Expected to show him support?
TM (Zimbabwe) and others v Secretary of State for the Home Department [2010] EWCA Civ 916 – Read judgment
Is it reasonable to expect an asylum seeker on their return to their home country to lie about their political beliefs and thereby avoid persecution? This question was recently addressed by the Court of Appeal in light of a potentially wide-ranging decision of the Supreme Court relating to gay refugees.
Last month the Supreme Court held in HJ (Iran ) v Secretary of State for the Home Department [2010] UKSC 31 that to compel a homosexual person to pretend that their sexuality does not exist is to deny him his fundamental right to be who he is (see our post). When an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, if the tribunal concludes that a material reason for his living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then his application should be accepted [para 82].
Unsurprisingly, asylum seekers, and those representing them, are now seeking to use the principle at the heart of HJ to other grounds covered by the Convention, not just sexual orientation cases. In the recent Court of Appeal case of TM (Zimbabwe) and others v Secretary of State for the Home Department [2010] EWCA Civ 916, Elias LJ considered such an argument in the context of three Zimbabweans who were claiming asylum because of a risk of persecution on the basis of their political opinions were they to be returned.
One of the arguments pursued by the appellants was based the reasoning in HJ. Just as in that case, a gay person could not be required voluntarily to conceal that orientation, or act ‘discreetly’, and thereby avoid persecution, so was it submitted that an asylum seeker cannot be expected to lie about his political opinions in order to avoid persecution. The AIT should therefore assume that an asylum seeker will tell the truth about his political views when questioned in his home country about them. This is of obvious relevance in the context of Zimbabwe, where anyone unable to demonstrate loyalty to the ruling Zanu PF party is presently considered at risk of persecution.
Elias LJ, giving the only reasoned judgment of the court, found it was not necessary for this argument to be resolved for the purposes of these appeals (which were dismissed), so “a determination of this important question will have to await another day”. But his comments, in paragraphs 31-42, indicate what the future lines of argument may be following HJ.
First, he accepted that the ratio of HJ is not limited just to sexual orientation cases, but will apply to all grounds covered by the Convention [38]. It would undermine the object of the Convention if the signatory countries required individuals to modify their beliefs or opinions or to hide their race, nationality or membership of particular social groups.
Second, however, he doubted that the principle enunciated in HJ would be as far-reaching as submitted. Rather, much would depend on the importance of the right concerned to the individual. It is one thing for a gay person to be compelled to deny a crucial aspect of his identity, his sexuality, affecting his whole way of life, as in HJ. But it is another for a person whose political interests or activities are of marginal interests to their lives to be expected to be less than frank with, in this case, the Zimbabwean authorities. In this, Elias LJ cites the reasoning of Sir John Dyson in HJ [para114], and observes “if the proposed action giving rise to the persecution is at the core of a human right, the individual is entitled to persist in it notwithstanding the consequences; he is not required to be discreet. However, if the proposed action is at the margins, persistence in the activity in the face of the threatened harm is not a situation of being persecuted and does not attract protection.”
But drawing a principled distinction between the circumstances where a person can legitimately be expected to lie to avoid persecution, and those such as HJ when they cannot be, may well prove difficult. When is a matter at the ‘core’ of a human right, and when is it ‘at the margins’? Is a person’s desire to express his sexuality openly of greater or less importance than another’s wish to express his political views? Although such issues did not need to be decided in TM (Zimbabwe), there can be little doubt that they will arise for determination in further cases soon. The full ramifications of the Supreme Court’s decision in HJ may not be evident for some time yet.
Read more:
- Previous posts on immigration/extradition
- Gay refugees cannot be sent home and told to hide their sexuality
- When is a human rights claim a human rights claim?
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