RT (Zimbabwe) & Ors v Secretary of State for the Home Department

Where persecution is imposed because a political opinion is imputed to a claimant, asylum cannot be refused merely because the claimant would be willing to lie by professing political loyalty, or by denying an absence of political belief, in order to avoid that persecution. The claimant’s actual political commitment, and whether political activity is central or marginal to personal identity, do not answer that question.

Country guidance requiring an assessment of whether a returnee can demonstrate loyalty must nevertheless be applied on the individual facts. Enhanced-risk factors create scrutiny but do not alone establish a real risk. Adverse credibility findings may leave insufficient evidence to prove the claim, but willingness to lie or an ability merely to explain an absence from the country does not itself establish an ability to prove loyalty.

Four Zimbabwean nationals appealed against the dismissal of their asylum appeals by the Upper Tribunal and the Asylum and Immigration Tribunal. Their claims were assessed under the country guidance in RN (Zimbabwe) CG [2008] UKAIT 00083.

None had been found to be a committed political opponent of the Zimbabwean regime. They contended, however, that return after an extended absence could expose them to persecution for an imputed political opinion if they could not positively demonstrate loyalty to Zanu-PF. The central issues were whether the guidance had been correctly applied and whether the protection in HJ (Iran) v SSHD [2010] UKSC 31 prevented reliance on a claimant’s willingness to lie about political allegiance to avoid persecution.

1. Appeals allowed in part. The court allowed RT’s appeal and substituted a decision allowing her asylum claim. It allowed the appeals of SM and AM and remitted them to the Upper Tribunal for redetermination. DM’s appeal was dismissed.

2. The protection recognised in HJ (Iran) v SSHD [2010] UKSC 31 applies as much to persecution for political opinion as to persecution for membership of a particular social group. A person who genuinely holds political beliefs cannot be expected to conceal or modify them to avoid persecution. That proposition was not determinative of these appeals because the appellants had not been found to hold significant political beliefs.

3. The same protection extends to persecution for an imputed political opinion. The relevant question is the reason for the threatened ill-treatment, not the claimant’s level of actual political commitment. A claimant’s willingness to lie by professing political loyalty, or by lying about an absence of political beliefs, does not defeat the claim where the lie would be made solely to avoid persecution. The suggested distinction between conduct at the “core” and at the “margin” of identity was not valid in this context.

4. RN (Zimbabwe) CG [2008] UKAIT 00083 remained the applicable country guidance. Its enhanced-risk categories did not automatically establish a real risk, and the claimant retained the burden of proving an inability to demonstrate loyalty to the regime. However, a tribunal had to decide that question. It could not treat a claimant’s ability to account for an absence from Zimbabwe, or a willingness to lie, as a sufficient substitute for deciding whether loyalty could in fact be demonstrated.

5. RT was generally credible and the tribunal had failed to address that decisive issue, so her claim should have succeeded. SM and AM had adverse credibility findings; their cases required fresh fact-finding on whether they could prove loyalty. In DM’s case, the finding that both parents had been long-standing Zanu-PF supporters provided a rational basis for concluding that he and his dependants could demonstrate loyalty.

• Court of Appeal (Civil Division): By this judgment, [2010] EWCA Civ 1285, RT’s appeal was allowed and her asylum claim allowed; SM’s and AM’s appeals were allowed and remitted; DM’s appeal was dismissed.
• Upper Tribunal / Asylum and Immigration Tribunal: RT’s appeal was dismissed by DIJ Manuell on 2 March 2010.
• Upper Tribunal / Asylum and Immigration Tribunal: SM’s appeal was dismissed by IJ Charlton-Brown on 4 November 2009.
• Asylum and Immigration Tribunal: DM’s appeal was initially allowed but, following reconsideration, was dismissed by a panel on 24 November 2009.
• Upper Tribunal / Asylum and Immigration Tribunal: AM’s appeal was dismissed by DIJ Shaerf on 23 March 2010.