UK Supreme Court makes key Zimbabwe asylum ruling
In a fairly brief decision, a full bench of seven lord justices upheld the correctness of the Court of Appeal decision in RT (Zimbabwe).
“Is it an answer to a refugee claim by an individual who has no political views and who therefore does not support the persecutory regime in his home country to say that he would lie and feign loyalty to that regime in order to avoid the persecutory ill-treatment to which he would otherwise be subjected?”
And writing the majority opinion, Lord Dyson puts the discussion in the context of the current Country Guidance case of RN (Zimbabwe) which confirms that anyone who is not loyal to Robert Mugabe’s regime will be at risk upon forcible return to Zimbabwe. He crystallises the issues before the court as:
# Whether the HJ (Iran) principle – which says that homosexuals do not have to lie about their sexuality to avoid persecution – can apply to an individual who has no political beliefs but has to pretend to support a political regime in order to avoid the persecution?
# Whether there is a real risk that such a person would face persecution on the grounds that he would be perceived to be a supporter of MDC, even though he may not be an MDC supporter?
Relating to the first issue, the Supreme Court states that the Refugee Convention gives equal protection to the right to express political opinion openly as it does to the right to live openly as a homosexual. There are no hierarchies of protection.
This applies equally to someone who actually has no political beliefs but who is forced to pretend he does have them to avoid persecution. This is because under both international and European human rights law, 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.
In other words, “freedom to express one’s opinion necessarily includes freedom not to express one’s opinion”. More to the point, “Refugee law does not require a person to express false support for an oppressive regime”.
The judges said that this is because the idea “if you are not with us, you are against us” pervades the thinking of dictators. “From their perspective, there is no real difference between neutrality and opposition.”
As for the second issue, the Supreme Court confirms that even though a person may not in fact hold any political opinion, he may be perceived to hold them. As this leads to persecution, such a person is worthy of protection because it is the perspective of the persecutor which is determinative in this respect.
However, the more important enquiry relates to situations where people may pretend or lie that they in fact support a repressive regime. It is therefore crucial to assess whether they would be believed. In the context of Zimbabwe, for instance, a person may lie that they support Mugabe. But would the militias necessarily believe them?
The Supreme Court answers this by confirming that, on the current evidence, there is a high likelihood of being stopped at roadblocks and being interrogated in Zimbabwe except for those living in more affluent low density urban areas or the suburbs. And upon interrogation, it is highly likely that they would be disbelieved if they stated that they support Mugabe.
In a concurring speech, Lord Kerr emphasises that as a general principle, the denial of refugee protection on the basis that the person who is liable to be the victim of persecution can avoid it by lying is deeply unattractive, if not totally offensive.
This decision comes hard on the heels of yet another welcome development regarding the Country Guidance position by virtue of a Court of Appeal Consent Order which means that EM (Zimbabwe) is no longer good law.
RN (Zimbabwe) is now the current applicable law. RN (Zimbabwe) simply says that any Zimbabwean who has been in the UK for some time (the threshold in RN is 2 years) and who has claimed asylum should succeed in their claim if they have been found to be generally credible. This is because they will find it very hard to demonstrate that they are loyal to the Mugabe regime.
It should be possible to make a successful asylum claim on the basis of these developments, and for failed asylum seekers, to lodge fresh asylum applications simply on the basis of this decision, especially where someone was refused on the basis of EM (Zimbabwe).
All this will become even more relevant as the general elections draw nearer. We understand that the D-Day will either be late this year or early next year – which is more probable. What is beyond any shred of doubt is that this election is the big one and anyone who believes that Mugabe is ready to cede power to Tsvangirai is smoking something very strong.
Taffi Nyawanza is the principal of Genesis Law Associates, a specialist immigration and asylum law firm in Birmingham. He can be contacted on email@example.com or ph. 0121 212 0451 or visit Genesis Law Associates’ website at www.genesislaw.co.uk
Disclaimer: This article only provides general information and guidance on immigration law. It is not intended to replace the advice or services of a solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information