Important legal judgments – Zimbabwe/behaviour on return and Afghanistan/children

Supreme Court says no lies to achieve safety Free Movement blog, 25 July 2012

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.

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.

Go to the blogpost here, and read The Guardian‘s coverage of the story here.

KA (Afghanistan) judgment issued

The long awaited Court of Appeal judgment on the linked cases of KA and others was finally issued on 25 July.  The case was looking at the Home Office’s duty to attempt to trace unaccompanied asylum seeking children’s family, in these cases in Afghanistan.  The Home Office’s suggestion that they had discharged this duty by informing minors of the Red Cross’ family tracing service has been rejected, and it was judged that by failing to carry out such a check the Home Office has potentially deprived the applicant of the best evidence with which to prove their case.

While the full implications of the judgment are not yet clear, Counsel Mr. Becket Bedford of No. 5 Chambers, who appeared with Raza Husain QC for KA and separately for five of the other appellants holds the view that “all failed unaccompanied asylum seeking children asylum and protection claims need reconsideration”.  Updates to follow as we receive them!