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All previously failed Zimbabwean asylum and protection claims need to be reviewed in light of KM (Zimbabwe)

Written by
Nazmun Ismail
Date of Publication:
25 July 2012

Nazmun Ismail, barrister, Central Chambers Manchester appeared in KM (Zimbabwe) v SSHD [2012] UKSC 38

The Supreme Court handed down judgment in the appeal of KM on 25 July 2012 along with a joined appeal called RT. It deals with issues of general public importance in relation to the Refugee Convention.

The Appellant had contended that there was a real risk of persecution for a Refugee Convention ground because he would have to show positive loyalty to the President Mugabe regime and to the so called "War Veterans" that man road blocks in Zimbabwe.

KM had asserted that he would not be able to get beyond the roadblocks and would not be able to show the positive loyalty which the potential assailants will expect of him. He also asserted he should not be expected to dissemble at such roadblocks so as to avoid persecution because to do so would breach the Refugee Convention. He asserted that the Refugee Convention is there to assist those just like him in such circumstances. He sought an extended reading of the Refugee Convention.

The Supreme Court agreed with KM's submissions and said 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. The Court said that is as important as the freedom to hold and (within certain defined limits) to express such beliefs as they do hold. The Court agreed that one of the hallmarks of totalitarian regimes is their insistence on controlling people's thoughts as well as their behaviour. The Supreme Court cited George Orwell in his novel 1984 "Thought Police".

The idea "if you are not with us, you are against us" pervades the thinking of dictators. From their perspective, there is no real difference between neutrality and opposition.

The Supreme Court noted that in the extreme, repressive and anarchic conditions which obtain in Zimbabwe, the risk of being persecuted is all too real and predictable, albeit, on the evidence currently available, the incidence of that persecution is likely to be both random and arbitrary.

The Supreme Court also agreed with the submissions made on behalf of KM that as a general proposition, 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. The British Government's arguments that sought to refer to "marginal" and "core" human rights were therefore unanimously rejected and the Appellant's appeal was allowed. Lord Dyson referred to this case as being the "sequel" to its judgment in the landmark decision of HJ (Iran) v SSHD.

My view is that all previously failed Zimbabwean asylum and protection claims need to be reviewed in light of this judgment. Indeed I suspect there will be a large number of appeals that will now be revived, not least because the Upper Tribunal's Country Guidance decision in JG (Zimbabwe) (previously referred to as EM (Zimbabwe) was quashed by the Court of Appeal earlier this month too.