The right not to hold any belief is fundamental, says Supreme Court

RT (Zimbabwe) and others (Respondents) v Secretary of State for the Home Department [2012] UKSC 38 - read judgment

It is no answer to a refugee claim to say that the individual concerned should avoid persecution by lying and feigning loyalty to a regime which he does not support.

So the Supreme Court has ruled today, considering the relevance to political beliefs of the so-called “HJ(Iran) principle” which was formulated in a case where it was held that it was no answer to an asylum claim by a gay man that he should conceal his sexual identity in order to avoid the persecution that would follow if he did not do so.

So paranoid is the Mugabe regime that it requires proof of positive support from all its subjects. Zimbabweans who hold no political opinions are at the same risk of persecution as opponents of the regime. Thus the peculiarly negative nature of the issue to be decided – whether the freedom not hold political opinions is at the core or the margin of an individual’s protected rights. Unlike HJ(Iran), this was not a situation  in which a person had to conceal a fundamental and immutable part of his identity at all times (at least when not in private). In these cases, what was contemplated was a situation where a person may on isolated occasions be required to spend a very short amount of time professing a feigned opinion on a matter of politics.

In reaching this conclusion, Lord Dyson made the interesting assertion that there was no basis in principle for treating the right to hold and not to hold political beliefs differently from religious ones. There is no doubt that the right to freedom of religious belief and conscience under Article 9 extends to the right not to hold thoughts or beliefs and not to give expression to them. This provision also constitutes

a precious asset for atheists, agnostics, sceptics and the unconcerned. Kokkinakis v Greece (1993) 17 EHRR 397

There are some who argue that this implied cover for atheists is insufficient and the spread of fundamentalism and related horrors like witchcraft has given rise to such widespread persecution there needs to be express protection for non believers – see my post on this debate. It would appear, from this judgment, that we have edged a little closer to providing an explicit guarantee, under human rights law, for the disavowal of any kind of belief. As South African Constitutional Court judge Albie Sachs said, the right to believe or not to believe is a key ingredient of a person’s dignity. One day we will acknowledge that individual dignity also encompasses the right to live or not to live as well.

In any event, the law now is clear: whether you are an indifferent unbeliever, or a muscular atheist of the Dawkins/Hitchens school, your right to keep the thought police at bay is every bit as fundamental as any of the interests given explicit protection in the Convention.

Background facts

The following is taken from the Supreme Court’s press summary (numbers in square brackets refer to paragraphs in the judgment):

The country guidance for Zimbabwe, applicable in these cases, found that there is 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 March 2008 election. Any attempt to target those who are themselves involved with the Movement for Democratic Change (“MDC”) has been abandoned and those at risk includes anyone who cannot demonstrate positive support for Zanu-PF or alignment with the regime. The means used to establish loyalty include requiring the production of a Zanu-PF card or the singing of the latest Zanu-PF campaign songs. Inability to do these is taken as evidence of disloyalty and therefore support for the opposition. In deploying these militia gangs, the regime unleashed against its own citizens a vicious campaign of violence, murder, destruction, rape and displacement. [2], [15]-[16]

The first appeal concerns RT, SM and AM. They arrived in the UK from Zimbabwe at various times between 2001 and 2008 and have each claimed asylum here. Each of their claims was refused. RT, while credible, had never been politically active. SM was not a credible witness and had given inconsistent accounts of her involvement with the MDC and had lied in a number of respects. On reconsideration it was found that she had no connections with MDC. AM was found not to be a credible witness and although he was in favour of the MDC, he had no political profile and was not politically engaged prior to his departure from Zimbabwe. The Court of Appeal allowed the appeals of RT, SM and AM on the basis that if individuals are forced to lie about their absence of political beliefs, solely in order to avoid persecution, that is covered by the HJ (Iran) principle and does not defeat their claims for asylum. [4]-[10]

The second appeal concerns KM. He claimed to have arrived in the UK in January 2003 on a false South African passport and claimed asylum on 20 August 2008. His claim was refused. While his son had been granted asylum in the UK because he had a well-founded fear of persecution in Zimbabwe on the grounds that he was a sympathiser of the MDC, KM was found by the Tribunal not to have established any adequate factual basis to support his claim that he would be at real risk of finding himself in a position where he would be unable to demonstrate loyalty to the regime. In the Court of Appeal, although the Secretary of State accepted that the appeal should be allowed because it was arguable that adequate consideration had not been given to the assessment of risk, there was an issue between the parties as to whether the case should be allowed outright or sent back to the Tribunal. The Court of Appeal allowed the appeal and sent the case back for further decision. [12]-[14]

Judgment and reasoning

The Supreme Court unanimously dismissed the Home Secretary’s appeals in the cases of RT, SM and AM and allows KM’s appeal. The HJ (Iran) principle applied to applicants who claim asylum on the grounds of a well-founded fear of persecution for reasons of lack of political belief. On the other hand, that principle does not establish the rigid rule that if the individual concerned is forced to lie about their political neutrality or indifference solely in order to avoid persecution, the concealment of their lack of political beliefs would not defeat their claims to asylum.

There are no hierarchies of protection amongst the Refugee Convention reasons for persecution. Thus 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. 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.[25] 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.[26] 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 can be no distinction between a person who is a committed political neutral and one who has given no thought to political matters. [32]-[45]

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. [53] 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. But 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. [55] This gives rise to questions of fact, but it is difficult to see how an asylum claim advanced on the basis of imputed political opinion could be rejected, unless the judge was able to find that the claimant would return to an area where political loyalty would be assumed and where, if he was interrogated, he would not face the difficulties faced by those who were not loyal to the regime in other parts of the country. If the claimant would return to any other parts of the country, the judge would be likely to conclude that there was a real and substantial risk that a politically neutral person who pretended that he was loyal to the regime would be disbelieved and therefore persecuted. [56]-[59]
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