R (on the application of Brown) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Carnwath,Lord Toulson,Lady Hale,Lord Sumption,Lord Hughes |
| Judgment Date | 04 March 2015 |
| Neutral Citation | [2015] UKSC 8 |
| Date | 04 March 2015 |
| Court | Supreme Court |
[2015] UKSC 8
Lady Hale, Deputy President
Lord Sumption
Lord Carnwath
Lord Hughes
Lord Toulson
Appellant
James Eadie QC Matthew Barnes (Instructed by Treasury Solicitors)
Respondent
Stephen Knafler QC
Paul Nettleship
Raza Halim (Instructed by Sutovic and Hartigan Solicitors)
Intervener (Liberty)
Karon Monaghan QC
Philip Dayle (Instructed by Liberty)
Heard on 26 November 2014
( with whom Lady Hale, Lord Sumption and Lord Carnwath agree)
Is the description that "there is in general in that State … no serious risk of persecution of persons entitled to reside in that State", in section 94(5) of the Nationality, Immigration and Asylum Act 2002, applicable to a state in which a) there is a serious risk of persecution of gays and other members of the LGBT community, b) that community is estimated to amount to between 5% and 10% of the population and c) there is no such risk affecting the remainder of the population? The state in question is Jamaica.
At first instance Mr Nicholas Paines QC, sitting as a Deputy High Court Judge in the Administrative Court, held that the Home Secretary could rationally find that the words applied to Jamaica, since 90% or more of the population did not face a serious risk of persecution. The Court of Appeal reversed his decision by a majority [2014] 1 WLR 836. Moore-Bick LJ agreed with the deputy judge. He considered that opinions might legitimately differ on the question whether the proportion of LGBT people in Jamaica was so substantial as to lead to the conclusion that there was a serious risk of persecution, viewed from the perspective of the population as a whole, and that it was not irrational for the Home Secretary to reach a negative conclusion.
Pill and Black LJJ took a different view. Pill LJ said (at para 57):
"My conclusion is that a state in which there is a serious risk of persecution for an entire section of the community, defined by sexual orientation and substantial in numbers, is not a state where in general there is no serious risk of persecution. As Lord Hope stated in HJ (Iran) v Secretary of State [2011] 1 AC 596 at para 11, the group is defined by 'the immutable characteristics of its members' orientation and sexuality'. It does not follow from the absence of risk to the much larger heterosexual community that in general there is no serious risk in section 94(5) terms where an entire section of the community of significant size and defined by its immutable characteristics, is at serious risk of systematic persecution."
Black LJ's judgment was to similar effect.
Under section 82(1) of the Act there is generally a right of appeal to the Asylum and Immigration Chamber of the First Tier Tribunal in respect of an "immigration decision", which includes a decision that a person is to be removed from the UK.
Section 92 limits the circumstances in which such an appeal may be made in-country. They include cases where an appellant has made an asylum or human rights claim while in the UK, as the respondent did. But section 92 is qualified by section 94(2) so as to exclude an in-country appeal if the Home Secretary has certified that the asylum or human rights claim is clearly unfounded. And section 94(3) requires the Home Secretary to certify the claim if satisfied that the claimant is entitled to reside in a state listed in subsection (4), unless satisfied that the claim is not clearly unfounded.
Jamaica was added to the list of states designated under section 94(4) by article 3 of the Asylum (Designated States) Order 2003 (SI 2003/970).
Section 94(5) sets pre-conditions on the exercise of the power of designation under subsection (4). It provides:
"The Secretary of State may by order add a State, or part of a State, to the list in subsection (4) if satisfied that –
(a) there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and
(b) removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdom's obligations under the Human Rights Convention."
Under section 94 (5A) to (5C), if the Home Secretary is satisfied that the statements in subsection (5) are true of a state, or part of a state, in relation to "a description of person", an order may be made adding it to the list under section 94(4) in respect of that description of person. A description for this purpose may refer to a person's gender, language, race, religion, nationality, membership of a social or other group, political opinion or "any other attribute or circumstance". These subsections were inserted by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, section 27.
The respondent is a citizen of Jamaica. He was referred to by his initials in the judgments of the courts below but has no further wish to be anonymous. He came to the UK on 7 May 2010 on a visitor's visa with leave to remain for one month. On 14 October 2010 he applied for asylum on the ground that he is a Jamaican homosexual and feared persecution if returned to Jamaica. On 20 October 2010 he was detained under section 62 of the Act pending a decision on his removal. The detention power was exercised in conjunction with a policy for fast tracking cases eligible to be dealt with under the so-called Detained Non Suspensive Appeals ("DNSA") process. It is not necessary for the purposes of this appeal to explain the details of the process, except to say that it applied only to asylum or human rights claimants from states designated under section 94(4).
Solicitors for the respondent complained to the Home Secretary that his case was not suitable for the DNSA process and his detention was unlawful. The complaint was rejected and on 15 November 2010 the respondent issued a claim for judicial review, seeking declarations that the decision to include Jamaica in the list of states designated under section 94(4) and the respondent's detention were both unlawful.
On the same day the appellant served a decision on the respondent refusing his claim for asylum, but not certifying it as clearly unfounded. This meant that the respondent was free to pursue an in-country appeal, and on 4 February 2011 the Tribunal upheld his claim to be a homosexual and at real risk of persecution if he were returned to Jamaica. Meanwhile the respondent had been released from detention on 24 November 2010.
The deputy judge dismissed the respondent's claim in its entirety. The Court of Appeal not only allowed his appeal (by a majority) on the issue of the designation of Jamaica under section 94(4), but also held (unanimously) that his detention had been unlawful on other grounds. There is no appeal against the latter part of the Court of Appeal's decision.
The leading authority relevant to the interpretation of section 94(4) is the decision of the Court of Appeal in R (Asif Javed) v Secretary of State for the Home Department [2001] EWCA Civ 789; [2002] QB 129. The case arose under para 5(2) of Schedule 2 to the Asylum and Immigration Act 1993, as substituted by the Asylum and Immigration Act 1996. The sub-paragraph applied to a claim if "the country or territory to which the appellant is to be sent is designated in an order made by the Secretary of State by statutory instrument as a country or territory in which it appears to him that there is in general no serious risk of persecution". The claimant challenged the validity of an order designating Pakistan as such a country on the ground that women and Ahmadis were generally at risk of serious persecution.
Giving the judgment of the Court of Appeal, Lord Phillips MR said at para 57:
"… the challenge made by the applicants to the inclusion of Pakistan in the order was to its legality rather than to its rationality. However, the language defining the state of affairs that had to exist before a country could be designated was imprecise. Whether there was in general a serious risk of persecution was a question which might give rise to a genuine difference of opinion on the part of two rational observers of the same evidence. A judicial review of the Secretary of State's conclusion needed to have regard to that considerable margin of appreciation … If the applicants were to succeed in showing that the designation of Pakistan was illegal, they had to demonstrate that the evidence clearly established that there was a serious risk of persecution in Pakistan and that this was a state of affairs that was a general feature in that country. For a risk to be serious it would have to affect a significant number of the populace." (Original emphasis)
The reference in the final sentence to the need for the risk to affect "a significant number of the populace" has given rise to debate, but it needs to be read in context. The evidence on behalf of the Home Secretary explained his reasoning in reaching his decision as follows:
"… although certain minority groups [by which he included Ahmadis] may be subjected to acts of ill-treatment by members of the general populace, the Government of Pakistan does not itself engage in such acts and Pakistan is not regarded as a country where the State is in general unwilling or unable to offer effective protection to its citizens against such acts. For that reason it is considered to be a country where there is in general no serious risk of persecution either from the State itself or from members of the public, either acting with the State's sanction or encouragement, or against whose acts the State is in general unwilling or unable to protect."
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