Asylum - Asylum seekers - Persecution

(1) RT (Zimbabwe) (2) SM (Zimbabwe) (3) DM (Zimbabwe) (4) AM (Zimbabwe) v Secretary of State for the Home Department: CA (Civ Div) (Lords Justices Carnwath, Lloyd, Sullivan): 18 November 2010

The appellants (Z) appealed against decisions of the Asylum and Immigration Tribunal (AIT) upholding decisions of the respondent secretary of state dismissing their claims for asylum.

Z, who were Zimbabwean nationals, had arrived in the UK and claimed asylum. They were not political refugees and had left Zimbabwe for reasons unrelated to any political activities and had not engaged in any significant political activities in the UK. It was Z’s claim that, regardless of their actual political beliefs or activities, or lack of them, there was a risk, particularly having regard to their long absence from Zimbabwe, that if returned they would suffer persecution because of their unwillingness or inability positively to prove their loyalty to the Mugabe regime. Their claims were dismissed and those decisions upheld on appeal. Z submitted that it was impermissible to require them to actively profess a loyalty to a regime which they did not possess or otherwise lie to the authorities to avoid persecution. Z further submitted that the AIT had erred in its application of the guidance contained in RN Zimbabwe CG [2008] UKAIT 00083).

Held: (1) The court was concerned with the imputed political opinions of Z, not their actual opinions. The degree of Z’s political commitment in fact, and whether political activity was of central or marginal importance to their lives, was beside the point. The core of the protected right was the right not to be persecuted for holding political views which they did not have. If Z were forced to lie about their absence of political beliefs, solely to avoid persecution, that was covered by the principle in HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31, [2010] 3 WLR 386 and did not defeat their claims to asylum, HJ applied, TM (Zimbabwe) v Secretary of State for the Home Department [2010] EWCA Civ 916 considered. It was not a question of what a claimant was required to do; if the AIT found that he would be willing to lie about political beliefs, or about the absence of political beliefs, but that the reason for lying was to avoid persecution, that did not defeat the claim. Even if it was found that Z would be prepared to lie, the question would then arise as to whether they could prove their loyalty to the regime (see paragraphs 36-38 of the judgment).

(2) None of Z were political refugees in the ordinary sense and in most contexts their claims for asylum would be hopeless. However, conditions in Zimbabwe as described in RN were exceptional and the legality of the decisions on appeal had to be decided by reference to the guidance in RN, RN applied. Save in respect of one of Z, the appeals would be allowed (see paragraph 53).

Appeals allowed in part.

Hugo Norton-Taylor (instructed by Luqmani Thompson & Partners) for the first, second and third appellants; Hugo Norton-Taylor, Sandra Akinbolu (instructed by Wilson) for the fourth appellant; Alan Payne (instructed by Treasury Solicitor) for the respondent.