The right not to hold any belief is fundamental, says Supreme Court

RT (Zimbabwe) and others (Respondents) v Secretary of State for the Home Department [2012] UKSC 38 - read judgment

It is no answer to a refugee claim to say that the individual concerned should avoid persecution by lying and feigning loyalty to a regime which he does not support.

So the Supreme Court has ruled today, considering the relevance to political beliefs of the so-called “HJ(Iran) principle” which was formulated in a case where it was held that it was no answer to an asylum claim by a gay man that he should conceal his sexual identity in order to avoid the persecution that would follow if he did not do so. Continue reading

Does a Zimbabwe farm invader get refugee status?

SK (Zimbabwe) v Secretary of State for the Home Office 19 June 2012 – read judgment

This case raises the interesting question whether someone who was involved as a member of the ruling Zimbabwe Zanu PF party with farm invasions can be eligible for refugee status. The answer is a definite no: the High Court held that the Upper Tribunal had been entirely correct in finding that  a Zimbabwean national, who had beaten farm workers in farm invasions intended to drive farmers and farm workers away from their farms, had committed inhumane acts amounting to crimes against humanity under the Rome Statute art.7(1)(k) and therefore by virtue of the Convention relating to the Status of Refugees 1951 (United Nations) art.1F(a) was excluded from refugee status. Continue reading

South African police force should not shrink from investigating Zimbabwe torture allegations

South African Litigation Centre and Zimbabwe Exiles Forum v. National Director of Public Prosecutions and other governmental units – read judgment 

South Africa’s North Gauteng High Court has just ruled that South African prosecutors and police illegally refused to proceed with an investigation of systematic torture in Zimbabwe.

South Africa, like many countries, has adopted the international crime prosecution Treaty (“the Rome Statute”). This means that under ordinary domestic law  (the ICC Act)  the South African investigative authorities have the power to prosecute anyone who has committed torture, or a crime against humanity anywhere in the world, if the perpetrator is in the country (at any time when investigation is contemplated). Jurisdiction is also vested irrespective of the perpetrator’s whereabouts if the victim is a South African citizen.

Of course this burden of responsibility teems with diplomatic difficulties, but generally it has been discharged with the convenient prosecutions of has-beens like Charles Taylor and  Slobodan Milošević.

As Naomi Roht-Arriaza points out in her fascinating post on the subject, this particular case of South Africa v Zimbabwe illustrates the strain put on governments by the principle of  complementarity under the 1998 Rome Statute, which puts pressure on implicated states to investigate these major crimes on their threshold, too close to home. It should come as no surprise that South African prosecutors are reluctant to investigate allegations of torture committed in Zimbabwe -

One of the critiques of transnational prosecutions based on universal jurisdiction is that they are a new brand of neo-colonialism, with former colonial powers seeking to bring into court disgraced leaders of their former colonies.

Now the tables are turning, and this universal jurisdiction is not being universally welcomed.

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Asylum seekers cannot be forced to lie about their political beliefs

RT (Zimbabwe) & Ors v Secretary of State for the Home Department [2010] EWCA Civ 1285 (18 November 2010) – Read judgment

The Court of Appeal has ruled that asylum seekers cannot be forced to lie about not holding political beliefs when returning to their home country. The potentially wide-ranging decision extends the protection arising from a recent Supreme Court decision which found that homosexuals could not be sent back to their home country if they would have to lie about their sexuality.

The case concerned four Zimbabwean asylum seekers. In previous asylum cases involving Zimbabwe, it had been assumed that it is legitimate to require applicants, in order to avoid persecution, to demonstrate loyalty to Zanu-PF, itself a persecutory regime. The men in this case did not hold strong political views, but did not support the Zanu-PF either. The question was whether it would breach their human rights to send them back if they would be forced to join the ruling party.

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