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The false omniscience of the internet age
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In the case of HJ (Iran)  1 AC 596 (post here) the Supreme Court held that self oppression can be persecution. To put it another way, being forced to conceal a Convention reason protected characteristic (sexuality, political opinion, religious faith and so on) would itself be persecutory. This self oppression would extend to conforming to laws that require one to suppress one’s political opinion or religious identity and following RT (Zimbabwe)  UKSC 38 (post here) we now know that it extends to being forced to feign loyalty or express an opinion one does not hold.
Like a self denying ordinance, though, HJ Iran creates a profound evidential problem for exactly those refugees who might benefit from it. The first of the questions posed by the late Lord Rodger in his guidance in HJ Iran was whether the evidence demonstrates that the group to which the person belongs does suffer persecution if open about its identity. But if that group is concealing its identity or conforming to discriminatory laws constraining its identity, there may well be few if any reports of persecution. The low number of reported incidents could be proof of the very effectiveness of the persecution, rather than proof that persecution does not generally take place.
The problem is all the more severe in a world of incomplete country information. Gone are the days when we used to use Lonely Planet guidebooks and dog eared hard copies of the US Department of State annual reports as the only information that was available in asylum cases. The internet imbues us with dangerously false omniscience. We think we know everything that is going on everywhere but in reality we cannot and do not. How would reports of incidents in rural Sri Lanka or Pakistan or Iran reach the internet? How will we know what is going on in stinking prisons if visitors are not allowed? Human Rights Watch, Amnesty International and the like rely on a small number of researchers and cannot possibly be comprehensive, nor do they hold themselves out as being so. Yet all lawyers are trained to think that courts reach a ‘true’ decision that establishes the real ‘facts’. Immigration judges have been led to believe by the embarrassment of information with which we present them that they can make definitive judgments. The Country Guidance practice direction recently endorsed by the Court of Appeal is akin to the doctrine of Papal infallibility.
That absence of reports of persecution might be proof of persecution is not an especially radical proposition. In the influential United States case of Kazemzadeh v Attorney General (11 Circuit, 6 August 2009) the majority held that having to practice religion underground to avoid punishment is itself a form of persecution. Punishment might well be rare, but that might be because adherents practice undergrounds and suffer that form of persecution to avoid detection and punishment.
These issues were ventilated in a recent seven day Country Guidance case on the Ahmadi community in Pakistan in which I and my colleague Shivani Jegarajah acted alongside Manjit Gill QC and David Lemer. A determination is keenly awaited and could arrive any day now. No matter the outcome, though, HJ Iran and RT Zimbabwe require that the tribunal reconsider previous Country Guidance on many religious minorities around the world — Bahais in Iran and Christians in Pakistan, for example — and on politically repressive regimes that require the loyalty of citizens, such as Eritrea, Iran, Syria and North Korea. In launching on that reconsideration, it is important to recall that country information is always incomplete.
In RT Zimbabwe Lord Dyson drew on Orwell’s 1984. In Oceania there are no press reports of persecution.
Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.
Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.