Sat, 28 Jul 2012
The Supreme Court heard the appeal of a refugee claimant and handed down judgement on 25 July 2012 in the case of KM v Secretary of State for the Home Department  UKSC 38.
KM had argued that the regime in Zimbabwe carries out a campaign of persecution perpetrated by undisciplined militias who have delivered a quite astonishingly brutal wave of violence to whole communities thought to bear responsibility for the ‘wrong’ outcome of the elections against President Mugabe. Those risks included anyone who could not demonstrate positive support for Zanu-PF or alignment with the regime. The Supreme Court noted that in deploying the militia gangs, the President Mugabe regime unleashed against its own citizens a vicious campaign of violence, murder, destruction, rape and displacement.
The Supreme Court unanimously held that there are no hierarchies of protection amongst the Refugee Convention reasons for persecution. The Court said that the Convention affords no less protection to the right to express political opinion openly than it does to the right to live openly in terms of sexuality. 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. It is clear that the HJ (Iran) principle applies to any person who has political beliefs and is obliged to conceal them in order to avoid the persecution that he would suffer if he were to reveal them. The right to freedom of thought, opinion and expression protects non-believers as well as believers and extends to the freedom not to hold and not to have to express opinions. There is no basis in principle for treating the right to hold and not to hold political beliefs differently from religious ones. There can also be no distinction between a person who is a committed political neutral and one who has given no thought to political matters. It was also said that it is not in doubt that an individual may be at risk of persecution on the grounds of imputed political opinion and that it is nothing to the point that he does not in fact hold that opinion. Persecution on the grounds of imputed opinion will occur if a declared political neutral is treated by the regime as a supporter of its opponents and persecuted on that account. Importantly the Court held that a claim may also succeed if it is shown that there is a real and substantial risk that, despite the fact that the asylum seeker would assert support for the regime, he would be disbelieved and his neutrality would be discovered.
The Supreme Court, sitting as a seven judge Court, unanimously allowed the appeal of KM. This case has therefore significantly extended the Refugee Convention to new grounds whereby those that have no political opinion can also seek protection based on this international legal instrument.
The Supreme Court had said in its judgement:
"As regards the point of principle, it is the badge of a truly democratic society that individuals should be free not to hold opinions. They should not be required to hold any particular religious or political beliefs. This is as important as the freedom to hold and (within certain defined limits) to express such beliefs as they do hold. One of the hallmarks of totalitarian regimes is their insistence on controlling people’s thoughts as well as their behaviour. George Orwell captured the point brilliantly by his creation of the sinister “Thought Police” in his novel 1984.
The idea “if you are not with us, you are against us” pervades the thinking of dictators. From their perspective, there is no real difference between neutrality and opposition
In the extreme, repressive and anarchic conditions which obtain in Zimbabwe, the risk of being persecuted is all too real and predictable, albeit, on the evidence currently available, the incidence of that persecution is likely to be both random and arbitrary.
As a general proposition, the denial of refugee protection on the basis that the person who is liable to be the victim of persecution can avoid it by engaging in mendacity is one that this court should find deeply unattractive, if not indeed totally offensive. Even more unattractive and offensive is the suggestion that a person who would otherwise suffer persecution should be required to take steps to evade it by fabricating a loyalty, which he or she did not hold, to a brutal and despotic regime.
As a matter of fundamental principle, refusal of refugee status should not be countenanced where the basis on which that otherwise undeniable status is not accorded is a requirement that the person who claims it should engage in dissimulation. This is especially so in the case of a pernicious and openly oppressive regime such as exists in Zimbabwe. But it is also entirely objectionable on purely practical grounds. The intellectual exercise (if it can be so described) of assessing whether (i) a person would - and could reasonably be expected to – lie; and (ii) whether that dissembling could be expected to succeed, is not only artificial, it is entirely unreal. To attempt to predict whether an individual on any given day, could convince a group of undisciplined and unpredictable militia of the fervour of his or her support for Zanu-PF is an impossible exercise."
Ian Dove QC is Deputy Head of Chambers and sits as a Deputy High Court Judge. He is also a Recorder and an Immigration Judge. Abid Mahmood is the Head of the Immigration Group at No5 Chambers and is a Recorder of the County Court and an Immigration Judge. Nazmun Ismail is an Associate Tenant at No5 Chambers and has appeared in numerous Court of Appeal and higher court appeals in recent years. They all appeared on behalf of KM and were instructed by Blakemores Solicitors, Birmingham.
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Nazmun Ismail (1992) is an associate tenant at No5 Chambers.