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Immigration Solicitors

Zimbabwe: Who can or should have to demonstrate loyalty and avoid persecution? (11 October 2010)

Date: 11/10/2010
Duncan Lewis, Immigration Solicitors, Zimbabwe: Who can or should have to demonstrate loyalty and avoid persecution?

By Brian Naumann

It is already established principle after the Supreme Court ruled in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department1 that no person should be expected to modify their behavior in order to avoid persecution. Although that particular appeal concerned the right of homosexuals in Iran and Cameroon not to be required to hide their sexuality, could the same principle be applied to political refugees who claim a right not to be expected to demonstrate a particular political opinion? It may be that when the Court of Appeal hears the appeals of AM2, RT3, SM4, and DM5 on 20th October, the issue will not be so clear cut. It was suggested in the recent case of TM, KM, and LZ (Zimbabwe)6 by Lord Justice Elias7 that it might be reasonable to expect an Appellant to demonstrate (fake) loyalty if he did not have strong political convictions himself. He states that there are degrees of political opinion, and it would be reasonable to expect an individual who has no opinion, or whose opinion is not important to him to, to fake loyalty. This proposition however, is in the author’s opinion arguably incompatible with the idea of imputed political opinion, on which a legitimate claim for asylum can be made.

Permission to appeal to the Court of Appeal has been granted in the case of MM8 (Zimbabwe) in which Duncan Lewis will seek to put forward these very same points. In MM’s case, the Immigration Judge hearing the appeal made the specific finding that the Appellant was not a member of any political party and nor was he politically active at any time during his stay in Zimbabwe. Although allowed initially, on reconsideration the senior immigration judge overturned the decision on the basis that the Appellant should be expected to demonstrate loyalty. We are challenging this finding.

At present the judiciary appears to be very quick to rule that an Appellant will be able to demonstrate loyalty to the regime on the basis of a complete adverse credibility finding. The justification for this comes from Paragraph 246 of RN (Zimbabwe)9 which states ‘An appellant who has been found not to be a witness of truth in respect of the factual basis of his claim will not be assumed to be truthful about his inability to demonstrate loyalty to the regime simply because he asserts that.‘ This would appear at first glance to confer upon the courts the ability to make a presumption that an Appellant can demonstrate loyalty if they lie about the substance of their claim. It doesn’t.

Unfortunately, the courts seem to think that it does. In the first and upper tier tribunals, where there is an adverse credibility finding, the courts are consistently failing to consider the objective risk factors that are set out in the RN decision. For example, it may be that an Immigration Judge is unable to believe a single word that an Appellant has said, but it may at the same time be agreed and objectively verifiable that the Appellant has been in the UK for a significant period of time and has accordingly not been able to vote in any elections. It may also be accepted that the Appellant comes from an MDC stronghold10. Many judges are not looking at the agreed facts in appeals and their relevance in assessing an Appellant’s ability to demonstrate loyalty as required. As such there are many appealable Zimbabwean decisions which can and should be taken further. At present Duncan Lewis has two other Zimbabwean appeals being brought to the court of appeal on the same basis, namely CP11 and JM12 the latter having been granted funding for an oral permission hearing which will be heard next month.

Immigration Judges must consider all factors, notwithstanding any unfavorable credibility findings in order to make firm conclusions on whether or not someone can effectively demonstrate loyalty. Does that include the ability to ‘fake it’? We’ll find out soon.

References

1 [2010] UKSC 31
2 2010 1175
3 2010 1220
4 2010 0240
5 2010 1535
6 [2010] EWCA Civ 916
7 Paragraphs 39-41
8 2010 1534
9 (Returnees) CG [2008] UKAIT 00083
10 As in the appeal of MM
11 2010 2231
12 2010 1391




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