Plainly the ratio of HJ is not limited just to sexual orientation cases but will apply to all grounds covered by the Convention.

I thought it might be interesting to start with that quotation from the paragraph 38 of TM (Zimbabwe) & Ors v Secretary of State for the Home Department [2010] EWCA Civ 916, the new Court of Appeal case on the return of asylum seekers to Zimbabwe. Clearly, the effect of HJ (Iran) and HT (Cameroon) will go far beyond homosexual cases. However, this is not the case that starts to push any boundaries. The judgment continues:

…there is a good case for saying that where the activity which would create the risk of persecution is the need to deny disloyalty to a political party by someone whose political interests or activities are of marginal interest to their lives, this engages only the margins of their human rights and the AIT would be entitled to conclude that they would in fact be, and could be expected to be, less than frank with the Zimbabwean authorities. They would not be required to modify their beliefs or opinions in any real way. It is one thing for a person to be compelled to deny a crucial aspect of his identity affecting his whole way of life, as in HJ. Furthermore, the individual is then forced into a permanent state of denial. The Supreme Court found it unacceptable that someone should have to live a lie in order to avoid persecution. It does not necessarily follow that in no circumstances can someone be expected to tell a lie to avoid that consequence.

However, a determination of this important question will have to await another day. We heard very limited argument on this point, and for reasons I give below, I do not think it is necessary to engage with this submission in order to resolve these appeals.

The suggested approach is obiter dicta but would represent a real compromise of the principled position adopted by the Supreme Court in homosexual cases. It is true, though, I suppose that a person cannot just be a bit gay whereas he or she can be a bit political.

Anyway, this new TM (Zimbabwe) case represents a step back from attempts at the Court of Appeal equivalent of country guideline cases and deals very much with the facts of the individual appellants. All three appeals were dismissed.

In so doing, though, the Lord Justice Elias refuses to go behind RN (Zimbabwe), which remains good (pseudo-)law and is still considered binding, even by the Court of Appeal. He comments that it is unsatisfactory that the court is so constrained, but accepts that it is. Many immigration judges and even senior immigration judges have not felt similar bound, for some reason.

The appeals fail on their facts and on the law of appeals. No errors of law are discerned in the tribunal determinations, which are held to have sufficiently addressed the impact of RN. The sur place activity of the appellants was not held by the tribunal to be sufficient to place them at risk, and the Court of Appeal detects no error there.

Maybe I should create a tribunal upheld category to accompany tribunal overturned again?