RT (Zimbabwe) and Others v Secretary of State for the Home Department [Sup Ct]

JurisdictionEngland & Wales
JudgeLORD DYSON,LORD HOPE,LADY HALE,LORD CLARKE,LORD WILSON,LORD REED,LORD KERR
Judgment Date25 July 2012
Neutral Citation[2012] UKSC 38
CourtSupreme Court
Date25 July 2012
RT (Zimbabwe) and Others
(Respondents)
and
Secretary of State for the Home Department
(Appellant)
KM (Zimbabwe) (FC)
(Appellant)
and
Secretary of State for the Home Department
(Respondent)

[2012] UKSC 38

Before

Lord Hope, Deputy President

Lady Hale

Lord Kerr

Lord Clarke

Lord Dyson

Lord Wilson

Lord Reed

THE SUPREME COURT

Trinity Term

On appeal from: [2010] EWCA Civ 1285; [2011] EWCA Civ 275

Appellant

Jonathan Swift QC

Charles Bourne

Paul Greatorex

(Instructed by Treasury Solicitors)

Appellant

Ian Dove QC

Abid Mahmood

Nazmun Ismail

(Instructed by Blakemores Solicitors)

Intervener (United Nations High Commissioner for Refugees)

Michael Fordham QC

Naina Patel

(Instructed by Baker & McKenzie LLP)

Respondents

Raza Husain QC

Hugo Norton-Taylor

(Instructed by Luqmani Thompson & Partners; Wilson Solicitors LLP)

Respondent

Jonathan Swift QC

Charles Bourne

Paul Greatorex

(Instructed by Treasury Solicitors)

Heard on 18 and 19 June 2012

LORD DYSON (WITH WHOM LORD HOPE, LADY HALE, LORD CLARKE, LORD WILSON AND LORD REED AGREE)

1

Is it an answer to a refugee claim by an individual who has no political views and who therefore does not support the persecutory regime in his home country to say that he would lie and feign loyalty to that regime in order to avoid the persecutory ill-treatment to which he would otherwise be subjected? This is the question of general importance that arises in these appeals which are a sequel to the decision of this court in HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596. In that case, it was held that a gay man was entitled to live freely and openly in accordance with his sexual identity under the Refugee Convention ("the Convention") and it was no answer to the claim for asylum that he would conceal his sexual identity in order to avoid the persecution that would follow if he did not do so. I shall refer to this as "the HJ (Iran) principle".

2

These cases fall to be decided in the light of the latest country guidance for Zimbabwe which is to be found in the decision of the Asylum and Immigration Tribunal ("AIT") in RN (Returnees) Zimbabwe CG [2008] UKAIT 00083 to which I shall have to refer in more detail later. At this stage, it is sufficient to refer to para 216:

"This campaign [of persecution] has been rolled out across the country not by disciplined state forces but by the loose collection of 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 March 2008 poll. It is precisely because of that that any attempt to target specifically those who have chosen to involve themselves with the [Movement for Democratic Change ('MDC')] has been abandoned. In our view, there can be no doubt at all from the evidence now before the Tribunal that those at risk are not simply those who are seen to be supporters of the MDC but anyone who cannot demonstrate positive support for Zanu-PF or alignment with the regime."

3

We were referred to the new country guidance issued by the Upper Tribunal in EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC) which states that the situation in Zimbabwe has significantly changed. But this decision was quashed by the Court of Appeal on 13 June 2012. It is common ground that it is not material to the present appeals.

The facts
4

RT was born on 28 May 1981. She left Zimbabwe legally in February 2002 and arrived in the United Kingdom on 2 March 2002. She was given leave to enter for six months and began to work for a family as a nanny. She overstayed her leave. In 2005, she was refused leave to remain as a student. On 16 February 2009, she claimed asylum. The claim was refused by the Secretary of State and her appeal to the AIT was dismissed on 1 July 2009. IJ Hussain found that she would be able to take any positive steps necessary to show her loyalty to the regime and that there was no real risk of her being subject to ill-treatment on return.

5

Reconsideration was ordered on 8 December 2009. On the reconsideration, RT's appeal was dismissed by the Upper Tribunal on 2 March 2010. DIJ Manuell found that she was a credible witness and that she had never been politically active in Zimbabwe or in the United Kingdom. At para 25 he gave his reasons for concluding that she did not have a well-founded fear of persecution on a Convention ground. Of particular relevance is the finding that she was "in a position to explain that she has never been politically involved at home or abroad, should anyone see fit to enquire".

6

SM was born on 26 September 1982. She left Zimbabwe in April 2008 using a passport issued in another name and claimed asylum in the United Kingdom on 1 May 2008. Following refusal of her claim in November 2008, she appealed to the AIT. Her appeal was dismissed on 29 January 2009. IJ Lawrence found that she was not a credible witness, had given inconsistent accounts of her involvement with the MDC and had lied in a number of other respects. On 17 June 2009, reconsideration was ordered on the single issue of whether SM would be at risk on return in view of the decision in RN. Her appeal was dismissed by IJ Charlton-Brown on 3 November 2009. She too found that SM was not a credible witness. She said that SM had no connections with the MDC and that, although her mother had left Zimbabwe in 2002 and had been recognised as a refugee in 2003, she had not had difficulties living in Zimbabwe between 2002 and 2008. On the issue of loyalty to the regime, she said at para 23:

"Finally, in terms of whether or not this appellant can demonstrate positive support for/loyalty to ZANU-PF, it seems clear that she herself has not been linked with the MDC as she has claimed, given her lack of credibility throughout. As previously stated, she appears to have been able to live in Zimbabwe without problems since her mother left the country in 2002 and quite frankly, given this individual's complete lack of credibility and indeed her inclination to lie as and when required, as the original immigration judge pointed out, no doubt she would be prepared to lie again in the future to the authorities on return to Zimbabwe about any political affiliation she might have."

7

AM was born on 16 November 1966. He left Zimbabwe and arrived in the United Kingdom on 25 February 2001 with leave to enter as a visitor. He remained with leave as a student until 30 November 2007. He claimed asylum on 28 April 2009. This was refused. His appeal was dismissed by the AIT on 15 September 2009 and dismissed again (following reconsideration) on 23 March 2010. DIJ Shaerf did not find AM to be a credible witness. Although he was "in favour of the MDC" (para 46), AM had no political profile and was not "politically engaged" prior to his departure from Zimbabwe (para 47). He would be able to account for his absence from Zimbabwe by reference to his studies in the United Kingdom and the breakdown of his marriage whilst he was here. He had returned to Zimbabwe in 2003 without difficulty.

8

RT, SM and AM all appealed to the Court of Appeal. The judgment of the court was given by Carnwath LJ: [2010] EWCA Civ 1285; [2011] Imm AR 259. Their appeals were allowed. The court said at para 36 that if individuals are "forced to lie about their absence of political beliefs, solely in order to avoid persecution, that seems to us to be covered by the HJ (Iran) principle, and does not defeat their claims to asylum". In the case of RT, the court said (para 42) that the Upper Tribunal did not address the critical issue raised by RN since:

"It is not enough that she would be able to 'explain' her lack of political activity abroad. The question is whether she would be forced to lie in order to profess loyalty to the regime, and whether she could prove it. Since she was found to be generally credible, there is no other reason to hold that she has failed to prove her case."

The court allowed RT's appeal and upheld RT's asylum claim.

9

As for SM, at para 46 the court said of para 23 of the decision of the AIT that:

"it was not enough to hold that she would be willing to lie 'as and when required', if the reason for doing so would be to avoid persecution. Nor is willingness to lie the same as ability to prove loyalty to the regime. On the other hand, in view of her lack of credibility overall, it remains open to question whether her case should fail for lack of proof as in [ TM (Zimbabwe) v Secretary of State for the Home Department [2010] EWCA Civ 916]. We will therefore allow the appeal and remit the case to the Upper Tribunal for redetermination."

10

In relation to AM, the court said at para 52:

"As in the first case, the issue was not simply whether the appellant could 'account for' his absence in the UK. The judge failed to address the issue as to his ability to show his loyalty to the regime. Unlike RT, he has not been held to be a credible witness. Accordingly, as in the case of SM, we do not feel able to substitute our own conclusion on this issue. We will therefore allow the appeal and remit the case to the Upper Tribunal."

11

The Secretary of State seeks an order that the decisions of the Tribunal should be restored in all three cases, alternatively that the claims should be remitted for further consideration of the sole issue of whether each claimant would be able to prove loyalty to the regime.

12

KM was born on 5 March 1957. He left Zimbabwe legally and claimed to have arrived in the United Kingdom in January 2003 on a false South African passport. He was given six months' leave to enter as a visitor. He claimed asylum on 20 August 2008 and his claim was refused by the Secretary of State. His appeal was dismissed by the AIT on 1 April 2009. A fact of central importance was that his son had been granted asylum in the United Kingdom because he had a well-founded fear of persecution...

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