Kan je een politiek vluchteling zijn omdat je niet politiek actief wilt zijn? (Engelse uitspraak)

Enige weken geleden boog het hoogste Engelse gerechtshof zich over de vraag of iemand gevaar kon lopen bij terugkeer naar Zimbabwe omdat hij niet actief mee wilde doen in de pro-president activiteiten daar. Het werd een dagenlange zitting die kon worden gevolgd op internet en waar de centrale vraag was waartegen nou het Vluchtelingenverdrag bescherming biedt.

Asylum seekers should not have to feign political beliefs, court rules

Extradition appeal by home secretary dismissed because of campaign of persecution against political neutrals in Zimbabwe

Supporters of Zimbabwe's ruling party Zanu-PF. Photograph: Alexander Joe/AFP/Getty Images

Owen Bowcott, legal affairs correspondent 

 

Asylum seekers should not be expected or required to lie about their political beliefs, the supreme court has ruled in a decision likely to make it more difficult to deport asylum seekers to Zimbabwe.

In a unanimous judgment the court dismissed an appeal by the home secretary, citing a campaign of persecution by "undisciplined militias" against those who do not profess active support for president Mugabe's Zanu-PF party.

The complex ruling by seven justices says that the right not to hold political opinions should be protected by the 1951 Refugee Convention in the same way as the right to hold religious views or other beliefs. In a truly democratic society, Lord Dyson explained, individuals should be free not to hold opinions.

The Home Office had attempted to deport several asylum seekers, identified by the court only as RT and KM, to Zimbabwe on the grounds that they would not be in danger if returned. They had not been members of the opposition Movement for Democratic Change or active opponents of the government.

The Immigration and Asylum Tribiunal's country guidance for Zimbabwe, the court noted, acknowledges 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".

Anyone who cannot demonstrate positive support for Zanu-PF or alignment with the regime is at risk. "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," the court accepted.

In its judgment, the supreme court said: "There are no hierarchies of protection amongst the Refugee Convention reasons for persecution. Thus the Convention [to which the UK is signatory] 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 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 is no basis in principle for treating the right to hold and not to hold political beliefs differently from religious ones. There can also be no distinction between a person who is a committed political neutral and one who has given no thought to political matters.

"... Persecution on the grounds of imputed opinion will occur [in Zimbabwe] if a declared political neutral is treated by the regime as a supporter of its opponents and persecuted on that account."

Expanding on the principle, Lord Dyson noted: "It can therefore be seen that under both international and European human rights law, 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 express opinions...

"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. The idea 'if you are not with us, you are against us' pervades the thinking of dictators."

Responding to the decision, a Home Office spokesperson said: "We are disappointed at the outcome of this appeal. We are still considering the full implications of the judgment but we will continue to consider each asylum claim on its own merits.

"We remain committed to granting asylum to those who need it and ensuring that those who do not return to their own country."

Bron: http://m.guardian.co.uk/ms/p/gnm/op/view.m?id=15&gid=/law/2012/jul/25/asylum-seekers-political-beliefs&cat=law#.UA_qeei3wt8.twitter

Supreme Court says no lies to achieve safety

By Colin Yeo On 25 July 2012 · 2 Comments · In Asylum, Cases, Supreme Court

In the case of RT (Zimbabwe) v Secretary of State for the Home Department [2012] UKSC 38 the Supreme Court has today held that asylum seekers cannot be expected to lie or dissemble in order to achieve safety in their own country. This principle applies equally to a committed political activist and to a person with no politician convictions: neither can be expected to lie. Judgment here, press summary here.
The leading judgment is delivered by Lord Dyson. The observes at paragraph 36 that established international law protects the right to hold opinions and not to do so as well:

Under both international and European human rights law, 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. The rights to freedom of thought, opinion and expression are proclaimed by articles 18 and 19 of the Universal Declaration of Human Rights 1948. As Lord Hope said in HJ (Iran) at para 15: “The guarantees in the Universal Declaration are fundamental to a proper understanding of the Convention”.

He goes on at paragraph 36:

I can see no basis in principle for treating the right to hold and not to hold political beliefs differently. Article 10 of the ECHR provides that everyone has the right to freedom of expression and that this right “shall include freedom to hold opinions”. That must include the freedom not to hold opinions. As Professor Barendt puts it in Freedom of Speech, OUP, 2005 (2nd ed), p 94:

“The right not to speak, or negative freedom of speech, is closely linked with freedom of belief and conscience and with underlying rights to human dignity, which would be seriously compromised by a legal requirement to enunciate opinions which are not in truth held by the individual.”

Lord Dyson observes that one of the hallmarks of totalitarian regimes is their insistence on controlling people’s thoughts as well as their behaviour and he goes on to use Orwell’s 1984 as an example.
Lastly, the Secretary of State’s attempt to draw a distinction between core and peripheral aspects of rights was again comprehensively rejected, as it was earlier in the Court of Appeal:

There is no support in any of the human rights jurisprudence for a distinction between the conscientious non-believer and the indifferent non- believer, any more than there is support for a distinction between the zealous believer and the marginally committed believer. All are equally entitled to human rights protection and to protection against persecution under the Convention. None of them forfeits these rights because he will feel compelled to lie in order to avoid persecution.

The Supreme Court’s judgment was on appeal by the Home Office from the earlier Court of Appeal judgment of the same name at citation [2010] EWCA Civ 1285. The litigation arises from the Country Guidance case of RN (Zimbabwe) [2008] UKAIT 00083, in which the immigration tribunal held that, in the febrile atmosphere before and following the 2008 elections, any Zimbabwean returned from the UK would have a well founded fear of persecution unless he or she could prove loyalty to the ZANU-PF party. That guidance case was subsequently replaced by EM (Zimbabwe) [2011] UKUT 98 (IAC), which was markedly less generous to asylum claimants and rendered the judicial learning in the present case rather redundant. Only a few weeks ago, though, EM (Zimbabwe) was overturned in the Court of Appeal. As previously discussed on the blog (and now confirmed by the Supreme Court at paragraphs 2 and 3 of the RT judgment), that means that we are back to the guidance in RN (Zimbabwe) and the Supreme Court’s judgment is therefore of practical as well as legal significance. Almost no asylum seekers from Zimbabwe will be returnable under this ruling.

Bron: http://www.freemovement.org.uk/2012/07/25/supreme-court-says-no-lies-to-achieve-safety/

Voor ons Nederlanders is deze uitspraak op Raad van State niveau interessant omdat het ook behandelt in hoeverre iemand onder het maaiveld moet blijven om veilig te zijn. De uitspraak staat hier: http://www.supremecourt.gov.uk/docs/UKSC_2011_0011_Judgment.pdf



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