Asylum-seekers, political opinions and exotically coloured cocktails

Earlier today, the UK Supreme Court gave judgment in RT (Zimbabwe) v Home Secretary. The appellants were challenging the government’s refusal to grant them asylum in the UK. It is well-established that people in Zimbabwe are at a real risk of persecution (and so entitled to asylum) if they are thought to be supporters of the Movement for Democratic Change – the political party that has long opposed Robert Mugabe’s brutal regime and his Zanu-PF party. But the question in this case was whether the appellants were entitled to asylum not because they had supported the MDC – but because they had failed to support Zanu-PF. The appellants would succeed if, in accordance with the United Nations Refugee Convention, the appellants could demonstrate a “well-founded fear of being persecuted” because of their “political opinion”.

So did not supporting Zanu-PF constitute a “political opinion”? Putting the matter another way, the Refugee Convention recognizes a right to hold political opinions – but does this include a right not to hold such an opinion? Yes, said the Supreme Court. Lord Dyson, giving the leading judgment, said that

it is the badge of a truly democratic society that individuals should be free not to hold opinions. They should not be required to hold any particular religious or political beliefs. This is as important as the freedom to hold and (within certain defined limits) to express such beliefs as they do hold. One of the hallmarks of totalitarian regimes is their insistence on controlling people’s thoughts as well as their behaviour. George Orwell captured the point brilliantly by his creation of the sinister  “Thought Police” in his novel 1984.

A further question that arose was whether people (like the appellants) who did not actually hold opinions should be expected to pretend to do so, in order to avoid persecution. Allowing the asylum-seekers’ appeals against the government’s decision to deny them asylum, Lord Kerr (in a concurring judgment) said that

the denial of refugee protection on the basis that the person who is liable to be the victim of persecution can avoid it by engaging in mendacity is one that this  court should find  deeply unattractive, if not indeed totally offensive.  Even more unattractive and offensive is the suggestion that a person who would otherwise suffer persecution should be required to take steps to evade it by fabricating a loyalty, which he or she did not hold, to a brutal and despotic regime.

In reaching these conclusions, the Supreme Court relied in part on an earlier judgment in a case called HJ (Iran) v Home Secretary. There, the question had been whether a gay man could claim asylum on the ground that if he were returned to his native Iran, he would be unable to live openly as a gay man. The court held that he should not required to be any more discreet about his sexuality than a straight man would be. In a memorable passage – rarely do references to “Kylie concerts” feature in Supreme Court judgments – Lord Rogder explained that

what is protected is the applicant’s right to live freely and openly as a gay man. That involves a wide spectrum of conduct, going well beyond conduct designed to attract sexual partners and maintain relationships with them. To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates. Mutatis mutandis—and in many cases the adaptations would obviously be great—the same must apply to other societies. In other words, gay men are to be as free as their straight equivalents in the society concerned to live their lives in the way that is natural to them as gay men, without the fear of persecution.

Lord Rodger’s resort to stereotypes notwithstanding, he makes an important point: that a person at risk of persecution because of his “protected” characteristic under the Refugee Convention (eg sexual orientation or political beliefs) should not be sent home on the ground that he could hide that characteristic. So just as the gay man in HJ (Iran) was not to be denied asylum on the ground that he might be able to conceal his sexuality from the Iranian authorities that were otherwise likely to persecute him, so the asylum-seekers in RT (Zimbabwe) were not to be denied asylum because of a possibility that they might be able to feign support for Mugabe’s regime.

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Image above reproduced under Creative Commons Licence

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