Apolitical Zimbabweans and Persecution

RT (Zimbabwe) & Ors v Secretary of State for the Home Department [2012] UKSC 38 (25 July 2012) 

This case is of great importance not only to the law, but also to the study of politics and international relations. In summary, RT, SM, AM and KM are all from Zimbabwe. The issues before the Court were (i) whether the HJ (Iran) principle – that in order to avoid persecution, a person should conceal their true sexuality by living a “discreet” life – can apply to a person with no political beliefs who must feign support for a regime to avoid persecution that he would experience if his political neutrality were disclosed; and (ii) whether such a person would be persecuted because he would be perceived to be a MDC supporter, i.e. would he face a risk of persecution on the grounds of imputed political belief?

The full facts and appellate history of these cases can be found in the case preview here. In a nutshell, although they were apolitical, RT, SM and AM’s appeals were allowed by the Court of Appeal because expecting them to lie about the absence of their political beliefs, just to avoid persecution, was covered by HJ (Iran) [2010] UKSC 31. The Court of Appeal allowed RT’s appeal and substituted the Tribunal’s decision. However, because credibility was an issue, SM and AM’s cases were remitted to the Upper Tribunal. The SSHD appealed that decision to the Supreme Court. In KM’s case, although it was eventually accepted that the risk of persecution had been inadequately considered because KM’s prospects of demonstrating loyalty to Mugabe’s were marginal, the Court of Appeal remitted the case back to the Tribunal. KM appealed to the Supreme Court.

The Supreme Court

The Court unanimously decided that the HJ (Iran) principle is applicable to persons who claim asylum on the basis of a well-founded fear of persecution for reasons of lack of political belief.

In arriving at this view, the Court observed that it was already “well established” that “hierarchies of protection” between grounds did not exist within the Refugee Convention and the well-founded persecution test was fixed for all Convention reasons: para 25.

Thus, Lord Dyson explained that

26. The HJ (Iran) principle applies to any person who has political beliefs and is obliged to conceal them in order to avoid the persecution that he would suffer if he were to reveal them.

Owing to the operation of international and European human rights law, freedom of thought demanded that people were entirely free not to have to express or not to hold opinions. In fact, such rights were the cornerstone of a free and democratic society and article 10 ECHR (freedom of expression) included the “freedom to hold opinions”: para 36. This requirement was the “badge” of a free society: para 43. Conversely, controlling people’s thoughts was “one of the hallmarks” of a totalitarian regime and George Orwell “captured the point brilliantly by his creation of the sinister ‘Thought Police’ in his novel 1984.” Lord Dyson noted that any political stance which worked on the “either you are with us or against us” ideology could only logically be a dictatorial ideology. Similarly, he explained that

45. There is no support in any of the human rights jurisprudence for a distinction between the conscientious non-believer and the indifferent nonbeliever, any more than there is support for a distinction between the zealous believer and the marginally committed believer. All are equally entitled to human rights protection and to protection against persecution under the Convention. None of them forfeits these rights because he will feel compelled to lie in order to avoid persecution.

In HJ (Iran), the SSHD had maintained that the homosexuals in that case would only rightly have a reasonable fear of persecution if concealing their sexuality became “unreasonably tolerable.” In that case, the said submission was unequivocally rejected because there was no yardstick to measure the tolerability of the experience and it would be unprincipled and unfair to determine refugee status by reference to a person’s strength of feeling about their protected characteristic.

Describing the freedom to hold and express political opinions as a core and fundamental right, Lord Dyson explained that no distinction existed between someone who was a “committed political neutral” and someone who did not give thought to political matters.

In defending her position, the SSHD relied on the purported distinction to argue that a person who does not think about politics and is not interested in it was not protected under HJ (Iran) because in such a case, “false support for the regime would cause interference at the margin, rather than the core, of the protected right and would not cause him to forfeit a fundamental human right”: para 41, emphasis supplied.

But this approach was emphatically rejected not only on the basis of legal unsoundness (paras 42 – 45), but also because the distinction suggested was “unworkable in practice”: para 46. Taking the opportunity to clarify the true position, Lord Dyson explained

 51. What matters for present purposes is that nothing that was said in the Authority’s decision or by us in HJ (Iran) supports the idea that it is relevant to determine how important the right is to the individual. There is no scope for the application of the core/marginal distinction (as explained above) in any of the appeals which are before this court. The situation in Zimbabwe as disclosed by RN is not that the right to hold political beliefs is generally accepted subject only to some arguably peripheral or minor restrictions. It is that anyone who is not thought to be a supporter of the regime is treated harshly. That is persecution.

Lord Kerr said that there was no doubt that the appellants would be mistreated in Zimbabwe and that the Court found it “deeply unattractive, if not totally offensive” that refugee protection should be denied where someone was being expected to lie (“engaging in mendacity”): para 71. But the situation is significantly worse and, therefore, much more offensive where someone is expected to fabricate a loyalty to a “brutal and despotic regime.” Concurring with Lord Dyson, Lord Kerr also thought that the core/periphery distinction canvassed on the SSHD’s behalf was unworkable because

72. …To attempt to predict whether an individual on any given day, could convince a group of undisciplined and unpredictable militia of the fervour of his or her support for Zanu-PF is an impossible exercise.

His Lordship fleshed out the critical question as whether there was a right to be apolitical in Refugee Convention terms? The answer to this question is a clear “Yes” and Lord Kerr made plain that entitlement to protection could not be “calibrated according to the inclination of the individual who claims it” because “the essential character” of the right was inherent to its nature and not the value placed on it by an individual: para 74. Ultimately, what went on in the mind of the persecutor, rather than the disposition of the person who is exposed to persecution, was where the emphasis lay. Thus, the idea that people could lie by showing allegiance a pernicious regime was not a solution because the “intellectual exercise” in evaluating whether someone would, and could reasonably be expected to, lie and succeed in avoiding persecution was “entirely artificial” and “unreal”: para 72.

The answer to the second question was that it was widely accepted that political neutrality could be the basis for a claim for refugee status and individuals “may be at risk of persecution on the grounds of imputed political opinion and that it is nothing to the point that he does not in fact hold that opinion”: para 53, Lord Dyson. Imputed political opinion was capable of causing persecution where a politically neutral person was considered to be an opponent of the regime but a claim for asylum could also succeed where, despite assertions of allegiance to the contrary, there was a “real and substantial risk” that the claimant “would be disbelieved and his neutrality would be discovered”: para 55.

The Court observed that its findings would operate in a complex factual matrix in which war veterans and militia gangs manned roadblocks and interrogated civilians across Zimbabwe: the risk persecution was widespread. In these exchanges Zimbabweans were likely asked to show credentials such as a Zanu PF card or sing the latest Zanu PF song. In sum, to convincingly find one’s way out of such a situation would, indeed, be testing. Therefore, in light of the Tribunal’s approach in RN (Returnees) Zimbabwe CG CG [2008] UKAIT 00083 – which was restored when the Court of Appeal overturned EM and Ors (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC) –the Supreme Court found it hard to reject an asylum claim based on imputed political opinion because it was hard

59. … [T]o see how an asylum claim advanced on the basis of imputed political opinion could be rejected, unless the judge was able to find that the claimant would return to a milieu where political loyalty would be assumed and where, if he was interrogated at all, he would not face the difficulties faced by those who were not loyal to the regime in other parts of the country. If the claimant would return to any other parts of the country, the judge would be likely to conclude that there was a real and substantial risk that a politically neutral person who pretended that he was loyal to the regime would be disbelieved.

The Supreme Court dismissed the SSHD’s appeals in the cases of RT, SM and AM and allowed KM’s appeal: para 68.

This was a great hearing to watch live and the most amusing part of it was when Raza Husain QC handed Jonathan Swift QC (to the his utter surprise) a note informing him that EM had been overturned just a few days earlier!

The Supreme Court’s Judgment is available below


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

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appeals, Article 10, Article 9, Asylum, Court of Appeal, UKSC, Zimbabwe and tagged , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.