Ms Nazmun Ismail in Supreme Court Success

RT (Zimbabwe) and others (Respondents) v Secretary of State for the Home Department (Appellant)
KM (Zimbabwe) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2012] UKSC 38.

Ms Nazmun Ismail of Central Chambers in Supreme Court Success Court heard the appeal of “KM” and handed down judgement on 25 July 2012. The Supreme Court allowed his appeal.
In a landmark decision which was heard by seven Justices of the Supreme Court, the highest court in the land has blocked the British Government’s efforts to remove the Appellant from the United Kingdom.
Nazmun Ismail was led by Mr Ian Dove QC.

The Appellant (referred to as “KM”) 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’s son has been accepted to be a genuine refugee by the British Government and he lives in the United Kingdom. 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.

The Supreme Court 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 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 were therefore rejected and the Appellant’s appeal allowed. He will therefore be protected from the risk of persecution in Zimbabwe.

Ms Nazmun Ismail is a founding member of Central Chambers. She is a specialist advocate and specialist in paperwork across a wide range of civil areas of law. She was called to the Bar in 1992 and regularly appears in senior Courts and Tribunals across the country.

Ms Ismail was instructed by Messrs Blakemores Solicitors, Birmingham on this case..

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