Case Comment: TM (Zimbabwe) & Ors v Secretary of State for the Home Department [2010] EWCA Civ 916

The present case from Zimbabwe is about refugee sur place activity. This is where persons who were not refugees when they left their countries of origin became refugees later because of intervening events. Refugees sur place may owe their fear of persecution to a change in the country of origin, such as a coup d’état, or to bona fide political activities undertaken in the country of refuge.

At paragraph 32 Elias LJ explained that:

“In HJ the issue for the court was whether a gay person who would be persecuted if his or her sexual orientation became known to the authorities in the home state could be required voluntarily to conceal that orientation, behave discreetly, and thereby avoid persecution. The Supreme Court Justices … unanimously held that he could not be required to act in that way.”

In the present case the appellants were members of the Movement for Democratic Reform in Zimbabwe who, after initially gaining entry clearance for 6 months, made asylum claims which were spiced up by the applicant’s involvement with anti-governmental activity in the sponsor state. The asylum claims were refused and the court dismissed the appeal.

What was said in this case which was most interesting was the court’s observation (at [38] per Elias LJ) that “[p]lainly the ratio of HJ is not limited just to sexual orientation cases but will apply to all grounds covered by the Convention.” This comment owes its existence to Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473, para 41, which was approved by the judges in the Supreme Court.

The judges had said that the objective of the Convention would be undermined if signatory countries required persecuted groups to modify their beliefs in relation to their behaviour or opinions or to hide their race, nationality or membership of particular social groups. In this case the sur place activity of the appellants was found insufficient by the court for the purposes of their asylum claim.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Asylum, Cases, Court of Appeal, Persecution, UKBA, Zimbabwe and tagged , , , . Bookmark the permalink.

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