On appeal from [2010] EWCA Civ 1285; [2011] EWCA 275

The respondents (and in the case of KM, the appellant) are nationals of Zimbabwe. They all, at various points, sought and were refused asylum in the UK. They were not ‘political refugees’, in that they had no particular political commitments in Zimbabwe, and left for reasons unrelated to political activity and did not engage in any significant political activity in the UK. However, they contend that they face a real risk of persecution if returned given their long absence from Zimbabwe and an unwillingness or inability to positively prove their loyalty to the Mugabe regime. The current situation in Zimbabwe is such that those at risk are not simply those who are MDC supporters but also anyone who cannot demonstrate positive support for the Zanu-PF.

The question facing the Supreme Court is the applicability of the ‘HJ Iran principle’. The case of HJ Iran is well known for a number of reasons, not least for the fact that it is the only Supreme Court case to reference Kylie Minogue in the judgment. HJ Iran established that individuals could not be expected to modify their behaviour and deny their sexuality in order to escape persecution. The question facing the Supreme Court was whether the principle extended to a person with no firm political views but who might be willing to lie in order to avoid persecution.

The Court of Appeal Decision

In the Court of Appeal, two main submissions were made on behalf of those seeking asylum:

  1. The ratio of HJ (Iran) applies to cases concerning political opinion. 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.
  2. It is impermissible to require an applicant 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.

The Court of Appeal found that the first submission was not in issue; as a general proposition a person found to have genuine political beliefs cannot be refused refugee status because they decline to hide those beliefs or act discreetly in order to avoid persecution. The main discussion therefore focused on the second submission; that the same principle applies even if a person holds no genuine political opinions, they cannot be required to profess false loyalty or dissemble views they do not possess. Counsel for the Secretary of State relied on the dicta of Elias LJ in TM (Zimbabwe):

“On that analysis, there is a good case for saying that where the activity which would create the risk of persecution is the need to deny disloyalty to a political party by someone whose political interests or activities are of marginal interest to their lives, this engages only the margins of their human rights and the AIT would be entitled to conclude that they would in fact be, and could be expected to be, less than frank with the Zimbabwean authorities. They would not be required to modify their beliefs or opinions in any real way. It is one thing for a person to be compelled to deny a crucial aspect of his identity affecting his whole way of life, as in HJ. Furthermore, the individual is then forced into a permanent state of denial. The Supreme Court found it unacceptable that someone should have to live a lie in order to avoid persecution. It does not necessarily follow that in no circumstances can someone be expected to tell a lie to avoid that consequence.”

The Court of Appeal found this distinction between individuals whose political beliefs formed a ‘core’ part of their lives, and those for whom political beliefs were only a ‘marginal’ part of their lives, flawed:

“The question is not the seriousness of the prospective maltreatment (which is not at issue) but the reason for it. If the reason is political opinion, or imputed political opinion, that is enough to bring it within the Convention. In this case we are concerned with imputed political opinions of those concerned, not their actual opinions. Accordingly, the degree of their political commitment in fact, and whether political activity is of central of marginal importance to their lives, is beside the point … If the tribunal finds that he or she would be willing to lie about political beliefs, or about the absence of political beliefs, but that the reason for lying is to avoid persecution, that does not defeat the claim … Even if it is found that the appellants would be prepared to lie the questions then arises whether they can ‘prove’ their loyalty to the regime. That is not an issue which arose in HJ Iran. It is true that the onus is on them to satisfy the tribunal that they would be unable to prove their loyalty.”

The Secretary of State appealed these findings.

The Supreme Court Decision

The Court dismissed the Secretary of State’s appeal in the case of RT & Ors and allowed KM’s appeal. The Secretary of State’s argument can be summarised as follows:

–        The Court of Appeal were wrong to say that if claimants were forced to lie about their political neutrality or indifference solely to avoid persecution the concealment of their lack of political beliefs would not defeat their claims to asylum. HJ Iran does not establish any such rigid principle.

–        What is required is a fact sensitive analysis and consideration of whether interference with the claimant’s freedom to hold or not to hold political opinions is at the core of a protected right and requires them forfeit a fundamental human right.

–        The issue in these cases did not relate to a fundamental or immutable right, since the claimants did not have any political views, and they were not therefore being required to forfeit a fundamental human right in order to avoid persecution. The situation contemplated in HJ Iran was one where a person has to conceal a fundamental part of his identity at all times, where in these cases the situation is one where a person on isolated occasions may be required to spend a very short amount of time professing a feigned opinion on a matter of politics.

 The Court dismissed this argument in robust terms. Firstly, the Court reiterated that the HJ Iran principle applies to any person who has political beliefs and is obliged to conceal them in order to avoid persecution. There is no hierarchy of protections within the refugee convention and the Convention affords no less protection to the right to express political opinion openly than it does the right to live openly as a homosexual. Secondly, the right to hold political beliefs (stemming from the right to freedom of thought) protects non-believers as well as believers. Freedom of thought extends to the freedom not to hold and not to have to express opinions. The Court referred to the General Comment of the UN Human Rights Committee of 19 September 2011, that unequivocally states:

“Any form of effort to coerce the holding or not holding of any opinion is prohibited. Freedom to express one’s opinion necessarily includes freedom not to express one’s opinions”[33]

This proposition is supported ECHR and international case law. Although much of the case law referred to (including Buscarini & Ors v San Marino (1999) 30 EHRR 208) concerned the freedom not to hold religious rather than political beliefs, the principles expressed in those cases applied in this instance.

The Court then went to on to analyse the validity of the distinction between individuals who face a threat to the ‘core’ of a protected right and those who face interference at the ‘margin’ of a protected right. According to this argument a committed political neutral would be afforded protection but not an individual to whom neutrality is a matter of indifference (i.e. someone who has never really thought about politics or for whom politics of no interest). The Court rejected this distinction; given that the right not to hold a political belief is a fundamental one there is “nothing marginal about it. Nobody should be forced to have or express a political opinion in which he does not believe. . . A focus on how important the right not to hold a political or religious belief is to the applicant is wrong in principle”[42]. The Court then offered a brief piece of literary criticism:

“As regards the point of principle, it is the badge of a truly democratic society that individuals should be free not to hold opinions. They should not be required to hold any particular religious or political beliefs. This is as important as the freedom to hold and (within certain defined limits) to express such beliefs as they do hold. One of the hallmarks of totalitarian regimes is their insistence on controlling people’s thoughts as well as their behaviour. George Orwell captured the point brilliantly by his creation of the sinister “Thought Police” in his novel 1984. 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”[43]

The Court also found that such a distinction would be unworkable in practice, as it would be nigh on impossible to decide where the line between core/marginal beliefs fell, and would be likely to lead to inconsistent results.

Furthermore, whether an individual is a committed political neutral or not is largely irrelevant, given that it is recognised that an individual may be a at risk of persecution on the grounds of imputed opinion and it is unimportant whether they in fact hold that opinion or not. The question common to all the cases was whether there was a real risk of the political neutrality of the claimants being discovered even if the claimants were to dissemble and say that they supported the regime. The Court found that, given the current situation in Zimbabwe, it was likely that individuals would be stopped and interrogated as to their political affiliation on a regular basis, and it was likely that their political neutrality would be discovered.

If there were any doubts as to the sentiments of the Court, Lord Kerr’s concurring judgment made them abundantly clear:

As a general proposition, the denial of refugee protection on the basis that the person who is liable to be the victim of persecution can avoid it by engaging in mendacity is one that this court should find deeply unattractive, if not indeed totally offensive. Even more unattractive and offensive is the suggestion that a person who would otherwise suffer persecution should be required to take steps to evade it by fabricating a loyalty, which he or she did not hold, to a brutal and despotic regime.

 As a matter of fundamental principle, refusal of refugee status should not be countenanced where the basis on which that otherwise undeniable status is not accorded is a requirement that the person who claims it should engage in dissimulation. This is especially so in the case of a pernicious and openly oppressive regime such as exists in Zimbabwe. But it is also entirely objectionable on purely practical grounds. The intellectual exercise (if it can be so described) of assessing whether (i) a person would – and could reasonably be expected to – lie; and (ii) whether that dissembling could be expected to succeed, is not only artificial, it is entirely unreal. 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.” [71-2]

The Court’s decision is welcome news for those seeking asylum from Zimbabwe, and in rejecting the distinction between those who are committed political neutrals and those who are simply indifferent to politics the Court adopted a common sense and humane approach. It would be counter to the very aims of the Refugee Convention if ‘political innocents’ caught up in the Mugabe regime should be deprived of its protection. The case also has wider ramifications than its application to those fleeing regimes such as Zimbabwe’s. In reiterating that the right to not hold beliefs of a religious or political nature is as protected as the right to hold those beliefs the  Court has moved closer towards explicit protection for those who disavow belief of any kind, such as atheists, who have previously suggested (as discussed by Rosalind English in an excellent post on the UK Human Rights Blog) that there should be specific protection for non-believers within human rights law. It also raises the interesting suggestion that certain rights, expressed as the freedom to do something,  implicitly contain within them the freedom  not to do something; what is key to human dignity is the ability to exercise a free choice. This seems to be a direction in which human rights law and litigation is moving, as illustrated by the tussle over assisted dying and whether the individual right to life encompasses an individual right to end that life. Watch this space.