Should asylum seekers take action to avoid persecution on the ground of political opinion incorrectly attributed to them?

22 July 2016 by Lois Williams

Secretary of State for the Home Department v MSM (Somalia) and UNHCR (Intervener) [2016] EWCA Civ 715 – Read judgment

The Court of Appeal dismissed the Secretary of State’s appeal challenging the Upper Tribunal’s decision that MSM would have been at risk on return to Somalia on the ground of political opinion.  Exceptionally, the court went on to consider the modification of conduct issue in relation to imputed political opinion on an obiter basis, which gave rise to interesting analysis.

The respondent had worked as a DJ at a Somalian Radio Station from May 2011 until September 2013. In October 2013 he arrived in the UK and applied for asylum on the basis that he was at risk of persecution on return to Somalia for reasons of political opinion and, in particular, due to his profession as a journalist.  He claimed that he had received death threats from Al-Shabaab, which forced him to leave Somalia.

The Secretary of State refused MSM’s application for asylum, essentially on the basis that his claims about Al-Shabaab were not regarded as credible.  MSM’s appeal was dismissed by the First-tier Tribunal (FtT) judge on the basis that MSM’s evidence about coming to the adverse attention of Al-Shabaab was “a total fabrication”. Furthermore he found that the principles in HJ(Iran) (homosexual refugees cannot be expected to hide their sexuality – see our post) did not apply because that case concerned a situation in which in order to avoid the well-founded fear of persecution the application would have to deny himself a fundamental right under the Refugee Convention, namely his innate sexual orientation.  The right to practise one’s profession is not such a right and it was therefore reasonable to expect MSM to revert to teaching as a means of supporting himself while thereby avoiding persecution.

MSM successfully appealed against the FtT’s determination.  The Upper Tribunal preserved the findings of fact rejecting MSM’s claims in relation to the threats.  However, it accepted MSM’s claim that “the pursuit of his chosen career in journalism will involve the expression of political opinions and [it is] at least partially driven by political conviction related to conditions prevailing in Somalia”. The tribunal concluded that if MSM returned to Somalia and continued in his profession there was a real risk he would be persecuted for his political opinion. The tribunal rejected the Secretary of State’s argument that the right in question was the right to practise one’s chosen profession, which is not protected by the Convention. The tribunal made clear that it was a “case of risk arising out of imputed political opinion” and that “the fact that the imputation of the political opinion arises in the context of the appellant’s chosen profession is immaterial and incidental”. As for the modification of conduct question, the tribunal rejected the Secretary of State’s argument that this would not involve the forfeiture of a fundamental human right on the basis that the underlying right was freedom of expression.

Court of Appeal judgment and reasoning

The Court of Appeal dismissed the Secretary of State’s appeal. Giving the leading judgment, Beatson LJ acknowledged there was force in the Secretary of State’s submission that the Upper Tribunal appeared at times to elide actual and imputed political opinion.  However, it was clear that the Upper Tribunal had found that MSM would be persecuted by reason of political opinion (not merely imputed) and that his journalism was at least partly driven by political conviction.  Whilst this was sufficient to dispose of the appeal, the court went on exceptionally to consider the issue of imputed political opinion on an obiter basis.

Beatson LJ held that the text of the Convention and the Qualification Directive contemplates two questions.  The first is whether the applicant faces a well-founded fear of persecution.  The second is the reason for that persecution.  There is a single test for refugee status and, save for Article 8 of the Directive in respect of internal protection and internal relocation, there is no separate test for imputed, rather than actual, protected characteristics. The absence of any provision in the Convention or the Directive dealing with the possibility of avoiding action counted against the Secretary of State’s argument that there could be an approach akin to the internal relocation test in the case of imputed political opinion.

At paragraphs 45-46, the Court rejected the Secretary of State’s submission that Lord Dyson’s acceptance in HJ (Iran) that there may be scope for the application of the distinction between “core” and “marginal” interferences with rights in political opinion cases supported the argument that in cases of imputed political opinion it is appropriate to look at the reasonableness of avoiding action that is possible, and to consider whether avoiding action can be taken without engaging a fundamental right protected by the Refugee Convention.  There were three difficulties with this submission: (1) Lord Dyson had only stated that there may be such scope; (2) His approach was not adopted by the other members of the Supreme Court; and (3) In RT (Zimbabwe) (refugees cannot be expected to lie about political opinion – see our post), Lord Dyson made clear that in HJ Iran he had been saying no more than “a determination of whether the applicant’s proposed or intended action lay at the core of the right or at its margins was useful in deciding whether or not the prohibition of it amounted to persecution”. In this case, the Upper Tribunal’s finding was that MSM faced the risk of persecution if he returned to Somalia as a journalist.

Although the cases relied upon by Beatson J this far had not concerned imputed protected characteristics he went on to endorse the approach of the Federal Court of Australia in Minister for Immigration and Border Protection v Szsca [2013] FCAFC 115.  In that case concerning similar facts, the Federal Court held that the tribunal had erred in looking at whether the applicant could avoid persecution by changing his occupation.  Beatson J concluded that that was also essentially the argument that he would have been inclined to accept had it been necessary to decide the wider question in this case.

Comment

Although another welcome decision for asylum applicants in relation to the modification of conduct issue, the appeal was dismissed on the basis that the Upper Tribunal had found that MSM was at risk of persecution due to actual political opinion. The comments on the wider issue as to the reasonableness of avoiding action in the case of imputed protected characteristics were obiter and therefore not binding authority in future cases. Moore-Bick LJ made clear that:

“52. … we should refrain from expressing a concluded view on the broader question to      which he refers, given that whatever we say will not form part of the reasons for our   decision.  It may seem strange at first sight that a person who would be at risk of     persecution in his own country only by reason of an imputed characteristic whose    existence he could dispel by taking reasonable steps short of compromising his fundamental rights should be entitled to claim asylum.  However, I agree with Beatson LJ that both the language of the Qualification Directive and the decisions to which he refers point to that conclusion.”

It is clear that the language of the Directive and the case law affirms that the focus should be on the persecutor and not what the victim could do in order to avoid persecution. However, as Beatson LJ himself acknowledged, the decisions on this point involved actual rather than imputed protected characteristics, save for the decision of the Federal Court of Australia.  Therefore, whilst his obiter comments strongly supported the application of the principles in HJ Iran and RT Zimbabwe to cases of imputed political opinion, the determination of this issue will have to await another day.