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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC 1660 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
|THE QUEEN ON THE APPLICATION OF BROWN||Claimant|
|SECRETARY OF STATE FOR HOME DEPARTMENT||Defendant|
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
Mr M Barnes (instructed by Treasury Solicitor) appeared on behalf of the Defendant
Crown Copyright ©
The Certification of Jamaica
Section 92 is qualified by section 94. 94(1) provides:
"This section applies to an appeal under section 82(1) where the appellant has made an asylum claim or a human rights claim (or both)."
Subsection (2) provides that:
"A person may not bring an appeal to which this section applies [in reliance on section 92(4)(a)] if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded."
Subsection (3) then provides:
"If the Secretary of State is satisfied that an asylum claimant or human rights claimant is entitled to reside in a State listed in subsection (4) he shall certify the claim under subsection (2) unless satisfied that it is not clearly unfounded."
At (n) in the list of States in subsection (4) is Jamaica. Jamaica, as I have noted, was added to the list in 2003, pursuant to subsection (5), which provides:
"(5) 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.
For completeness, I note subsections (5A) and (5B), without setting them out. Subsection (5C) provides:
"(5C) A description for the purposes of subsection (5A) may refer to -
(f)membership of a social or other group
(g)political opinion, or
(h)any other attribute or circumstance that the Secretary of State thinks appropriate."
Section (5D) provides:
"(5D)In deciding whether the statements in subsection (5)(a) and (b) are true of a State or part of a State, the Secretary of State –
(a)shall have regard to all the circumstances of the State or part (including its laws and how they are applied), and
(b)shall have regard to information from any appropriate source (including other member States and international organisations)."
Subsection (6) permits the Secretary of State to amend the list by omitting a State or a part of a State.
"5(1) This paragraph applies to an appeal by a person on any of the grounds mentioned in subsections (1) to (4) of section 8 of this Act if the Secretary of State has certified that, in his opinion, the person's claim on the ground that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from, or be required to leave, the United Kingdom is one to which -
(a) sub-paragraph (2), (3) or (4) below applies; and
(b) sub-paragraph (5) below does not apply.
(2) This sub-paragraph applies 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...
...(7) If on an appeal to which this paragraph applies the special adjudicator agrees that the claim is one to which -
(a) sub-paragraph (2), (3) or (4) above applies and
(b) sub-paragraph (5) above does not apply.
Section 20(1) of that Act shall not confer on the appellant any right to appeal to the Immigration Appeal Tribunal."
"The approach to judicial review.
55. The relevant provisions of the Act, set out in paragraph 2 above, empowered the Secretary of State to apply the accelerated procedure in relation to applicants resisting being sent to a country or territory designated in an Order as one 'in which it appears to him that there is in general no serious risk of persecution'. The Secretary of State did not argue that the words 'it appears to him that' empowered him to apply a purely subjective approach to designation; such an argument would have been untenable: see Secretary of State v Tameside MBC  AC p.1014 per Lord Wilberforce at p.1047. The Act only entitled the Home Secretary to designate countries or territories in respect of which the evidence available to him was such as to enable him rationally to conclude that there was 'in general no serious risk of persecution'.
56. Although rational judgment or evaluation was called for from the Secretary of State, what had to be evaluated was the existence of a state of affairs. Whether that state of affairs pertained was a question of fact. If he concluded that Pakistan was a country in which there was in general no serious risk of persecution, the Secretary of State then had to consider a further question which was essentially one of policy: should he designate Pakistan?
57. Thus on analysis, 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. There was no question here of conducting a rigorous examination that required the Secretary of State to justify his conclusion. 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.
58. It would not be right to conclude that, by approving the Order, each House of Parliament verified that Pakistan and the other countries named in that Order were countries in which there was, in general, no serious risk of persecution. The decision for each House was simply whether or not to approve the Order; the House was not required to rule on its legality. Neither House could amend the Order. It was for the Secretary of State, not for either House, to satisfy himself as to the legality of that Order. It cannot credibly be suggested that, in short debates in which no mention at all was made of the position of women, there was an evaluation which led to the conclusion that Pakistan was a country which the Secretary of State could legally include in the Order. The arguments advanced by the applicants and the conclusions of Turner J did not, in the event, controvert the proceedings of either House of Parliament. Thus the Secretary of State's contention that Article 9 of the Bill of Rights, was contravened fails both in law and on the facts.
59. It is time to turn to the evidence to see whether Turner J was correct in holding that it was not capable of leading to a rational conclusion that Pakistan was a country in which there was, in general, no serious risk of persecution."
I need to return to the concluding words of paragraph 57, "For a risk to be serious it would have to affect a significant number of the populace". Before leaving these paragraphs, I also note Lord Phillips's reference in paragraph 59 to a rational conclusion on the issue. It seems to me that the issue in this case of whether the Secretary of State could rationally be satisfied that a country merited designation raises the same question as Lord Phillips was canvasing in Javed.
Evidence on the situation in Jamaica
"Gay men and lesbians:
• Although it is not illegal to be homosexual in Jamaica, the Offences Against Persons Act criminalises homosexual intercourse between men, with a penalty of up to ten years' imprisonment with hard labour. The law also criminalises "acts of gross indecency" between men - in public or in private. The number of prosecutions, if any, brought under this legislation is not reported. Homosexual activity between women is not mentioned.
• Jamaican society is strongly disapproving of homosexuality - Physical and verbal abuse of gay men and women is widespread, including beatings, armed attacks and murder. Gay men and lesbians have been forced from their homes and towns. There have been allegations of police harassment, arbitrary detention, mob attacks, and harassment of homosexual patients by hospital and prison staff.
• Police often do not investigate human rights abuses against gay men and lesbians. Victims are often afraid to seek police protection as in some cases the police themselves harass and attack men they perceived to be homosexual.
• There are however examples of the police investigating crimes against gay men (eg the Williamson (founding member of J-Flag) and Harvey (gay and HIV activist) cases).
• Health services do not promote programs or services to gay because sodomy laws make it difficult for them to work with them.
• In what was portrayed as a radical shift in attitude by the Jamaican Government, having previously refused point blank to enter into a debate about the law on homosexual acts, in July 2005, a parliamentary committee headed by a junior minister proposed a debate on the issue in the context of the battle against HIV/AIDS. However, in February 2006, the Government announced that it would not be amending the Charter of Rights to decriminalise homosexuality or pave the way for same sex marriages.
• NGOs, for example, the Jamaican Forum for Lesbians, All Sexual and Gays (JFLag) campaign on behalf of Jamaican homosexuals most recently having made representations to the Joint Select Committee of the Houses of Parliament for the inclusion in the constitution to discriminate on the basis of sexual orientation.
QBD Admin Court Determination: R(On the application of Garfield Dawkins) v IAT (18/2/2003) held that the mere fact that Jamaica criminalises homosexual behaviour was not sufficient to require the UK to grant immigration status to all practising homosexuals in Jamaica - the applicant has to either show a breach of Article 3 or show that he would be subject to substantial discrimination and/or violence and abuse."
The overall conclusion of the review was as follows:
"Summary: Overall the human rights situation in Jamaica has not deteriorated - and in some respects (eg domestic violence) has improved since the designation of country. Concerns still do remain and these echo those identified at time of designation. These are:
(i) risk of persecution on political grounds by politically connected gangs in 'garrison communities'
(ii) risk of persecution of gay men
(iii) the ability to provide sufficient protection to those who inform against violent criminal gangs
(iv) police brutality and impunity, arbitrary arrests and detentions - despite the systems in place to address the problem."
The policy opinion given was:
"The discrete groups identified above are relatively small and, even when taken together, are not such a significant portion of the population that it could be argued in a designation challenge that the 'in general' test is not met."
The conclusion was:
"Jamaica continues to meet the test for designation."
One also learns from this page that legal advice was not sought.
"Men who are perceived to be homosexual and have for this reason suffered persecution in Jamaica are likely to be at risk of persecution on return. Men who are perceived to be homosexual and have not suffered past persecution may be at risk depending on their particular circumstances. The Secretary of State conceded that, as a general rule, the authorities do not provide homosexual men with a sufficiency of protection. There are likely to be difficulties in finding safety through internal relocation but in this respect no general guidance is given."
The case concerned a 19-year old Jamaican man with a very similar age to the claimant. At paragraph 8, the decision records an important concession made on behalf of the Secretary of State:
"[His counsel] told us that, after careful consideration, the Secretary of State was not going to take any point in relation to sufficiency of protection in Jamaican homosexual cases."
"'Mr Sobers is a member of the Jamaica bar and a former executive Director of the Independent Jamaica Council for Human Rights. He is clearly a distinguished and reputable expert on matters concerning human rights in that country. Very fairly, Mr Clarke, on behalf of the Secretary of State, describes his report as a careful and considered one by somebody who knows what he is talking about.'"
Another source was Amnesty International and further sources were the United States Department of State and a report of the Country Information and Policy Unit of the Immigration and Nationality Directorate of the Home Office.
"74. Those perceived to be homosexual are likely to face discrimination and harassment. There is a real possibility that discrimination and harassment can boil over into serious violence, including mob violence, and even death. The position of those perceived to be homosexual is exacerbated by the unpredictability of incidents of violence and the fact, conceded by Mr Blundell, that the authorities, usually the police, fail to provide a sufficiency of protection and are sometimes guilty of exciting or aiding and abetting violence against homosexuals.
75. Internal relocation is not, as a rule, available to a perceived homosexual who, as a stranger in another part of Jamaica, is likely to be regarded with suspicion, even before his homosexuality is identified. He is also likely to lose any protection he might have had from family and friends in his home area."
At paragraph 77, they said:
"77. Not all homosexual men in Jamaica are likely to be at risk of persecution or infringement of their Article 3 human rights. As Mr Sobers has pointed out 'a gay man with wealth and status can be left alone as long as he remains within his social circles and does not cause his sexual orientation or his same sex partnership to attract the attention. His sexual orientation will be tolerated as long as he is not openly gay'. However, Mr Sobers adds the caveat that 'the affluent gay man can be subject to extortion for fear that his sexual orientation become public knowledge.' A man who is not thought to be homosexual, perhaps because he has hidden his sexuality, is not likely to be at risk. There will be no perception of homosexuality and no history."
At paragraph 78 (the second paragraph so numbered) they continued:
"78. Every case will turn on both credibility and its particular circumstances. What happened to an individual before he left Jamaica will be important. If it is found that he suffered what amounted to past persecution then Demirkaya principles will assist him. If he did not, his task will be the more difficult, but not necessarily impossible. Factors to be taken into account include the extent to which an individual has been identified as homosexual, how widely spread is that perception, the extent of past acts of discrimination, harassment and violence, the extent to which an individual would present as homosexual (for example through dress, behaviour or demeanour), the extent to which he associates with other homosexuals, whether he is a homosexual prostitute, and the extent to which he is perceived to flout what many people in Jamaica regard as the norm of acceptable heterosexual behaviour.
79. With the possible exception of affluent gay men it is likely that a man who is thought to be homosexual will be at risk of homophobic intolerance, harassment and ill-treatment. The difficulty is in assessing whether this is likely to cross the threshold of persecution. It is clear that some of those who are perceived to be homosexual have suffered to this extent, what is not clear is how many. On the one hand it is likely that the most public and violent attacks will be reported, whilst on the other those who, understandably, decided not to complain to the police may also be reluctant to risk the consequences of press or other publicity. Whilst past persecution is probative of current risk the opposite is not necessarily the case. An individual who has not suffered past persecution may yet be at risk. There is no clear test to indicate when the threshold may be crossed. Homophobic violence is unpredictable. The acceptance by the Secretary of State of the absence of a sufficiency of protection is a vital factor. A man who is perceived to be homosexual and, as a consequence, has suffered past persecution is, unless there has been a material change in his circumstances, likely to be at risk of persecution and infringement of his Article 3 human rights in Jamaica. A man who is perceived to be homosexual but has not suffered past persecution may also be at risk depending on his particular circumstances including, for example, the extent to which it is believed that he suffered threats before departure and will behave on his return.
80. It is not likely that an individual who is at risk of persecution or infringement of his human rights because he is perceived to be homosexual will be able to obtain protection from the authorities. The ability to relocate safely was not fully argued before us. It was effectively, although not specifically, conceded by the Secretary of State in this appeal. It may be an issue which requires full argument or a definitive view from the Secretary of State. Mr Sobers evidence appears to suggest that it is not readily available although other material makes it clear that it does occur. For the purposes of this appeal we accept that the Secretary of State does not seek to argue that internal relocation is available to this appellant."
The overall summary of their decision I have already set out. The tribunal found a likely risk of persecution for those perceived as gay who had suffered persecution in the past, the situation in which the tribunal in this case found the claimant to be.
"(1) Jamaica is a deeply homophobic society. There is a high level of violence, and where a real risk of persecution or serious harm is established, the Jamaican state offers lesbians no sufficiency of protection.
(2) Lesbianism (actual or perceived) brings a risk of violence, up to and including 'corrective' rape and murder.
(3) Not all lesbians are at risk. Those who are naturally discreet, have children and/or are willing to present a heterosexual narrative for family or societal reasons may live as discreet lesbians without persecutory risk, provided that they are not doing so out of fear.
(4) Single women with no male partner or children risk being perceived as lesbian, whether or not that is the case, unless they present a heterosexual narrative and behave with discretion.
(5) Because the risks arise from perceived as well as actual lesbian sexual orientation, internal relocation does not enhance safety. Newcomers in rural communities will be the subject of speculative conclusions, derived both by asking them questions and by observing their lifestyle and unless they can show a heterosexual narrative, they risk being identified as lesbians. Perceived lesbians also risk social exclusion (loss of employment or being driven from their homes).
(6) A manly appearance is a risk factor, as is rejection of suitors if a woman does not have a husband, boyfriend or child, or an obvious and credible explanation for their absence.
(7) In general, younger women who are not yet settled may be at less risk; the risk increases with age. Women are expected to become sexually active early and remain so into their sixties, unless there is an obvious reason why they do not currently have a partner, for example, recent widowhood.
(8) Members of the social elite may be better protected because they are able to live in gated communities where their activities are not the subject of public scrutiny. Social elite members are usually from known families, wealthy, lighter skinned and better educated; often they are high-ranking professional people."
"3.7.3 The Jamaica Forum for Lesbians, All Sexuals, and Gays (J-FLAG) continued to report human rights abuses, including arbitrary detention, mob attacks, stabbings, harassment of gay and lesbian patients by hospital and prison staff, and targeted shootings of such persons. Police often did not investigate such incidents. During 2010, J-FLAG received 43 reports of sexually motivated harassment or abuse, which included 26 cases of attempted or actual assault, including three murders and three cases of rape. This violence created a climate of fear that prompted many gay persons to emigrate, while the gross indecency laws left those who remained vulnerable to extortion from neighbours who threatened to report them to the police unless they were paid off.
3.7.4 The Amnesty International annual report covering events in 2010 stated that scores of homophobic attacks, harassment and threats against of lesbian, gay, bisexual and transgender (LGBT) people were reported to LGBT organisations, including at least three cases of 'corrective' rapes of lesbians. On 3 September 2010, a woman was raped by a gang of six men who had previously verbally abused her. She also suffered genital mutilation after the rape. A survey of 11 lesbian, bisexual and transgender women victims of violence found that only one had reported the rape to the police and after two years she was still waiting for the court hearing. The others had not reported the crime because they feared being criminalized on account of their sexual orientation.
3.7.5 International and local human rights organisations provide details on several cases in which the police failed to adequately protect LGBT people from mob violence. According to the international NGO Youth Coalition for Sexual Reproductive Rights (YCSRR), the Jamaican police have not laid charges against anyone responsible for mob-related killings of LGBT people. Similarly, the Executive Director of J-FLAG states that there have not been any prosecutions of participants of mob violence against LGBT people...
3.7.8 Gay men were hesitant to report incidents against them because of fear for their physical well-being. Human rights NGOs and government entities agreed that brutality against such persons, primarily by private citizens, was widespread in the community.
3.7.10 JFlag claimed that transgendered persons are coming out, but fear prevents them from fully expressing their gender identity. The gay lobby estimates that up to 270,000 lesbian, gay, bisexual, and transgendered people live in Jamaica. That represents "between three to 10 per cent of the population". Of that figure a "smaller percentage" are transgendered persons.which includes transvestites (cross-dressers) and transsexuals (surgical augmentation)...
3.7.12 Conclusion. In general the Jamaican authorities do not provide gay men, lesbians, bisexuals and transgendered persons or those perceived as such with effective protection. There are also likely to be difficulties in finding safety through internal relocation. The law provides for freedom of movement within the country and Government generally respects this right in practice.41 However, in the case of DW (Homosexual Men; Persecution; Sufficiency of Protection), it was found that in a country like Jamaica, where homophobic attitudes are prevalent across the country, it would be unduly harsh to expect a gay man or someone who is perceived as such to relocate. The 2011 country guidance case of SW (lesbians – HJ and HT applied) found that single women with no male partner or children risk being perceived as lesbian, whether or not that is the case, unless they present a heterosexual narrative and behave with discretion and because the risks arise from perceived as well as actual lesbian sexual orientation, internal relocation does not enhance safety. It was also found that perceived lesbians also risk social exclusion (loss of employment or being driven from their homes). In addition, the Supreme Court in the case of HJ (Iran) made the point that internal relocation is not the answer if it depends on the person concealing their sexual orientation in the proposed new location for fear of persecution.
3.7.13 If there is a real risk that a gay man, lesbian or bisexual sexual relationship or those perceived as such, has, or will, become known, the applicant would on return to Jamaica face a real risk of discrimination and violence by members of the public or criminal gangs, to the extent that this would amount to persecution. As gay men, lesbians and bisexuals in Jamaica may be considered to be members of a particular social group, they should be granted asylum.
3.7.14 However, if an individual chooses to live discreetly because he/she wants to avoid embarrassment or distress to her or his family and friends he/she will not be deemed to have a well founded fear of persecution and will not qualify for asylum. This is because he/she has adopted a lifestyle to cope with social pressures and not because he/she fears persecution due to her or his sexual orientation.
3.7.15 If an individual chooses to live discreetly because he/she fears persecution if he/she were to live as openly gay, lesbian or bisexual then he/she will have a well founded fear and should be granted asylum. It is important that gay, lesbian and bisexual people enjoy the right to live openly without fear of persecution. They should not be asked or be expected to live discreetly because of their well founded fear of persecution due to their sexual orientation."
I note that paragraph 3.7.13 does not draw the same distinction as the DW case had drawn between those who have and have not suffered past persecution. Paragraph 3.7.15 reflects the law as declared by the House of Lords in HJ Iran.
"3. The fact is that a huge gulf has opened up in attitudes to and understanding of gay persons between societies on either side of the divide. It is one of the most demanding social issues of our time. Our own government has pledged to do what it can to resolve the problem, but it seems likely to grow and to remain with us for many years. In the meantime more and more gays and lesbians are likely to have to seek protection here, as protection is being denied to them by the state in their home countries. It is crucially important that they are provided with the protection that they are entitled to under the Convention – no more, if I may be permitted to coin a well known phrase, but certainly no less."
"71. While it is true that the House of Lords was not directly concerned with the question of whether women in Pakistan were in general at serious risk of persecution, we are in no doubt that their findings demonstrated that among women in Pakistan there was in general a serious risk of persecution. That risk was highlighted by much more detailed accounts of violence to women in respect of which the state provided no protection or redress in subsequent updated assessments of the position in Pakistan by the Country Information and Policy Unit.
72. Mr Seeney states in his witness statement:
'The Secretary of State has also given careful consideration to the implications of the decision of the House of Lords in R v Immigration Appeal Tribunal ex p Shah  2 WLR 1015. The Secretary of State regards that case as establishing that, on the evidence presented by the two appellants, women in Pakistan constituted a particular social group for the purposes of the Convention. The Secretary of State does not regard their Lordships' judgments as being concerned with the question whether women in Pakistan were in general at serious risk of persecution.'
73. No more detailed explanation is provided of the consideration given by the Secretary of State to the position of women in Pakistan. There is no explanation as to how he was able to conclude, on the material before him, that there was in general no serious risk of persecution in Pakistan. Had he applied the correct test to that evidence we do not consider that he could reasonably have reached this conclusion."
As far as people of the Ahmadi religious faith were concerned, the Court of Appeal referred to a finding of Judge Pearl in the Immigration Appeal Tribunal in his unreported decision in Kaleem Ahmed v Secretary of State for the Home Department. He had said:
"Each case involving Ahmadis must be looked at on an individual basis. It would in our view be wholly wrong to say that the discriminatory legislative provisions relating to Ahmadis means that all Ahmadis can claim asylum under the terms of the Convention. However, the evidence of the various reports referred to above which express an overall correct view of the position of Ahmadis, illustrates that Ahmadis live in Pakistan as a religious minority who are likely to meet examples of intolerance, discrimination and sadly at times blatant persecution in their everyday lives."
The Court of Appeal said at paragraph 76:
"We have set out the most material part of [Judge Pearl's statement] ... at paragraph 17 above - it paints a bleaker picture than Mr Seeney's summary, but had the evidence in relation to Ahmadis stood on its own, we would not have found it incompatible with the Secretary of State's conclusion that there was in general no serious risk of persecution in Pakistan. It is, however, a factor that, when considered together with the position of women, adds weight to our conclusion that the Secretary of State's inclusion of Pakistan in the White List was irrational."
"55. But there is an answer to Miss Richards' point and it has, I believe, different strands:
(a) The mistreatment of the citizens of Bangladesh is not localised, as was found in Balwinder Singh to be the case in India.
(b) In deciding to add Bangladesh to the list the defendant had to guard against any equation of the number of actual victims of persecution and of human rights abuses, as reported, with the number at risk thereof. There is a nexus between the numbers, hard to compute, but there is certainly not an equation.
(c) Section 94(5) required the defendant to reach a conclusion about circumstances 'in general' in Bangladesh and, although some of the relevant material relates to persecution of small minorities, in the end he had to survey the picture cumulatively, globally and indeed generally.
(d) Persecution within the meaning of the Refugee Convention will, by its nature, often be directed towards minorities. At all events women (49.5%) and Hindus (10%) each amount on any view to significant numbers of the populace, as probably do active members of the Awami League.
(e) Indeed it seems that any member of the population, whether or not a member of a particular group, is at risk of having his human rights abused. For, if arrested by the police, he is at risk of protracted unlawful detention, brutality, extortion, physical and psychological torture and even death, on the part of officers who operate in a climate of impunity and trade freedom for bribes.
(f) Equally the human rights of a substantial number of the state's children, and thus obviously of a vast constituency, are at risk of infringement, particularly under Articles 3 and 4 of the Human Rights Convention.
(g) Just as the defendant was required to look at circumstances in Bangladesh in general, so the authors of much of the objective material have attempted to address it generally as well as in particular. Their conclusion is that a serious risk of persecution and of human rights abuses exists on a general scale. As collected in the CIPU reports, they say, for example that:
(i) serious human rights abuses are 'numerous';
(ii) violence in politics is 'pervasive';
(iii) corruption 'plagued' the country;
(iv) the use of torture is 'widespread';
(v) the use of the police for political purposes is 'frequent';
(vi) domestic violence is 'widespread';
(vii) the abuse of children is 'common at all levels of society throughout the country';
(viii) violence between student wings of political parties is 'endemic'; and
(ix) oppression of religious minorities is becoming 'systematic'.
It is all too clear that persecution and human rights abuses are not the isolated problems, at the margins of life in Bangladesh, which, through Miss Richards, the defendant would have me accept. According to the Foreign Office, Bangladesh is ranked worst for corruption in an international index; according to the IRB of Canada it is ranked either second worst or fourth worst in indices of violence against women; and according to CIPU it is ranked 118th out of 139 in an index of press freedom."
"23. ... On the facts before me I am not persuaded that the evidence established, clearly or otherwise, to a reasonable Secretary of State that there was a risk of persecution which was a general feature in India, and I am certainly satisfied that a decision to the contrary was well within his considerable margin of appreciation. Further, whereas of course even 0.76% of the population of India is a substantial amount of people, nevertheless on the evidence the human rights abuses affected only a small percentage of that small percentage, such that it would be difficult to conclude that, in the context of India in general, a significant number of the populace was affected."
In the light of Burton J's findings about a small percentage of a small percentage being affected, I do not find, with respect, that I can derive much assistance from that regarding the on any view larger proportion of the Jamaican population that are likely to be at risk of persecution.
"22. It is not, therefore, enough to demonstrate occasional breaches of human rights standards even where they amount to persecution. The persecution must be sufficiently systematic properly to be described as a "general feature" in that country, and this in turn requires that it should affect a significant number of people."
He described the issue at paragraph 25 as being:
"...Whether the objective evidence is capable of sustaining the Secretary of State's decision, or whether the decision to list Gambia was a conclusion which no Secretary of State on the evidence could properly reach."
He reviewed the evidence and continued:
"Mr Barnes does not deny that these observations make bleak reading. He concedes that the situation is, to use the words of Beatson J, 'troubling'. He submits, however, that given the margin of appreciation that we must afford to the Secretary of State in a decision of this nature, there was sufficient material to sustain her decision. The thrust of his case was that notwithstanding that there are human rights abuses of the kind outlined in those reports, when one looks at the detail of these reported abuses provided in the reports, they do not suggest that they are so widespread as to compel the conclusion that they constitute a general feature of life in Gambia. To that extent he does not accept that the description in Amnesty 2008 that there are routine human rights' violations by way of unlawful detention, torture, extra-judicial execution, unfair trials and enforced disappearance, is in fact warranted by the particulars identified in the available reports. He relies in particular on the US 2009 report where chapter and verse is given with respect to the nature and extent of these human rights abuses."
As paragraphs 33 to 48 he summarised the evidence and submissions and concluded at paragraph 50:
"Having regard to all these matters I remind myself that the question is not whether this court would consider it appropriate to list Gambia, but whether the Secretary of State is entitled to do so. I agree with the observation of Beatson J that the situation is troubling, but I also agree with his conclusion that the Secretary of State was entitled to conclude, as I assume she must have done, that the human rights infringements were not so systemic or general as to compel the conclusion that as a matter of law Gambia could not properly be designated under section 94(4). It follows that the first ground of appeal fails."
I note his description of the conclusion as being that human rights imprisonments were not "so systemic or general as to compel the conclusion that as a matter of law Gambia could not properly be designated". I do not propose to lengthen this judgment by reviewing the evidence that Elias LJ summarised at paragraphs 33 to 48. There were various instances of human rights abuses, not all of them directed at any particular social group. The situation was different from the present case where there is evidence of persecution of a particular social group and the issue is whether that precludes a rational conclusion that there is not, in general, a serious risk of persecution of people entitled to reside in Jamaica.
"15...Miss Giovanetti submits that in this case there is nothing like the sort of widespread problem to render irrational the Secretary of State's judgment that the conditions in section 94(5) were satisfied. The fact that some homosexuals succeed in establishing their asylum or human rights claim is not enough. It is clear that homosexuals as a group cannot be said all to be at risk. So, too, the fact that there are some people who are able to establish claims on the basis that they are at risk as victims of criminal gangs is not enough. Even if one looks at the totality of the evidence relating to those two groups of people, it is not sufficient, submits Miss Giovanetti, to render irrational the perception that there is not in general a serious risk of persecution or to create a situation where removal in general will contravene the United Kingdom's obligations under the European Convention.
16. I accept those submissions. The evidence adduced by the claimant in this case does not get sufficiently near to establishing a general serious risk or a general contravention of this country's human rights obligations, so as to create an arguable case that the Secretary of State was irrational in forming the view that there was no such general problem and therefore in deciding to include Jamaica in the relevant list.
That was a decision of 2003, several years before the decision of the House of Lords in HJ (Iran) in July 2010 reflected in paragraph 3.7.15 of the Operational Guidance Note. I have to decide the case on the basis of the evidence as it stood by late 2010 and the law as it is declared.
My Conclusion on Designation
"27.1. It is well established that 'persecution within the meaning of the Refugee Convention will, by its nature, often be directed towards minorities'. Article 1A(2) of the Convention provides that a refugee is a person who 'owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group of political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country...'. Sections 94(5A), (5B) and (5C) of the 2002 Act use slightly different language but make the same point, that the Convention exists to protect individuals who have a 'well-founded fear of being persecuted' for characteristics or views that they share with others. Consequently, it is submitted, section 94(5) drives at whether, in any particular state or part of a state, there is in general no risk of persecution of persons for reasons of race, religion, nationality, membership of a particular social group or political opinion. If there is in general a serious risk that members of a particular group will be persecuted, then white-listing is not permitted...
30. ...That is not easy to do. Overall, however, the claimant submits that the sense of these provisions is that the defendant is not entitled to white-list any State where any description of persons entitled to reside in that State, or any part of it, is in general at any serious risk of persecution there. However, in such circumstances, the defendant is entitled to white-list the State, or specific parts of the State, in respect of other descriptions of persons who are not at any risk there."
As I have said, Mr Barnes objected to the focus on particular social groups rather than the situation "in general". I agree with him that Mr Knafler's approach does impermissibly divert the statutory enquiry from one of the general situation in the country to the situation of a particular description of persons in the country, apparently irrespective of the size of the population affected. That seems to me to be to contrary to paragraph 57 of Javed.
"If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded".(paragraph 58)
The Secretary of State's decision on certification under section 94(3) in this case is an example of that proposition working. If the Secretary of State has to recognise, as she appears to have done in this case, that a Jamaican claimant's claim to have a homosexual orientation may succeed, she is thereby forced to be satisfied that the claim is not clearly unfounded. It does not therefore seem that the designation of Jamaica makes much practical difference to the situation of people like the claimant.
"They include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences."
As I have said, I do not see myself in this case as applying the Hardial Singh principles, which would allow detention in a wider number of circumstances than the policy. I have to consider whether the circumstances of this case fell so far outside the policy as to not make detention or continued detention lawful under them. But some of the matters referred to by Lord Dyson in section 104, in particular the diligence, speed and effectiveness of steps taken by the Secretary of State are, in my judgment, relevant to the exercise that I am conducting.
Period of Detention
"UK Border Agency policy is that certain individuals are unlikely to be suitable for entry or continued management in the DFT or DNSA processes. These persons are ...
• Those presenting with acute psychosis, e.g. schizophrenia, who require hospitalisation ...
• Those in respect of whom there is independent evidence of torture."
"Patient claims that he was prosecuted [sic: clearly a mistake for persecuted] on numerous occasions [there is then something illegible] by members of society due to his sexuality. He is homosexual. He was beaten on few occasions and exposed to numerous insults.
On examination most seemed to be from superficial injuries and
–Claims he broke his teeth.
–Fractured right ankle.
–Fractured right elbow."
Mr Knafler says that that report did not comply with Rule 35 as it did not address the Rule 35 criteria. The doctor did make this report under Rule 35, but he did not report any finding that the claimant was likely to be injuriously affected by detention or that he had been a victim of torture. The Border Agency responded to the report by writing to the claimant saying:
"I am writing to acknowledge receipt of the report dated 29/10/2010 notifying us of a special illness or condition.
Information contained in the report has been considered and the decision to detain you has been reviewed, as per Detention Service Order 03/2008.
The report states: [and then what I have read out was summarised]...
However, it is noted the doctor has not suggested that your detention is inappropriate and there has been no recommendation to release you. It has therefore been decided that detention will be maintained as your application for asylum is yet to be considered. The AOT form merely repeats your account of ill-treatment as opposed to making a diagnostic finding about your injuries/symptoms. As a result, the form not revealed to support your account of torture. Your case therefore remains suitable for the Fast Track process."
Mr Knafler submitted that the report did constitute evidence of torture and that the Secretary of State broke her policy by not considering whether detention was appropriate in the light of that. In my judgment, the report indicated beatings. It did not indicate torture in the general sense of the word and I agree with Mr Barnes that it did not contain anything which suggested that the claimant was unsuitable for detention on medical grounds.
"Intermittent pain in his right ankle and several superficial skin scars. He sometimes experiences stomach cramps. He feels low in mood and anxious and these feelings have been worse since his detention."
Her physical examination of the claimant reported broken teeth and eight scars. Her mental state examination recorded "objectively low mood, sadness and nightmares but no current suicidal ideation". She gave the opinion that the injuries were consistent with the ill-treatment that the claimant had described and went on to say:
"He has symptoms of depression, objective and subjective low mood, lack of interest or pleasure, tearfulness. He also meets criteria for post-traumatic stress disorder."
She referred back to paragraph 5.2 of his report (his low and sad mood, failure to smile during the interview, nightmares) but no suicidal ideation. Paragraph 6.8 continues:
"He experienced attacks during which he was very frightened; the events are re-experienced as nightmares and as intrusive memories; he tries to avoid these memories; his depression is associated with trauma."
The summary referred back to his account of ill-treatment, and continued:
"He has scars which are consistent with the injuries that he describes. He experienced lack of support from family and community.
He has symptoms of depression and post-traumatic stress disorder following the attacks."
"Lesion could have been caused by the trauma described but it is non-specific and there are many other possible causes."