Case Comment: RT (Zimbabwe) v SSHD [2010] EWCA Civ 1285

The latest Zimbabwe post is available here. The rest of this post continues as originally published. As predicted by the pundits of human rights law, HJ (Iran) v SSHD [2010] UKSC 31 is really beginning to find its application in the English courts. Regrettably, thus far, the ratio of the Supreme Court decision has rarely been interpreted correctly by the tribunals. It has taken the Admin Court or the Court of Appeal to follow what was said in the UKSC’s 82 page judgment.

From personal experience one can say that in the First Tier Tribunal, which seems to be acting as it were part and parcel of the state’s (UKBA’s) coercive mechanism, judges are unable to grasp the UKSC decision in HJ (Iran) and they keep on referring to the test in the wrong paragraph! That is hard to digest because for £100,000 per annum the sirs and madams of the tribunal should really read and pay more attention to the papers before them (just a request please sirs and madams).

In RT (Zimbabwe), Carnwarth, Lloyd and Sullivan LJJ sitting, deliberated on the additional issue of principle which was identified by Sir Richard Buxton when he granted permission to appeal.

Its my Zimbabwe and i’ll eat it too because i’m mad

For Sir Buxton, “The jurisprudence in relation to return to Zimbabwe has to date assumed that it is legitimate to require applicants, in order to avoid persecution, to demonstrate loyalty to Zanu-PF, itself a persecutory regime. That assumption appears to conflict with the decision of the Supreme Court in HJ (Iran) v SSHD [2010] UKSC 31.”

However, the main issue in this case was whether the country guidance case of RN (Zimbabwe CG) [2008] UKAIT 00083 had been correctly been followed.  One of the problems in the case was that the guidance set out in RN is currently being revised in the Upper Tribunal.

Placing reliance in HJ (Iran), Mr Norton Taylor made three principal submissions on behalf of the appellants:

Firstly, the ratio of HJ (Iran) applies equally to cases concerning political opinion and RN is consistent with this. Thus, an individual found to hold genuine political beliefs cannot be required to modify their behaviour or deny their beliefs in order to avoid persecution. (“the pure HJ (Iran) issue”)

Secondly, it is impermissible to require an appellant to actively profess a loyalty to a regime which he does not possess or otherwise lie to the authorities of the home country or other potential persecutors in order to avoid a condition of persecution. Again, the Zimbabwean country guidance decisions are consistent with this proposition. (“the extended HJ (Iran) issue”)

Thirdly, the Tribunal in each of these linked appeals erred in their application of RN, irrespective of the first two submissions. This final submission may prove to be determinative of all four appeals.” (“the RN issue”)

In relation to the first submission the Court of Appeal found that it was one thing for someone to deny as a matter of compulsion a crucial aspect of her identity affecting her whole way of life, as was the case in HJ. Furthermore, Carnwath LJ did not see eye to eye with Elias LJ’s argument in TM (Zimbabwe) that only when an individual is then forced into a permanent state of denial will HJ (Iran) engaged. However, in HJ the Supreme Court found it unacceptable that someone should have to live a lie in order to avoid persecution. For Elias LJ it did not necessarily follow that in no circumstances can someone be expected to tell a lie to avoid that consequence.

On behalf of the appellants Mr Norton asked the two following questions in relation to his second submission:

i) Apart from HJ (Iran), is it ever relevant for the tribunal of fact to inquire whether a claimant would be willing to lie about his political beliefs in order to avoid threatened persecution?

ii) How is the answer affected by the decision in HJ (Iran)?

Carnwath LJ took the view that “the real question” was whether the HJ (Iran) protection extended to a person who had “no firm political views, but might, if stopped by the militia, be willing to express something more positive than political indifference if that were necessary in order to avoid maltreatment.”

The court found that if claimants for asylum are forced to lie about the absence of their political beliefs, only to avoid persecution, then the point will be covered by the HJ (Iran) principle, and accordingly their claims to asylum remain undefeated (at [36]).

For Carnwath LJ, the matter before him was not only about what the claimant was required to do and if the tribunal found that a person would be willing to lie about their political beliefs, or about the absence of political beliefs, and that if the reason for lying is to avoid persecution, then such actions do not defeat the person’s asylum claim.

Them belly full but we hungry

The court allowed three of the four appeals. This case was decided under RN (Returnees) Zimbabwe CG [2008] UKAIT 00083 which states that conditions in Zimbabwe, as they are,are exceptional and the legality of the Court of Appeal’s decisions were decided by reference to the guidance in that case. This post is principally about the wider application of the HJ (Iran) on which a blog post is available here.

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

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 5, Asylum, Cases, ECHR, High Court of Australia, Persecution, Refugee Convention, Tribunals, UKBA, Zimbabwe and tagged , , , , , . Bookmark the permalink.

3 Responses to Case Comment: RT (Zimbabwe) v SSHD [2010] EWCA Civ 1285

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