RT (Zimbabwe) & Ors v SSHD – Case note

In RT (Zimbabwe) & Ors v Secretary of State for the Home Department [2010] EWCA Civ 1285 the Court of Appeal [Carnwarth, Lloyd and Sullivan LJJ] held that the principle – that a person with ‘…genuine political beliefs cannot be refused refugee status merely because they have declined to hide those beliefs, or to act “discreetly”, in order to avoid persecution’ [94, HJ(Iran)] – extends to a person who has no firm political views, but might, if stopped by militia, be willing to express something more positive than political indifference, if that were necessary to avoid maltreatment:

36. …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.  … 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.

38.  …Even if it is found that the appellants would be prepared to lie, the question then arises whether they can “prove” their loyalty to the regime. That is not an issue which arose for consideration in HJ(Iran). It is true that the onus is on them to satisfy the tribunal that they would be unable to prove their loyalty. As has been seen, failure to do so seems to have been the basis on which this court was able to dismiss the appeals in TM. However, that issue can only be addressed by reference to the findings in each case.

The reference to TM [38] is to TM (Zimbabwe) v SSHD [2010] EWCA Civ 916, an earlier case that also considered the effect the tribunal’s RN guidance. TM was given full attention by their Lordships. First, they held that although the HJ (Iran) point had been canvassed in TM, that Court had not found it necessary to reach a conclusion on the issue [16, 17 and 33] Secondly, they held that the ratio of TM was limited to cases where only heightened RN risk categories were relevant [11, 24]. In TM the Court held:

“16. A question that arises from the guidance is this: what exactly is the significance of the fact that certain categories of asylum seekers will be in the heightened risk category? The fact that an asylum seeker falls into one or more of the enhanced risk categories is not of itself sufficient to justify the grant of asylum as paragraph 230 of the decision in RN, reproduced above, makes clear. The question is whether he faces a real risk of persecution on return; he will do so from the militia gangs unless he is able to show loyalty to the governing party.

17. So the onus is on the applicant to show that there is a real risk that he will not be able to demonstrate the required loyalty. Falling into a heightened risk category does not of itself constitute such evidence. Being a teacher or a failed asylum seeker is plainly not incompatible with being a Zanu-PF supporter or activist. It does, however, mean that the applicant will on return be likely to be subject to heightened scrutiny. If, for example, the authorities in Zimbabwe know that an asylum seeker was previously a teacher, they are more likely to start from the premise that he is likely to be hostile to the regime.”

This decision is welcome for bringing clarity to the scope and application of RN, although the Court was at pains to stress the fact specific nature of such enquiries and noted that the UT have reviewed the RN guidelines in a case heard, but not yet promulgated, noting also that removals to Zimbabwe remain suspended [3]

About jcwi

Joint Council for the Welfare of Immigrants is a key campaigning voice in the field of immigration, asylum and nationality law and policy. It is completely independent from government funding, remaining entirely free from government influence. View all posts by jcwi

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