The claimants said it would be wrong to return them to Zimbabwe where they would be able to evade persecution only by pretending to a loyalty to, and enthusiasm for the current regime.
Held: The Secretary of State’s appeals failed. The HJ principle applied. It was wrong to require someone with no political beliefs to pretend to such beliefs to avoid persecution. There are no hierarchies of protection amongst the Refugee Convention reasons for persecution. Thus the Convention affords no less protection to the right to express political opinion openly than it does to the right to live openly as a homosexual. The Convention reasons reflect characteristics or statuses which either the individual cannot change or cannot be expected to change because they are so closely linked to his identity or are an expression of fundamental rights.
Lord Dyson said: ‘the right not to hold the protected beliefs is a fundamental right which is recognised in international and human rights law and, for the reasons that I have given, the Convention too. There is nothing marginal about it. Nobody should be forced to have or express a political opinion in which he does not believe. He should not be required to dissemble on pain of persecution. Refugee law does not require a person to express false support for an oppressive regime, any more than it requires an agnostic to pretend to be a religious believer in order to avoid persecution. A focus on how important the right not to hold a political or religious belief is to the applicant is wrong in principle.’
and ‘There is no support in any of the human rights jurisprudence for a distinction between the conscientious non-believer and the indifferent non-believer, any more than there is support for a distinction between the zealous believer and the marginally committed believer. All are equally entitled to human rights protection and to protection against persecution under the Convention. None of them forfeits these rights because he will feel compelled to lie in order to avoid persecution.’
Lord Hope, Deputy President, Lady Hale, Lord Kerr, Lord Clarke, Lord Dyson, Lord Wilson and Lord Reed
[2012] UKSC 38, UKSC 2011/0011, [2012] Imm AR 1067, [2012] 3 WLR 345, [2012] INLR 562, [2013] 1 AC 152, [2012] 4 All ER 843, [2012] WLR(D) 226
Bailii, Bailii Summary, SC, SC Summary, WLRD
European Convention on Human Rights
England and Wales
Citing:
Applied – HJ (Iran) v Secretary of State for The Home Department; HT (Cameroon) v Same SC 7-Jul-2010
The claimants sought to prevent their removal and return to their countries of origin saying that as practising homosexuals they would face discrimination and persecution. They appealed against a judgment saying that they could avoid persecution by . .
Cited – RN (Returnees) Zimbabwe CG AIT 19-Nov-2008
AIT 1. Those at risk on return to Zimbabwe on account of imputed political opinion are no longer restricted to those who are perceived to be members or supporters of the MDC but include anyone who is unable to . .
Appeal from – RT (Zimbabwe) and Others v Secretary of State for The Home Department CA 18-Nov-2010
The apellants had sought asylum from Zimbabwe. They appealed against rejection of their claims, saying that it was wrong to require them to return to a place where hey would have to dissemble as to their political beliefs.
Held: The appeals . .
Cited – Regina v Immigration Appeal Tribunal ex parte De Melo and ex parte De Araujo Admn 19-Jul-1996
The court considered a fear of persecution as founding a claim for asylum where a family member attracts the adverse attention of the authorities, whether for non-Convention reasons or reasons unknown, and persecutory treatment is then directed to . .
Cited – Regina v Immigration Appeal Tribunal and Another ex parte Shah HL 25-Mar-1999
Both applicants, Islam and Shah, citizens of Pakistan, but otherwise unconnected with each other, had suffered violence in Pakistan after being falsely accused them of adultery. Both applicants arrived in the UK and were granted leave to enter as . .
Cited – Appellant S395/2002 v Minister for Immigration and Multicultural Affairs 9-Dec-2003
(High Court of Australia) McHugh and Kirby JJ said: ‘Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to state sponsored or condoned discrimination in social life and employment. . .
Cited – KM (Zimbabwe) v Secretary of State for The Home Department CA 17-Mar-2011
. .
Cited – West Virginia State Board of Education v Barnette 14-Jun-1943
(United States Supreme Court) Jackson J said: ‘If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion . .
Cited – Regina v Home Secretary, ex parte Sivakumaran HL 16-Dec-1987
The House of Lords were concerned with the correct test to be applied in determining whether asylum seekers are entitled to the status of refugee. That in turn gave rise to an issue, turning upon the proper interpretation of Article 1.A(2) of the . .
Cited – Kokkinakis v Greece ECHR 25-May-1993
The defendant was convicted for proselytism contrary to Greek law. He claimed a breach of Article 9.
Held: To say that Jehovah’s Witness were proselytising criminally was excessive. Punishment for proselytising was unlawful in the . .
Cited – Buscarini And Others v San Marino ECHR 18-Feb-1999
(Grand Chamber) Elected MPs complained that they were not allowed to take their seats unless they swore an oath in religious form.
Held: This requirement was not compatible with article 9. ‘That freedom [Article 9 freedom of thought] entails, . .
Cited – Starred Gomez (Non-State Actors: Acero-Garces Disapproved) (Colombia) IAT 24-Nov-2000
Dr Storey said: ‘It will always be necessary to examine whether or not the normal lines of political and administrative responsibility have become distorted by history and events in that particular country. This perception also explains why refugee . .
Cited – Secretary of State for the Home Department v K, Fornah v Secretary of State for the Home Department HL 18-Oct-2006
The claimants sought asylum, fearing persecution as members of a social group. The fear of persecution had been found to be well founded, but that persecution was seen not to arise from membership of a particular social group.
Held: The . .
Cited – TM (Zimbabwe) and Others v Secretary of State for The Home Department CA 30-Jul-2010
In each case the appellant sought asylum, and now argued that it was not right for the AIT to reject their claims, failing to follow the country guidance set out in RN. . .
Cited – EM and Others (Returnees) Zimbabwe CG UTIAC 14-Mar-2011
UTIAC 1. Evaluating the position as at the end of January 2011, the country guidance at paragraph 267 of this determination replaces that in RN (Returnees) Zimbabwe CG [2008] UKAIT 00083, as follows:
(1) As . .
Cited by:
Cited – Lee v Ashers Baking Company Ltd and Others SC 10-Oct-2018
The court considered whether a power of appeal to the existed.
Held: A power did exist under FETO, and the CANI having mistakenly excluded a power to appeal the Supreme Court could nevertheless hear it. Both appeals were allowed. . .
Lists of cited by and citing cases may be incomplete.
Immigration, Human Rights
Updated: 11 November 2021; Ref: scu.463145