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Supreme Court says no lies to achieve safety

In the case of RT (Zimbabwe) v Secretary of State for the Home Department [2012] UKSC 38 the Supreme Court has today held that asylum seekers cannot be expected to lie or dissemble in order to achieve safety in their own country. This principle applies equally to a committed political activist and to a person with no politician convictions: neither can be expected to lie. Judgment here, press summary here.

The leading judgment is delivered by Lord Dyson. He observes at paragraph 32 that established international law protects the right to hold opinions and not to do so as well:

Under both international and European human rights law, 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. The rights to freedom of thought, opinion and expression are proclaimed by articles 18 and 19 of the Universal Declaration of Human Rights 1948. As Lord Hope said in HJ (Iran) at para 15: “The guarantees in the Universal Declaration are fundamental to a proper understanding of the Convention”.

He goes on at paragraph 36:

I can see no basis in principle for treating the right to hold and not to hold political beliefs differently. Article 10 of the ECHR provides that everyone has the right to freedom of expression and that this right “shall include freedom to hold opinions”. That must include the freedom not to hold opinions. As Professor Barendt puts it in Freedom of Speech, OUP, 2005 (2nd ed), p 94:

“The right not to speak, or negative freedom of speech, is closely linked with freedom of belief and conscience and with underlying rights to human dignity, which would be seriously compromised by a legal requirement to enunciate opinions which are not in truth held by the individual.”

Lord Dyson observes that one of the hallmarks of totalitarian regimes is their insistence on controlling people’s thoughts as well as their behaviour and he goes on to use Orwell’s 1984 as an example.

Lastly, the Secretary of State’s attempt to draw a distinction between core and peripheral aspects of rights was again comprehensively rejected, as it was earlier in the Court of Appeal:

There is no support in any of the human rights jurisprudence for a distinction between the conscientious non-believer and the indifferent non- believer, any more than there is support for a distinction between the zealous believer and the marginally committed believer. All are equally entitled to human rights protection and to protection against persecution under the Convention. None of them forfeits these rights because he will feel compelled to lie in order to avoid persecution.

The Supreme Court’s judgment was on appeal by the Home Office from the earlier Court of Appeal judgment of the same name at citation [2010] EWCA Civ 1285. The litigation arises from the Country Guidance case of RN (Zimbabwe) [2008] UKAIT 00083, in which the immigration tribunal held that, in the febrile atmosphere before and following the 2008 elections, any Zimbabwean returned from the UK would have a well founded fear of persecution unless he or she could prove loyalty to the ZANU-PF party. That guidance case was subsequently replaced by EM (Zimbabwe) [2011] UKUT 98 (IAC), which was markedly less generous to asylum claimants and rendered the judicial learning in the present case rather redundant. Only a few weeks ago, though, EM (Zimbabwe) was overturned in the Court of Appeal. As previously discussed on the blog (and now confirmed by the Supreme Court at paragraphs 2 and 3 of the RT judgment), that means that we are back to the guidance in RN (Zimbabwe) and the Supreme Court’s judgment is therefore of practical as well as legal significance. Almost no asylum seekers from Zimbabwe will be returnable under this ruling.

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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