Supreme Court extends HJ (Iran) principle to political asylum seekers
Asylum can be granted to a person who does not hold a political belief where this could lead to persecution, the Supreme Court has ruled in a case that potentially affects thousands of Zimbabwean refugees.
In KM (Zimbabwe) v Secretary of State for the Home Department [2012] UKSC 38, seven justices considered whether asylum seekers without any particular political opinions should be required to lie and feign support for the Zanu-pf regime of President Robert Mugabe in order to avoid persecution.
The appellant, KM’s son, had previously been granted asylum in the UK on the grounds he was a sympathiser of the opposing party, the Movement for Democratic Change (MDC), and feared for his life from the Zanu-pf militia.
The secretary of state argued that KM could avoid persecution by lying about his views and pretending to support Mugabe.
However, the court unanimously allowed KM’s appeal to stay in the UK, and found that the HJ (Iran) principle, which concerns sexual orientation, also applies to asylum seekers who fear persecution due to a lack of political belief. In HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596, it was held that a gay man cannot be expected to conceal his sexual identity in order to avoid persecution.
Delivering judgment in KM, Lord Dyson noted that the main risk of persecution lay in the activities of militia gangs and war veterans at roadblocks who ask people to produce a Zanu-pf card or sing the latest campaign songs. Inability to do so could result in “violence, murder, destruction, rape and displacement”.
“The Convention affords no less protection to the right to express political opinion openly than it does to the right to live openly as a homosexual,” he said.
“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.”
James Howard, partner at Blakemores, who represented KM, says: “After a lengthy legal challenge, the Supreme Court has recognised the importance of protecting the freedoms of both holding and not holding political opinions. This judgment re-enforces the HJ (Iran) principle and will have widespread application. It brings further force to those fundamental freedoms that are protected by the Refugee Convention and international law.”
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