Supreme Court Recognises Rights of 'Apolitical' Asylum Seekers
London, UK, 25 July 2012 – Leading international law firm Baker & McKenzie represented the London office of the United Nations High Commissioner for Refugees (UNHCR) in a Supreme Court case that has important implications for 'apolitical' asylum seekers in the UK. In its judgment, handed down today, the Supreme Court recognised the rights of asylum seekers who have a 'well-founded fear of persecution' due to their inability to prove active political support for regimes in their home country.
The judgment concerned the cases of RT, SM, AM
, three political asylum seekers from Zimbabwe who had shown no political affiliation to either the ruling party Zanu-PF or the opposition party, the Movement for Democratic Change ("MDC"). Their asylum claims were rejected by the UK Border Agency between 2008 and 2009 based on the argument that asylum should not be given to individuals who could avoid persecution by feigning loyalty to the regime when challenged.
Baker & McKenzie Dispute Resolution Associate Richard Allen who ran the case commented: "This judgment is significant in its own right, but could also have an impact beyond Zimbabwean asylum seekers. It illustrates the UK Supreme Court's willingness to embrace an inclusive interpretation of the Refugee Convention, in line with the authors' intentions. It provides helpful clarification of the principles set out in HJ (Iran)
and will hopefully afford some comfort to the many victims throughout the world of brutal and repressive regimes."
In reaching its decision the Supreme Court drew on the legal principles set out in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department
in 2010, in which Baker & McKenzie also represented the London office of UNHCR (click here
). It was common ground that these principles would apply to a person who has political beliefs and is obliged to conceal them in order to avoid persecution if they were revealed. However, the Secretary of State disagreed that this should be applied to those who were politically indifferent or disinterested.
In its judgment, the Supreme Court held that there should be no distinction between a person who is a conscientious and committed political neutral and one to whom neutrality is a matter of indifference. Both are protected from persecution by the 1951 Refugee Convention, since - regardless of how important political neutrality may be to a particular individual - the right not to hold a belief is a fundamental right.
A key factual issue in these appeals was whether RT, SM, AM
, despite having no political beliefs, faced a real risk of persecution in Zimbabwe on the grounds that they would be perceived to be supporters of the MDC. The Supreme Court found it difficult to see how an asylum claim advanced on the basis of imputed political opinion could be rejected, unless the judge was confident that the claimant would return to a milieu where political loyalty would be assumed.
UNHCR supervises the operation of the 1951 Refugee Convention. It participated in the appeals to the Supreme Court as an Intervener. Baker & McKenzie has previously acted for UNHCR in a number of other Courts and tribunals, including the Upper Tribunal of the Immigration and Asylum Chamber, the Court of Appeal, the House of Lords, the Court of Justice of the European Union and the European Court of Human Rights
The Baker & McKenzie team, which acted on a pro bono basis, comprised lawyers from the Dispute Resolution and Pensions Department including Associate Richard Allen, who coordinated Baker & McKenzie's participation, with support from Partner Tom Cassels, Associates Francesca Richmond and Richard Davies, and Trainee Anjuli Patel. Counsel for UNHCR were Mike Fordham QC and Naina Patel of Blackstone Chambers, also acting on a pro bono basis.
RT, SM and AM were represented by Raza Husain QC (Matrix Chambers), Hugo Norton-Taylor (36 Bedford Row) and Luqmani, Thompson & Partners. The Secretary of State was represented by Jonathan Swift QC (11 King's Bench Walk), Charles Bourne (4-5 Gray's Inn Square) and Treasury Solicitors.
Baker & McKenzie has an active pro bono programme and the London Office’s pro bono commitments cover a broad range of causes and organisations, reflecting the diverse interests of our people.