Risk of persecution where no political beliefs are held

RT (Zimbabwe) & Ors (Respondents) v Secretary of State for the Home Department
(Appellant); KM (Zimbabwe) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2012] UKSC 38 (25 July 2012)

Summary

The Supreme Court of the United Kingdom considered whether an individual who has no political views, and therefore does not support the persecutory regime in his or her home country, is entitled to a claim for asylum where the alternative is to lie and feign loyalty to that regime in order to avoid persecution.

The Court found in the affirmative. It applied what is known as the HJ (Iran) principle (HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31), pursuant to which a gay man was found to be entitled to live freely and openly in accordance with his sexual identity. In that case, the Court held that it was no answer to the claim for asylum that he would conceal his sexual identity in order to avoid the persecution that would follow if he did not do so.

Facts

This case concerned two appeals regarding claims for asylum made by individuals on the grounds that they had a well-founded fear of persecution in Zimbabwe for not holding political beliefs. The Supreme Court heard these appeals together.

The first appeal was an appeal brought by the Secretary of State against a decision of the Court of Appeal to allow claims for asylum in the United Kingdom by RT, SM and AM. Their claims for asylum had been refused by the Secretary of State and dismissed by the Asylum & Immigration Tribunal on appeal. However, the Court of Appeal had allowed their further appeals on the basis that the HJ (Iran) principle covered circumstances where an individual is forced to lie about their absence of political beliefs, solely in order to avoid persecution.

The second appeal concerned KM. His claim had been refused by the Tribunal, which had found that he had not established an adequate factual basis to support his claim that he would be at real risk of finding himself in a position where he would be unable to demonstrate loyalty to the regime.

The Supreme Court adopted the country guidance provided in RN (Zimbabwe CG) [2008] UKAIT 00083 (RN) for Zimbabwe. The Court in that case had found that there was a campaign of persecution across the country undertaken, not by organised State forces, but by a loose collection of undisciplined militias who have delivered a brutal wave of violence across whole communities thought to bear responsibility for the “wrong” outcome of the March 2008 election. Rather than targeting specifically those who chose to involve themselves with the MDC, those at risk are anyone who cannot demonstrate positive support for Zanu-PF or alignment with the regime.

Decision

The Supreme Court unanimously dismissed the Home Secretary’s appeals in the cases of RT, SM and AM, and allowed KM’s appeal. The Supreme Court applied the HJ (Iran) principle and found that applicants who claim asylum can rely on the grounds of a well-founded fear of persecution for reason of lack of political belief. The right to freedom of thought, opinion and expression protects non-believers as well as believers and extends to the freedom not to hold and not to have to express opinions.

The HJ (Iran) principle

The Supreme Court found that the HJ (Iran) principle applied to applicants who claim asylum on the grounds of a fear of persecution due to lack of political belief regardless of how important their lack of political belief is to them. The Court accepted Counsel for the UNHCR’s analysis of the five principle reasons for the Court’s conclusion in HJ (Iran):

• Treatment of those who lived openly as homosexuals in Iran and Cameroon constituted persecution.
• Sexual orientation was a protected characteristic within the category of membership of “a particular social group”.
• The underlying rationale of the Refugee Convention was that “people should be able to live freely, without fearing that they may suffer harm of the requisite intensity or duration because they are, say, black, or the descendants of some former dictator, or gay”.
• The necessary modification in order to avoid persecution (carrying on any homosexual relationships “discreetly”) ran contrary to this underlying rationale. It involved surrendering the person’s right to live freely and openly in society as who they are, in terms of the protected characteristic, which was the Convention’s basic underlying rationale.
• The modification was a response to the feared persecution “because of these dangers of living openly”. There was a difference between a case where the individual would live “discreetly” because of “social pressures” and the situation where he would behave “discreetly” in order to avoid persecution because he is gay. Only the latter would be entitled to refugee protection, assuming, of course, that he would suffer persecution if he were to live openly as a homosexual.

Risk of persecution on the grounds of imputed political belief

The Supreme Court then considered whether there was a real and substantial risk that the political neutrality of the claimants would be discovered by the militia gangs manning the road blocks even if the claimants were to dissemble and say that they support the regime. The two questions to be considered by the Supreme Court were:

• whether the HJ (Iran) principle could apply to individuals who have no political belief; and
• whether such a person would face a risk of persecution on the grounds of imputed political belief.

The Court found that it was “difficult to 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”.

Can the HJ (Iran) principle apply to individuals who have no political belief?

The Supreme Court referred to the country guidance for Zimbabwe provided by RN and found that it is only if an applicant returns to a milieu where loyalty to the regime is assumed that his claim is likely to fail at this first hurdle. Milieu where loyalty to the regime is likely to be assumed (according to RN) would be affluent, low density urban areas or suburbs, and higher risk areas were identified to be in “rural areas”, “urban districts” and “across the country”.

Will such a person face a risk of persecution on the grounds of imputed political belief?

The Court found that it was difficult to see how a judge could provide confident answers to questions of “how effective a liar the applicant would be when asserting loyalty to the regime; how credulous the interrogators would be in the face of such lies; whether the interrogators might ask the applicant to produce a Zanu-PF card or sing the latest Zanu-PF campaign songs and whether the applicant would be able to produce a card and sing the songs”. The Court found that an immigration judge would almost certainly have to conclude that there would be a real and substantial risk that, if a politically neutral claimant were untruthfully to assert loyalty to the regime, his political neutrality would be discovered.

Relevance to the Victorian Charter

The power to make laws with respect to claims for refugee status is a Commonwealth power, which is not governed by the Victorian Charter of Human Rights and Responsibilities Act 2006. A case concerning a claim for refugee status would, therefore, not engage the Charter.

However, judgments of international courts may be considered in interpreting a statutory provision under section 32 of the Charter. This case may therefore provide guidance for the interpretation of sections 14 (right to freedom of thought, conscience, religion and belief) and section 15 (the right to hold an opinion without interference) of the Charter.

The decision can be found online at: http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2011_0011_Judgment.pdf

Suzy Muller is a Lawyer at Allens.