Key asylum precedents

The two appellants were gay men from Iran and Cameroon. In both countries same-sex relations are a criminal offence; in Iran they carry the death penalty. The lower courts had reasoned: if the person returns and hides their orientation, the authorities will not notice them — so there is no risk and no need for protection.

The Supreme Court rejected that logic entirely. The Convention exists so that a person can live freely and openly — not “on condition” that they hide the very thing they are persecuted for. Persecution does not stop being persecution because the victim can avoid it by giving up who they are.

The Court set out a step-by-step test (para 82, Lord Rodger). The key step: if the person would conceal their identity because of a fear of persecution — even in part — they have a well-founded fear and are entitled to protection. If they would be discreet only because of family or social pressure, that alone is not enough: social disapproval is not covered by the Convention.

This case is the foundation of all UK asylum claims based on sexual orientation. Its logic was later extended to political beliefs in RT (Zimbabwe).

The appellants were Zimbabwean citizens with no political views. Under the country guidance then in force, regime militias tested loyalty: demanding a Zanu-PF card or knowledge of party songs. Anyone who could not prove loyalty was treated as an enemy. The Home Office argued the appellants were not opposition activists, so they could simply feign loyalty and be safe.

The Supreme Court (seven Justices, unanimous) rejected that approach. Freedom of thought protects non-believers too: the right not to hold and not to express opinions is just as fundamental. There is no distinction between a committed political neutral and someone who has never thought about politics.

The Court also confirmed the imputed-opinion principle: persecution for an opinion the person does not actually hold is still Convention persecution. What matters is the persecutor’s perception, not the victim’s actual views.

For readers from countries where the authorities test loyalty, this is one of the most practically important precedents: silence and forced lies do not “solve the problem” as a matter of law.

The case concerned deportation of “foreign criminals” — non-citizens sentenced to 12 months or more. The law (section 117C of the Nationality, Immigration and Asylum Act 2002) provides an exception: deportation can be avoided if its effect on a qualifying child or partner would be “unduly harsh”.

The Home Office argued: the more serious the offence, the more hardship for the child is “due”. The Supreme Court disagreed: the test looks only at the child. Balancing the offence against the child’s suffering has no place inside this test.

At the same time the Court confirmed the threshold is high. “Unduly harsh” is more than “undesirable” or “merely difficult” (the MK (Sierra Leone) direction, endorsed as authoritative). The ordinary consequences of separation are not enough — it must be shown that this particular child would face genuinely severe hardship.

How to apply that threshold in practice was clarified in HA (Iraq) — see the next case.

The appellant was a Zimbabwean citizen living with HIV. Treatment in the UK kept the illness under control; access to the required drug in Zimbabwe was doubtful. Under the old law (the N case, 2005) such claims almost always failed: protection was reserved for those already dying.

The Supreme Court brought UK law into line with the ECtHR (Paposhvili v Belgium). “Very exceptional cases” are no longer limited to imminent death: a real risk of a serious, rapid and irreversible decline with intense suffering, or a significant (“significant” means “substantial”) reduction in life expectancy, is enough.

The threshold remains high, and the Court described the procedure: the applicant must first present evidence which — if unchallenged — would establish the real risk. Only then must the state “dispel any serious doubts”, including by checking the actual availability of treatment.

For people living with HIV, diabetes, cancer and other serious conditions this is the key precedent. Medical cases are evidence-heavy: they are not won without up-to-date medical reports and country evidence on treatment availability — that is a lawyer’s work.

After KO (Nigeria), tribunals began asking: “would this child really suffer more than any child whose parent is deported?” That comparison almost always worked against the family. The Home Office defended it in the Supreme Court — and lost.

The Court explained: “any child” has no measurable characteristics, and such a baseline is inconsistent with the duty to consider the best interests of the particular child. The correct standard is the direct MK (Sierra Leone) formula: “unduly harsh” means something severe and bleak, well beyond ordinary difficulty, with “unduly” raising the bar higher still.

The Court also clarified the “very compelling circumstances” test for sentences of 4 years or more: a full weighing of all circumstances against the very strong public interest in deportation. Rehabilitation is a relevant factor; the surest guide to the seriousness of the offence is the sentence itself.

Together, KO and HA are the operative standard for families facing a parent’s deportation for criminality. These are article 8 (family life) cases rather than asylum cases — but in real life they often run alongside asylum claims.