RT (Zimbabwe) and others v Secretary of State for the Home Department

Refugee protection cannot be refused because an applicant could avoid persecution by concealing a protected belief or characteristic, or by pretending loyalty to a persecutory regime. The Refugee Convention protects the fundamental freedom not to hold or express a political opinion. Protection does not depend on whether political neutrality reflects conscientious commitment or mere indifference.

For persecution based on imputed political opinion, the persecutor’s perception is decisive. A claim succeeds where there is a real and substantial risk that an applicant’s neutrality will be discovered or that professed loyalty will be disbelieved. The assessment must consider both the likelihood of interrogation and whether the applicant could demonstrate loyalty convincingly.

Four Zimbabwean asylum claims raised the consequences of country guidance that persons unable to demonstrate loyalty to Zanu-PF risked persecution on account of imputed political opinion. The claimants lacked a material political profile and might have had to profess false loyalty to avoid ill-treatment.

In the cases of RT, SM and AM, the Court of Appeal allowed their appeals in [2010] EWCA Civ 1285. It upheld RT’s asylum claim and remitted the claims of SM and AM to the Upper Tribunal. The Secretary of State appealed. In KM’s case, the Court of Appeal allowed his appeal but ordered a remittal in [2011] EWCA Civ 275. KM appealed against that form of disposal.

The central questions were whether the principle in HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596 protected a politically neutral person compelled to feign support for a regime, and how the risk of imputed political opinion should be assessed under RN (Returnees) Zimbabwe CG [2008] UKAIT 00083.

1. Disposition. Lord Dyson delivered the leading judgment, with which Lord Hope, Lady Hale, Lord Clarke, Lord Wilson and Lord Reed agreed. Lord Kerr agreed entirely. The Secretary of State’s appeals in the cases of RT, SM and AM were dismissed, and KM’s appeal was allowed.

2. The Convention grounds form no hierarchy of protection. The principle in HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596 therefore applies to political opinion. An applicant cannot be denied refugee protection on the ground that persecution could be avoided by concealing a political belief or by falsely professing loyalty to the persecutor.

3. The freedom not to hold or express a political opinion is itself a fundamental right protected by the Refugee Convention. Its protection does not depend on whether neutrality is a conscientious conviction or a matter of indifference. Measuring protection by the strength of an applicant’s personal commitment would be unprincipled, unworkable and analogous to the rejected “reasonably tolerable” approach in HJ (Iran). The “core/marginal” distinction instead concerns whether the activity restricted falls within the essential scope of the protected right and whether the resulting harm amounts to persecution.

4. Persecution may arise from an opinion imputed to an applicant who does not actually hold it. The persecutor’s perspective is determinative. The applicant need prove only a real and substantial risk, or reasonable degree of likelihood, of persecution for a Convention reason. Where false loyalty might be professed, the decision-maker must consider whether the applicant is likely to encounter serious interrogation and, if so, whether that professed loyalty would be disbelieved.

5. Applying RN (Returnees) Zimbabwe CG [2008] UKAIT 00083, politically neutral returnees outside a milieu where loyalty was assumed were likely to face a real and substantial risk that their neutrality would be discovered. Credibility findings concerning earlier accounts did not determine that objective risk. RT’s recognised asylum claim therefore stood. The remittals of SM’s and AM’s claims stood because further findings remained necessary. KM’s case was exceptionally strong in light of the accepted risk that his son’s asylum status and MDC sympathies would become known; it would be unjust to require a third Tribunal hearing, so his appeal was allowed without remittal.

1. United Kingdom Supreme Court: In [2012] UKSC 38, the court unanimously dismissed the Secretary of State’s appeals concerning RT, SM and AM. It allowed KM’s appeal and displaced the further remittal.
2. Court of Appeal—RT, SM and AM: In [2010] EWCA Civ 1285, the court allowed all three appeals. It upheld RT’s asylum claim and remitted the claims of SM and AM to the Upper Tribunal.
3. Court of Appeal—KM: In [2011] EWCA Civ 275, the court allowed KM’s appeal but remitted his claim to the Upper Tribunal for redetermination.
4. Tribunals: The asylum claims had been dismissed by the Asylum and Immigration Tribunal or, following reconsideration, by the Upper Tribunal.