the end decide to do nothing to assist the islanders. In terms of security interests, Lord Hoffman has the following to say at para 57:

"In addition, as Mr Rammell told the House of Commons, the government had to give due weight to security interests. The United States had expressed concern that any settlement on the outer islands would compromise the security of its base on Diego Garcia. A representative of the State Department wrote a letter for use in these proceedings, giving details of the ways in which it was feared that the islands might be useful to terrorists. Some of these scenarios might be regarded as fanciful speculations but, in the current state of uncertainty, the government is entitled to take the concerns of its ally into account." [emphasis added]

Lord Bingham at para 72 also has something to say regarding the US' security assessment:

"Despite highly imaginative letters written by American officials to strengthen the Secretary of State’s hand in this litigation, there was no credible reason to apprehend that the security situation had changed. It was not said that the criminal conspiracy headed by Osama bin Laden was, or was planning to be, active in the middle of the Indian Ocean. In 1968 and 1969 American officials had expressly said that they had no objection to occupation of the outer islands for the time being" [emphasis added]

So what are we to take from this case? Well one must wonder whether the UK can ever achieve an ethical foreign policy. One must wonder how the UK can be seen as the protectors of human rights when we engage in such actions as described here. One is also left to ponder the wider issue of how much weight we give "security" considerations when dealing with the rights of individuals or communities.

Bias or No Bias?

At the end of last week, the House of Lords published two interesting decisions. The first is Helow v. Secretary of State for the Home Department [2008] UKHL 62. The second case is R (on the application of Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61. I intend to detail the first case and we shall look at the second one later.

Both are available on the website. The first at:

http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd081022/helow-1.htm

and the second at:

http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd081022/banc-1.htm

The first is a fascinating case which originates from the Asylum & Immigration Tribunal (AIT) in Glasgow. This is a place where I have the joy of spending most of my weeks. I have known about this case for some time and have been eagerly awaiting the judgement. The question of whether the judgement is correct in law is a difficult one. I have a gut feeling that it cannot possibly be correct. I do not intend to rehearse all the legal arguments here, but I merely want to lay out the facts to highlight the decision. The decision is fairly short and is a good read, so I would encourage those with an interest to read it.

In terms of the facts, the case involves a young Palestinian girl who claimed asylum in the United Kingdom. The basis of her claim was, in short, that her family were active within the PLO and that she and a number of her family members were present during the massacres in the Sabra & Shatila refugee camps in 1982. As a witness to the massacres, she publicly blamed Ariel Sharon, a recent Prime Minister of Israel. She was also one of the main witnesses who helped instigate proceedings in the Belgian courts against Ariel Sharon, whilst he was the Israeli PM. (Interestingly, the statute which allowed the Belgian courts to take such action has been repealed, as I understand it).

Against this background, she claims asylum in the UK. Her case is refused by an Adjudicator (as they then were). An appeal was marked to the Immigration and Asylum Tribunal (as it then was) and this is again refused. Following the standard appeal routes, the case goes to the Court of Session where the papers are allocated to Lady Cosgrove. This is where the apparent problem arises which is the subject of the most recent litigation.

Lady Cosgrove is a well respected judge who is a member of the International Association of Jewish Lawyers and Jurists. As a member, she would receive a copy of the association's quarterly magazine and the appellant contended that as a result of this membership and considering a number of partisan articles within the magazine, there was the appearance of bias.

The lawyers amongst us will know that the test in cases of bias is laid out in Porter v. Magill [2002] 2 AC 357:

"The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased"

Guided by Porter, the Law Lords held unanimously that there was no reasonable possibility of bias in this particular case. A number of reasons were given for arriving at this conclusion. It was clear that had Lady Cosgrove herself said or published anything, then that would have been a different matter. However, it was held (Lord Rodger, para 20) that mere membership alone is not sufficient enough to impute the published views of other members onto Lady Cosgrove. Lord Cullen notes at para 29 that there was no indication that Lady Cosgrove "endorsed, was interested in, let alone read, the articles and pronouncements founded on..."

So is the decision the correct one? The quick answer is that I do not know. I can clearly understand the reasoning of the court. I am a member of a number of organisations. Some of my fellow members hold views which I consider extreme and which I never could endorse. Is it correct that their views be imputed to me? Probably not. However, will this particular appellant feel that justice has been done? Most probably not. will she feel that justice "has been seen to be done? Again, most probably not.

Kick Start

I thought I would try blogging. Every man (and woman) under the sun seems to be committing their thoughts to papers, so I may as well join the fun.

The other day at work I was chatting to an old associate. We were talking politics. He is an old style lawyer who has taught me a lot about times past. I am embarking on my career and he is coming to the end of his. He often tells how different life in the office was when he started - no emails, no faxes, one page leases, simple missives, long boozy lunches and barbaric judges in court on a Friday morning. Some would say, the good old days...

He also tells of an era where politics was different. A time when Cabinet Ministers had mistresses and drink problems, but a time when the media felt no need to report it all and where private life meant life which was private, Changed days - well, in some respects anyway.

It was during this discussion that made me think I should start a diary. We moved on to talk about the diaries of Lord Donoghue. He was head of the Policy Unit of the Number 10 of Messrs Wilson and Callaghan. The associate made the comparison to the Alastair Campbell diaries. One set were published at a time when most of those mentioned were off the scene. The other set were written with a view to publication immediately. Whatever one's views are, the thought of note keeping in such a manner obviously has attractions.

My intention is to put to paper (does this count as "putting to paper"??) my thoughts on issues of the day. Whether they be legal, political, social, economic etc. It may be that in 6 months time, I will regret having placed my head above the parapet in such a manner. It may be that in 3 weeks time, I get bored blogging and give up. Or it may be that I will be able to look back at my views and shake my head at the foolishness of youth. Who knows. All I can say is that I start out with good intentions and that I reserve the right to chop and change my mind on any issue I put my thoughts down on.

I hope that this will be the start of a long and happy relationship