Can political asylum seekers be expected to hide their political opinions?

13 August 2010 by

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:

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: