UK: Court of Appeal rules on persecution based on imputed political opinion

Date: 
Tuesday, July 12, 2016

On 12 June 2016, the Court of Appeal ruled on the issue of persecution based on imputed political opinion in Secretary of State for the Home Department v MSM (Somalia) and UNHCR (Intervener).
 
The case concerned a Somali national, who had worked as a journalist for a radio station. He unsuccessfully applied for international protection based on the ground that as a journalist he had a well-founded fear of persecution if returned. The Upper Tribunal conversely found that the applicant would face persecution in the event of return on the basis of his political opinion. The Secretary of State appealed to the Court of Appeal.
 
The Court of Appeal agreed to consider two distinct issues. First, the Court considered whether the Upper Tribunal had erred in law by finding that the applicant would fear persecution based on his actual political opinion. The Court dismissed the Secretary of State’s appeal because the Upper Tribunal had in fact made a finding that the applicant’s pursuit of career in journalism involving the expression of political opinion is “at least partially driven by political conviction relating to conditions prevailing in Somalia”. 

Second, the Court agreed exceptionally to consider on an obiter dicta basis, the wider question of whether it would be reasonable for the applicant to modify his behaviour as to avoid risk of attracting an imputed political opinion by not engaging in his chosen career of journalism. The Court held that both the Qualification Directive and the Geneva Convention require the following questions to be answered:

  1. whether the applicant for refugee status faces a well-founded fear of persecution and;
  2. what the reason is for that persecution.

Hence, the same test for refugee status applies to individuals, whose protected characteristic is imputed by the actor of persecution. The Court therefore rejected the State Secretary’s argument that in some cases of imputed political opinion an applicant can be expected to modify his or her behaviour in order to avoid the imputation to him or her of the political opinion which gives rise to the identified risk of persecution


This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.

                                                     

 

Keywords: 
Persecution (acts of)
Persecution Grounds/Reasons
Political Opinion