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.

The Court of Appeal was referred to the reasoning in a recent Supreme Court decision in HJ (Iran ) v Secretary of State for the Home Department, where the court held that to compel a homosexual person to pretend they were heterosexual is to deny him his fundamental right to be who he is (see our post). As a result, 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].

Following the same logic, the appellants in this case argued that it is wrong to require an asylum seeker 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.

A similar argument had been put in another case which followed HJ (Iran), TM (Zimbabwe) and others v Secretary of State for the Home Department, but the court dismissed the appeals on other grounds without directly addressing the point (see our post). In passing, Lord Justice Elias accepted that the decision in HJ (Iran) was not limited to sexual orientation cases, but doubted that if politics were of marginal interest to a person’s life then being forced to lie to the Zimbabwean authorities would be enough to breach their human rights. He cited Sir John Dyson in HJ [para114], and observed “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.”

In this instance the Court of Appeal disagreed with Lord Justice Elias and agreed with the asylum seekers. It adopted the further reaching interpretation of HJ (Iran) which had been doubted (although not rejected) by Lord Justice Elias in TM.  The court ruled that it was wrong in principle to say that people who held no political beliefs should be protected less than those with strong political beliefs. Put simply, nobody should be forced to join a political party if the reason they were doing so was a fear of persecution. Lord Justice Carnworth said:

36. 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 per Lord Hope para 11, 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 (see para 4 above). 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.

37. Accordingly we accept the thrust of Mr Norton-Taylor’s second submission, if not the precise wording. It is not a question of what the claimant is “required” to do. However, 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.

Comment

The Supreme Court’s decision in HJ (Iran), and the principles underlying it, may have unleashed a genie. If a person cannot be expected to hide their sexuality upon returning to their home country in order to avoid persecution, it clearly follows that other important personal characteristics and beliefs should not be hidden either. The crucial question is whether a person needs to hold strong political beliefs (that is, for them to be at the core of their identity) to be protected by the HJ (Iran) principle. According to this Court of Appeal decision, the principle applies even if people hold no political beliefs in the first place: the mere fact of having to join a political party to avoid persecution is enough for an asylum claim to succeed.

This appears to be a decision of wide application. Although the court concluded by saying that “conditions in Zimbabwe… are exceptional“, therefore attempting to limit the decision to cases involving the Zanu-PF, there are many other states with similar regimes which would compel returnees to join political parties or show support. It is hard to see how this decision would not apply to any state with an authoritarian government and restricted politics.

It would be surprising, given the potentially wide-reaching consequences of this decision, if the secretary of state did not appeal to the Supreme court. The Supreme Court may ultimately say that the lower court has extended the HJ (Iran) principle too far. After all, Lord Hope did describe the protection as from the “long-term deliberate concealment” of an “immutable characteristic“. If a person has no strong political beliefs, how can being forced to join a political party amount to the concealment of an immutable characteristic? But, this case was not just about concealment. It was about being forced to join a political party which most consider to be odious, solely due to fear of persecution. That is enough, say the Court of Appeal, to engage the protection of the European Convention on Human Rights.

The Supreme Court made clear in HJ (Iran) that the Convention does not permit, or indeed envisage, applicants being returned to their home country ‘on condition’ that they take steps to avoid offending their persecutors. It also rejected the “reasonable tolerability” of treatment test which had been adopted by the Court of Appeal. It is hard to see, without back-peddling on the principles underlying its own decision, how the Supreme Court will decide this case differently.

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