Z v Secretary of State for the Home Department

Persecution is not established by every interference with a core human right or by simple deprivation of rights. It requires a real risk of serious harm, assessed in the circumstances of the individual claimant. A person cannot be refused asylum merely because they could avoid otherwise persecutory conduct by modifying their behaviour, where that modification would itself be sufficiently serious to constitute persecution. The tribunal must determine what the claimant would in fact do on return and whether that conduct would expose them to serious harm. On the evidence, the tribunal was entitled to find that the claimant would continue discreet conduct and would not attract adverse attention.

A Zimbabwean citizen claimed asylum on the basis of his homosexuality, alleging societal and state hostility and fearing persecution from his stepfather and ZANU activists. An adjudicator rejected his factual account and dismissed his Refugee Convention and ECHR claims.

The IAT’s November 2001 determination was reversed on an earlier appeal to the Court of Appeal, reported at [2002] Imm AR 560, and the case was remitted. On rehearing in April 2003, the IAT admitted expert evidence but upheld the adverse factual findings. It concluded that the claimant could conduct his relationship discreetly without a real risk of serious harm. On further appeal, he relied principally on Appellant S395/2002 v Minister for Immigration [2003] HCA 71. The central issue was whether the IAT had imposed an impermissible requirement of self-denial or had made findings properly open on the evidence.

Appeal dismissed with costs; leave to appeal to the House of Lords refused. Buxton LJ gave the principal judgment. Jacob LJ agreed and added a separate observation.

1. Meaning and threshold of persecution. Persecution is a strong concept. The description of persecution as a sustained or systemic failure of state protection concerning a core entitlement does not encompass every minor interference with a core human right. The Refugee Convention requires a real risk of serious harm. Simple deprivation of rights is insufficient. The intensity or duration of the harm must be such that the claimant could not reasonably be expected to tolerate it. This was consistent with R(Ullah) v Special Adjudicator [2004] 2 AC 323, Sepet v SSHD [2003] 1 WLR 856 and Refugee Appeal No 74665/03.
2. No requirement of self-denial. Appellant S395/2002 v Minister for Immigration [2003] HCA 71 did not introduce a new rule into English refugee law. Following Ahmed v SSHD [2000] INLR 1 and Danian v SSHD [1999] INLR 533, asylum cannot be refused merely because a claimant could avoid otherwise persecutory conduct by modifying their behaviour. That principle applies only where the resulting restraint or condition is itself sufficiently serious to amount to persecution.
3. Application to the evidence. The IAT did not require the claimant to conceal his homosexuality. It found that he would continue his chosen discreet conduct and that this had not previously attracted serious difficulty or adverse attention. The proposed alternative case, that he intended to live openly with D and would thereby face persecution, lacked adequate evidence. Unsupported assertions in legal submissions, allegations already rejected by the adjudicator and general evidence of hostility did not establish the required risk.
4. ECHR claims. Reliance on Article 3 was expressly disclaimed. The Article 8 claim was not pressed. In any event, the high threshold described in R(Razgar) v Home Secretary [2004] 2 AC 368 and the absence of a sufficient factual basis meant that the claim could not succeed.

Jacob LJ added that the claim contained a further contradiction: asylum in the United Kingdom could not secure a right to live with D in Zimbabwe, and there was no evidence that D could or wished to leave Zimbabwe.

• Court of Appeal (Civil Division): Dismissed the present appeal with costs and refused leave to appeal to the House of Lords.
• Immigration Appeal Tribunal: On rehearing in April 2003, upheld the adjudicator’s adverse factual findings and rejected the Refugee Convention and ECHR claims.
• Court of Appeal (earlier appeal): Reversed the IAT’s November 2001 determination and remitted the case for rehearing on Refugee Convention and ECHR grounds; reported at [2002] Imm AR 560.
• Adjudicator: Rejected the claimant’s account of persecution and dismissed his asylum and ECHR claims.