UK - Court of Appeal, 18 November 2010, RT (Zimbabwe) & Ors v Secretary of State for the Home Department [2010] EWCA Civ 1285

Country of Decision:
Country of Applicant:
Date of Decision:
18-11-2010
Citation:
[2010] EWCA Civ 1285
Additional Citation:
[2011] Imm AR 259, [2011] INLR 217
Court Name:
Court of Appeal
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Headnote: 

The rationale of the decision in HJ (Iran) (see separate summary in this database) applies to cases concerning political opinion. Consequently an individual cannot be expected to modify their political beliefs or deny their opinion in order to avoid persecution. The situation in Zimbabwe was exceptional. At that time, the country guidance held that those who were unable to demonstrate their loyalty to the regime were at risk of persecution. Thus, those with no political beliefs could not be required to profess their loyalty to the regime to avoid persecution and were entitled to refugee status.

Facts: 
The four applicants were all from Zimbabwe. They had not left Zimbabwe for reasons related to political activity, having not engaged with significant political activity there.  However, the country guidance showed that there was a risk of persecution for those unable to demonstrate their loyalty to the regime. The applicants argued that because they had been in the UK for a long period and were unable or unwilling to prove their loyalty to the Mugabe regime, they were at risk.
 
The Upper Tribunal, hearing the cases separately, had dismissed their appeals. The four applicants appealed to the Court of Appeal, which heard the appeals together.
Decision & Reasoning: 
The Court of Appeal held that HJ (Iran) (see separate summary) applied to cases concerning political opinion, endorsing the Secretary of State’s and the applicant’ agreed position. Consequently, an individual cannot be expected to modify their political beliefs or deny their opinion in order to avoid persecution.

The Secretary of State submitted that the Tribunal should consider whether the applicant’s response to avoid a threat of persecution went to the core of the applicant’s identity or not.
 
The Court rejected the submission holding that:
 
“It may be said that there is marked difference in seriousness between the impact of having to lie on isolated occasions about political opinions which one does not have, and the “long-term deliberate concealment” of an “immutable characteristic”, involving denial to the members of the group their “fundamental right to be what they are” [See Lord Hope’s speech in HJ Iran paragraphs 11 and 21]. We are not persuaded, however, that this is a material distinction in this context. The question is not the seriousness of the prospective maltreatment (which is not in 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 the “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 or marginal importance to their lives, are beside the point. The “core” of the protected right is the right not to be persecuted for holding political views which they do not have. There is nothing “marginal” about the risk of being stopped by militia and persecuted because of that. If they are forced to lie about their absence of political beliefs, solely in order to avoid persecution, that seems to us to be covered by the HJ(Iran) principle, and does not defeat their claims to asylum.”

 

The Court then applied these findings to the facts of the appeals.
 
Outcome: 

The first applicant’s appeal was allowed; the second and fourth applicants’ appeals were allowed and remitted to the Tribunal for reconsideration. The third applicant’s appeal was dismissed.

Subsequent Proceedings : 

An appeal from this decision will be heard by the Supreme Court in June 2012.

Other sources cited: 

MacDonald’s Immigration Law and Practice para 12.75

Case Law Cited: 

Australia - Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473

New Zealand - Refugee Appeal No 74665/03 [2005] INLR 68

UK - AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49, [2008] 4 All ER 190, [2008] 1 AC 678, [2007] 3 WLR 832

UK - Ahmed (Iftikhar) v Secretary of State for the Home Department, [2000] INLR 1

UK - BK (Congo) v Secretary of State [2008] EWCA Civ 1322

UK - IK (Turkey) CG [2004] UKIAT 00312

UK - RN (Zimbabwe) CG [2008] UKAIT 00083

UK - TM (Zimbabwe) v Secretary of State for the Home Department [2010] EWCA Civ 916