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England and Wales High Court (Administrative Court) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Brown, R (on the application of) v Secretary of State for Home Department [2012] EWHC 1660 (Admin) (28 May 2012)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/1660.html
Cite as: [2012] EWHC 1660 (Admin)

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Neutral Citation Number: [2012] EWHC 1660 (Admin)


Royal Courts of Justice
London WC2A 2LL
28 May 2012

B e f o r e :

(Sitting as a Deputy High Court Judge)




Computer-Aided Transcript of the Stenograph Notes of
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Mr S Knafler, QC and Danny Bazzini (instructed by Sutovic & Hartigan) appeared on behalf of the Claimant
Mr M Barnes (instructed by Treasury Solicitor) appeared on behalf of the Defendant



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  1. THE DEPUTY JUDGE: I heard this case at the end of March. During the course of the hearing the Secretary of State asked for permission to make further submissions about some statistical information given to the claimant, which appeared to those attending court on behalf of the Secretary of State to be wrong. Mr Stephen Knafler, QC, who appeared with Mr Danny Bazzini for the claimant, very realistically and properly agreed to this being done. I would have permitted it anyway in the interests of dealing with the case justly on the basis of correct information. A timetable was set for submissions and reply in the course of April. This was done. Further time elapsed owing to the difficulties of finding a date this term on which I and counsel were available for the giving of judgment. I have concluded that the judicial review must be dismissed for the reasons that I shall now give.
  2. The Claims

  3. These are applications for judicial review of, first, the insertion -- which was done by statutory instrument -- and the continuing inclusion of Jamaica in the list of states at section 94(4) of the of the Nationality, Immigration and Asylum Act 2002. Secondly, the claimant seeks judicial review of his detention in immigration detention between 20 October 2010 and 24 November 2010. The claimant seeks a declaration that these things were unlawful and damages for unlawful detention. The issues are linked: it was the inclusion of Jamaica in the statutory list that made the claimant eligible, under the Secretary of State's policy, for detention as a national of (in the jargon) a non-suspensive appeals country).
  4. The Facts

  5. The claimant was born in Jamaica in 1989. He came to the United Kingdom in February 2010 aged 20 on, as I understand it, a holiday visa. He returned to Jamaica but came back to the United Kingdom in May 2010 with one month's leave to enter. On that occasion he overstayed. On 14 October 2010 he claimed asylum owing to his fear of the consequences of returning to Jamaica, on the grounds that he had suffered persecution there as a homosexual man. He also made a human rights claim. The Secretary of State for the Home Department placed the claimant in emergency hostel accommodation and required him to return to the Asylum Screening Unit at Croydon on 20 October. The claimant duly did and was detained and placed under the Home Office's detained fast-track and detained non-suspensive appeals processes. The decision to detain him was maintained on a number of reviews until he was released on 24 November.
  6. In the meantime, on 15 November, the Secretary of State had rejected the asylum and human rights claims and had refused leave to remain. The Secretary of State had concluded that the claimant was not a homosexual man. The claimant appealed against those decisions. The Secretary of State did not certify the claims as clearly unfounded pursuant to the relevant legislation, to which I shall turn presently. The consequence of that was that the claimant could pursue an in-country appeal to the Immigration and Asylum Chamber of the First Tier Tribunal.
  7. On 19 November 2010, the tribunal refused to take the claimant's case out of the tribunal's fast-track on the basis that it should be dealt with at a hearing that was already listed for 24 November. However, when the case came on for hearing on 24 November, the tribunal did then decide to take it out of the fast-track. The Home Secretary released the claimant from detention on the same day. On 4 February 2001, after a hearing, Immigration Judge Glenn found that the claimant was a gay man and that he had a well-founded fear of persecution in Jamaica. Consequently, the Secretary of State issued him with leave to remain in this country for 5 years.
  8. In the light of the findings and decisions of the First Tier Tribunal, which are not in issue, it is unnecessary for me to set out at length the evidence relating to the past treatment of the claimant in Jamaica. I shall look at materials on the treatment generally of the LGBT community in that island. I note, in addition, that the Secretary of State accepted before the tribunal that if the claimant were perceived to be a gay man he would be at real risk of persecution on any return to Jamaica. The Immigration Judge accepted the oral evidence of the claimant and his aunt, together with evidence in e-mails from two former lovers of the claimant in Jamaica. The judge also found the claimant's accounts, which make unpleasant reading, of beatings, harassment and injuries to be credible. I shall come on to discuss the evidence of the situation of homosexual people in Jamaica generally.
  9. The Certification of Jamaica

  10. The statutory background is in the 2002 Act; section 82(1) of the Act confers a right of appeal to the tribunal in respect of an "immigration decision", which is itself defined in subsection (2) and includes, at (g), "a decision that a person is to be removed from the United Kingdom". Section 84(1)(g) specifies one of the grounds upon which such an appeal may be brought: that the removal of the appellant from the United Kingdom in consequence of an immigration decision would breach this country's obligations under the Geneva Convention on Refugees or would be unlawful under section 6 of the Human Rights Act as being incompatible with the European Convention on Human Rights. Section 92, headed "Appeal from United Kingdom: general" provides in subsection (1) that a person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which the section applies. It then lists the circumstances in which an appeal may be pursued in-country. By section 92(4)(a) in-country appeals include an appeal against an immigration decision if the appellant has made an asylum claim or a human rights claim while in the United Kingdom. The claimant had done so.
  11. 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.

  12. R (Javed) v Secretary of State for the Home Department [2001] EWCA Civ 789 establishes that decisions of this sort are amenable to judicial review and says something about the judicial approach. The Javed case concerned different earlier legislation found in schedule 2 of the Asylum and Immigration Act 1993. Because Mr Knafler submitted that the Javed approach was not apposite to the current legislation, I must note the differences between the two. In the 1993 Act, schedule 2 provides at paragraph 5(1), 5(2) and 5(7) as follows:
  13. "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."
  14. There are differences between the two sets of provisions in that: the 1993 Act provides a power to designate where it appears to the Secretary of State that there is in general no serious risk of persecution, whereas the 2002 legislation requires the Secretary of State to be satisfied that there is in general no such risk; the 1993 legislation refers to a country or territory, that of 2002 to a state or part of a state; the 1993 legislation refers simply to persecution, whereas the 2002 legislation refers to persecution of persons entitled to reside in the state or part of the state in question. The consequence of designation under the 1993 legislation was that there was no right of appeal; the consequence under the 2002 legislation is that there is no in-country right of appeal. I do not find that any of the differences of wording that I have referred to require a different approach here from that taken in Javed, which I shall proceed to consider. The wording of both pieces of legislation in my judgment raises the same question of whether the Secretary of State is able rationally to conclude that in general there is no serious risk of persecution in a state or (under the 2002 legislation) part of one.
  15. In Javed, Lord Phillips, MR, described the approach to be taken by the courts to the review of certification under the 1993 legislation as follows:
  16. "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 [1977] 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

  17. Following Jamaica's designation in 2003 there have been reviews of it, most recently in April 2007. Since the issues in this case relate to the situation of gay and lesbian people in Jamaica, I largely confine myself to passages relevant to that. In a section of the document dealing with the treatment of groups, a section on gay men and lesbians reads as follows:
  18. "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.

  19. DW (Jamaica) [2005] UK AIT 168 is a decision of the Asylum and Immigration Tribunal of November 2005, giving country guidance. The summary of the decision reads as follows:
  20. "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."
  21. This was not a general concession but one made for the purposes of that case. The tribunal also noted that counsel for the Home Secretary did not argue that homosexual people at risk of persecution in their home area could be expected to relocate within Jamaica.
  22. The tribunal considered evidence from various sources. One was a Mr Sobers, who was described by the Court of Appeal in another case as follows:
  23. "'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.

  24. The tribunal's general conclusions included the following:
  25. "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.

  26. The position of lesbian women in Jamaica was considered recently in SW v The Secretary of State for the Home Department [2011] UK UT 251 (IAC) decided in June of last year by the Asylum and Immigration Chamber of the Upper Tribunal . The summary begins by describing Jamaica as a deeply homophobic society. It continues as follows:
  27. "(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."
  28. In reaching that conclusion, the tribunal accepted the evidence of Mr Sobers, who had given evidence to the previous tribunal that I have referred to. It also took account of the Secretary of State's Operational Guidance Note on Jamaica as revised in May 2011. The latest version of the Operational Guidance Note is dated in February of this year and no material difference between the two versions was drawn to my attention, except that Mr Knafler submitted that the more recent Guidance Note painted an even worse picture than its predecessor. The Guidance Note of 2011 had described Jamaica as having an aggressively homophobic culture, as I have noted the tribunal finding. That of 2012 described the situation in part as follows:
  29. "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.

  30. Mr Knafler submitted that in the light of these materials the, Secretary of State could not rationally conclude that Jamaica was a country in which there was, in general, no serious risk of persecution. He submitted that all homosexual people were at risk of being perceived as such and, in consequence, persecuted. He pointed out that a person could come to be perceived as having a homosexual orientation if, for example, a confidence was betrayed, their demeanour gave that impression, they kept homosexual company and, in the case of women in particular, were not seen as having a heterosexual history. Apart from those who were prepared to behave discreetly for social reasons as opposed to fear of persecution, all, he submitted, were at risk.
  31. Whether they amounted to a significant number of the populace, in the words of Lord Phillips in Javed, was, he submitted, partly a question of numbers and partly qualitative. There was debate before me about the numbers of homosexual people in Jamaica and comparisons were made with numbers in other decided cases about designations. But Mr Knafler's primary case was that irrespective of their numbers, LGBT people were a distinct social group requiring protection under the Refugee Convention and it could not rationally be said that a country in which that group risked persecution was a country in which there was, in general, no serious risk of persecution. He submitted that the Secretary of State could not rationally designate a country where any description of persons entitled to reside in that country faced, in general, a serious risk of persecution. He referred me to Lord Hope's words at paragraphs 2 and 3 of his judgment in HJ Iran [2010] UKSC 31 [2011] 1 AC 5 and 6. Paragraph 3 reads as follows:
  32. "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."
  33. Mr Mathew Barnes for the Secretary of State disagreed with Mr Knafler's approach. He said it impermissibly diverted the statutory question, of whether there was in general a serious risk of persecution, away from consideration of "persons entitled to reside", as the statute provides (in other words the population in general) onto a subgroup of that population.
  34. As to the number of gay and lesbian people in Jamaica, Mr Knafler referred me to an e-mail from the JFlag organisation that has been referred to containing an estimate of 5 per cent of the population, equating to some 135,000 people. He also referred me to a report prepared for the Jamaica Ministry of Health in 2003, which estimated that between 100,000 and 120,000 men in Jamaica engaged in homosexual activity. The report referred to the international estimate of the prevalence of male homosexuality as between 5 and 10 per cent of the male population. Paragraph 3.7.10 of the OGN to which I have read refers to an estimate of 270,000 LGBT people in Jamaica. That would equal 10 per cent of the country's population.
  35. I was shown two cases in which designations have been overturned by the courts and two in which they have been upheld. The first is Javed itself, where designation was quashed. The treatment of two groups was in issue: first, women; and secondly, those of the Ahmade religious faith. In the case of women, the Court of Appeal's conclusion was based on the findings of the House of Lords in R v Immigration Appeals Tribunal ex parte Shah [1999] 2 AC 629. In Javed, the Secretary of State accepted that women constitute a particular social group and accepted the findings of fact contained in the Shah decision. There was dispute in Javed about whether Shah established a general risk of persecution as opposed to discrimination; the Court of Appeal concluded:
  36. "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 [1999] 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."
  37. Mr Barnes relied on KK (Ahmadi) Pakistan [2005] UK IAT 33, a country guidance case, as showing that there were 4 million Ahmadis representing 2.7 per cent of the Pakistani population. Referring to paragraphs 7 (iv) and 22 of that decision, he suggests that the position of LGBT people in Jamaica is analogous to that of Ahmadis in Pakistan: a small proportion of the population, all at risk, but not all suffering persecution. In response, Mr Knafler submitted that the real difference between KK and this case was in the degree of risk of persecution. He referred to paragraphs 23 and 24 of the decision. Given that KK is not a designation case and that the findings in KK are not referred to in Javed, I do not find that combining facts found in KK with the conclusion in Javed provides any real illumination of the Court of Appeal's reasoning about Ahmadis in Javed. I do not know, beyond what one learns from the judgment, what evidence they had before them, but it seems to me to be a wrong approach to combine the findings of fact in one case with the conclusion in another.
  38. R (Zakir Husan) v Secretary of State for Home Department [2005] EWHC 189 (Admin) was a challenge to the certification of an asylum claim under section 94(3) of the 2002 Act. There was a underlying challenge to the designation of Bangladesh in the Order of 2003 that had also added Jamaica. Wilson J held that the designation was irrational. At paragraph 55, referring to the submissions of Miss Richards on behalf of the Secretary of State he said:
  39. "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."
  40. Mr Knafler, referring to Wilson J's comment about the Awami League, took me to a UNHCR document containing an estimate of their numbers at one million, equal to under one per cent of the population. But as Wilson J did not refer to their numbers when he said that members of the Awami League probably amount to significant numbers of the population, it does not seem to me that I am compelled to conclude that one per cent is inevitably a significant proportion of a population for the purposes of Lord Phillip's "significant number of the populace test". I note that in Balwinder Singh v (1) Secretary of State for the Home Department (2) Special Adjudicator [2001] EWHC 925 (Admin), Burton J reached the contrary conclusion that they were not a significant proportion of the population.
  41. Turning to the cases in which challenges to designations failed, the first was the case I have just referred to, Singh. Singh was decided under the previous legislation. The persecution relied on was localised and affected 0.76 per cent of the population. Burton J concluded, referring to the terminology of Javed, that:
  42. "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.

  43. The other case in which a challenge to designation failed was R (on the application of MD (Gambia)) v Secretary of State for the Home Department [2011] EWCA Civ 121. The judgment was given by Elias LJ with whom the other Lords Justices concurred. He referred at paragraph 21 to paragraph 57 of Javed, which he summarised in his own words as follows:
  44. "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.

  45. Finally, I note R (Hylton) v Secretary of State for the Home Department [2003] EWHC 1992 (Admin). The claimant in that case was a gay man seeking to challenge the designation of Jamaica. Richards J dismissed the application for permission, accepting the submission of the Secretary of State, which he encapsulated at follows:
  46. "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

  47. I direct myself to the issues raised in paragraph 57 of Javed. There was debate as to whether the approach differed from Wednesbury irrationality, but I note that Wilson J in R(on the application of) Husan v The Secretary of State for the Home Department [2005] EWHC 189 (Admin) treated the issue as equivalent to Wednesbury and Elias LJ in MD (Gambia) used the language of "entitled to conclude". I see no room for any sort of intermediate test different from that colloquially labelled the Wednesbury test.
  48. Mr Knafler's submissions expressed the test in section 94(5) as follows:
  49. "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.

  50. In maintaining as she has done the designation of Jamaica, the Secretary of State has been faced with evidence of a risk of persecution affecting a group which, insofar as can be estimated, probably accounts for 5 to 10 per cent of the population. It does not seem to me possible to be any more precise than that. The issue for me is whether the Secretary of State could rationally maintain, in late 2010, the conclusion that there was, despite that evidence, in general no serious risk of persecution of the population of Jamaica. It does not, in my judgment, assist my task to weigh nicely percentages of a population. Quite apart from the difficulty of estimating the size of the LGBT Community in Jamaica, I do not think it can be said, at the estimated percentage levels that we are dealing with, that a percentage level of say 5 per cent, 8 per cent or 10 per cent, represents a level such that no reasonable person could fail to find that the risk of persecution affected a significant percentage of the population. It is different when one gets to percentages in the region of 50 per cent, such as the entire female population of a country, as in Javed. I also bear in mind that the reference in paragraph 57 in Javed to a significant number of the populace is not part of the statutory test, but rather a judicial description of the test's implications, in any event not laying down a precise numerical threshold.
  51. Mr Knafler disavowed reliance on the Secretary of State's power to designate Jamaica in the case of heterosexual people only. As Mr Barnes observed, for her to do so would simply leave in each case the issue of whether a particular claimant had a heterosexual or homosexual orientation. I also note that the Secretary of State was unable to certify this claimant's claim as clearly unfounded pursuant to section 94(3), despite her conclusion that he was not a gay man. In this connection the observations of the Court of Appeal in R (L) v Secretary of State for the Home Department [2003] 1 WLR 1230 at paragraphs 56 to 59, dealing with a transitional provision in the 2002 Act equivalent to sections 94(2) and 94(3), are relevant. The Court's conclusion was to the effect that, apart from the opposite starting points, the exercises required by the sections equivalent to sections 94(2) and 94(3) are not dissimilar. Even under section 94(3), where the Secretary of State is to certify a claim unless satisfied that there would be a risk of persecution in the individual case:
  52. "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.

  53. It seems to me that the issue put before me is whether the Secretary of State could rationally find that the criteria for designation under section 94(5) remained met in the case of Jamaica in circumstances where she could, in my judgment, rationally find that something of the order of 90 per cent of its population, and possibly more, did not face a serious risk of persecution. In my judgment, the only possible answer is that she could. To reach that conclusion does not amount, in my view, to dismissing or diminishing the evidence of the seriousness of the situation faced by LGBT people in Jamaica. I have deliberately set the evidence on that out at some length in this judgment. To pick up some of the expressions used in the case law, it paints a bleak picture and is troubling reading, revealing the gulf to which Lord Hope referred in HJ (Iran).
  54. I also bear in mind that the claimant belongs to a group of people to whom legislative policy within this country accords particular protection in the shape of protection against discrimination and, in the number of criminal offences, it being a statutory aggravating factor that an element of hostility to people of homosexual orientation is involved. None of that, however, alters the fact that the question to be answered under section 94(5) concerns the situation in general.
  55. Detention

  56. The claimant was detained initially under the detained non-suspensive appeals process. When, on 15 November 2010, his asylum and human rights claims were dismissed and, as I have said, not certified, he became detained under the detained fast-track process which I understand applies to claimants whose appeals are considered suitable for the fast-track procedure in the tribunal. As I have mentioned before, when the tribunal took the case out of the fast-track, the claimant was released.
  57. Mr Knafler did not pursue a judicial review challenge to the lawfulness of the policies themselves, but maintained that his client's detention was inconsistent with those policies and with the familiar Hardial Singh principles derived from the R v Durham Prison Governor ex parte Hardial Singh [1984] 1 WLR 704 and conveniently summarised by Lord Dyson in R (Lumba) v Secretary of State for the Home Department [2011] UK SC 12.
  58. The question whether a person may be lawfully detained is not synonymous with the question of whether detention is in accordance with the DNSA or DFT policy. There will be cases where detention is lawful, although it is clear that the policy timetables are not appropriate for the case. This does not mean that the person must be released, but it does mean that the decision to detain them, or continue to detain them, falls to be taken outside the DSNA/DFT policy and, as Thomas LJ pointed out in R (Suckrajh) v (1) The Asylum & Immigration Tribunal and (2) The Secretary of State for the Home Department [2011] EWCA Civ 938 at paragraph 14, the decision to detain the person would have to be taken at a higher administrative level than decisions under the DNSA/DFT policy. That was not done in this case. The detention was at all times under the DNSA and then DFT policies. It seems to me that I have to consider therefore whether the case fell outside the parameters of those policies, as Mr Knafler submits.
  59. Mr Barnes referred me to Lord Dyson's summary of the Hardial Singh principles at paragraph 22 of Lumba, which is so familiar that I will not set it out, and also to paragraph 104 where he said that it was not possible or desirable to provide an exhaustive list of all the circumstances relevant to the question of how long detention is reasonable, but (as he continued):
  60. "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

  61. One ground of challenge was that, on the evidence produced by the Secretary of State, the procedures in late 2010 were taking so much longer than the 10 to 14 days indicated in the policy that the Secretary of State could not, consistently with the policy, have detained anyone under the DNSA or DFT processes. That submission was based on information provided at the time by the Secretary of State under the Freedom of Information Act, from which it could reasonably be inferred that the processes were taking around five weeks in the case of DFT and seven weeks in the case of DNSA. In the course of the hearing, Mr Barnes told me that those behind him were saying the figures must be wrong. He asked for time to check and, if necessary, correct them. As I have already mentioned, Mr Knafler very properly accepted that that needed to be done.
  62. Since the hearing I have been supplied with a bundle containing nine items. These are principally: a witness statement of George Menzies of the UKBA, dated 14 April, containing "refreshed" data for 2009/2010; an e-mail from the Treasury Solicitor of 11 April 2012, containing further "refreshed" data for the calendar year 2010; and witness statements of Jed Pennington and Jerome Phelps. The thrust of Mr Menzies's evidence is that the answers given previously under the FOIA request were misleading for two main reasons. First, insofar as the information related to periods between detention and the appointment of a legal representative, they cover cases in which detention, for example as an illegal entrant, preceded the claim for asylum and consequent entry into the DFT/DNSA processes. He said that since the appointment of a legal representative was only set in train once the asylum claim was made, the data supplied were misleading as to the length of those processes. Secondly, he said that the date entered for the appointment of a legal representative was the date upon which the representative's appointment was logged on the database, which could be later than the actual date of the appointment. Mr Menzies provided new information for the period April 2009 to March 2010, showing the average time between entry into DFT and decision of the claim as being nine days and the average time between entry into DNSA and decision as being 15 days. A further table supplied with the Treasury Solicitor's e-mail gives, for the calendar year 2010, average periods at Harmondsworth IRC between entry into the process and allocation of a representative, and from interview to decision. The combined total is 16 days for DFT and 13 days for DNSA.
  63. Mr Pennington, a solicitor with Bhatt Murphy, gives evidence in relation to a client of his who was detained from 10 September 2010 to 21 December 2010 and his schizophrenia was apparently attended to inadequately. Mr Phelps, of Detention Action, gave evidence of a survey of detainees under DFT who accessed Detention Action's services in the second half of 2010. He supplied a table, based on interview responses, which indicated that more than half had spent two weeks or more between their asylum claim, or detention if later, and their asylum interview at Harmondsworth IRC. No submissions based on these materials have been provided by the claimant since the hearing and no application has been made to cross-examine Mr Menzies or the source of the information given in the Treasury Solicitor's e-mail. In these circumstances, authority requires me to accept the Home Secretary's evidence and conclude that the waiting times in late 2010 were not unreasonably outside the indicative 10 to 14 days referred to in the policy.
  64. Mr Knafler's next submission in logical order was that it was apparent at the claimant's initial screening that his case was not within the parameters of suitability for the DNSA process. Paragraph 2 and 2.1 of the intake selection policy for DNSA and DFT indicate that it must appear upon screening that a quick decision may be made. The indicative timescale that is given is 10 to 14 days from detention to decision. But, as Mr Barnes pointed out, the document also says that the period spent in detention for the purpose of deciding the claim must be reasonable in all the circumstances. This implies that a period longer than 14 days may still be reasonable within the policy. However, paragraph 2.2.3 of the policy on intake selection identifies cases where there is not likely to be a quick decision as including cases where it is foreseeable that further enquiries by UKBA or the claimant are necessary to gather evidence without which a fair and sustainable decision could not be made. Mr Knafler submitted that it would have been apparent at the screening interview that there was a need for enquiries within Jamaica to obtain evidence supporting the claimant's sexual orientation, his persecution in consequence, and hospital records, for example, recording injuries for which he had had to seek treatment.
  65. In response to that submission, Mr Barnes says this was a claimant who had entered the country in February of 2010 and then returned voluntarily to Jamaica -- behaviour which, on the face of it, was inconsistent with a fear of persecution -- and on his subsequent return here had overstayed five months after his second entry before claiming asylum. The claimant could, Mr Barnes submitted, have put together his evidence during that five-month period. He submitted the Secretary of State could determine the credibility of the claimant's claim of a risk of persecution on the grounds of his orientation as a matter of credibility on the material already available. In the result, the Secretary of State did decide the asylum claim on 15 November 2010, slightly over three and a half weeks after the initial detention.
  66. The first thing I need to decide is whether there was a need for further enquiries by the claimant in Jamaica, with the result that this should not have been regarded as a quick-decision case by virtue of paragraph 2.2.3 of the intake selection document. On this point, I accept Mr Barnes' submission. First, in view of the claimant's delay in making an asylum claim, coupled with his failure to put together any evidence from Jamaica during his five months of overstaying, the Secretary of State was not in my judgment obliged to regard this as a case where fairness required her to give the claimant the opportunity of further time to make enquiries. Secondly, while paragraph 2.2.3 refers to a fair and sustainable decision, paragraph 2.2.3 requires it to be foreseeable -- not merely a matter of speculation -- that further enquiries will assist in making a sustainable decision. The claimant's credibility was undermined, in my judgment, by the matters I have referred to and there was no reason to foresee that further evidence from Jamaica would alter the decision.
  67. In the result some evidence from Jamaica, though not including hospital records, was before the tribunal which allowed the claimant's appeal in February of last year. But so was oral evidence from the claimant's aunt, who is in this country. At all events, it was not, as I have said, apparent at the outset of detention that evidence from Jamaica was necessary in terms of the policy. I therefore find that it was not apparent at the outset that this was not a "quick decision" case.
  68. Mr Knafler drew my attention to slippages in the timetable which contributed to the eventual three and a half week timescale. He also pointed out that, on the occasion of some of the detention reviews that were carried out during the period of detention, it was clear that arrangements for the necessary next steps were not yet in place. He submitted that the concept of an indicative timescale only permitted slight adjustments in specific circumstances, not the sort of slippage that occurred during this claimant's detention. He submitted that in this case it was clear, in the course of the detention, that the timetable was not to be adhered to -- with the consequence that the claimant should have been released. (The alternative would have been detention outside the policy but, as there is no evidence that the case was ever considered by the more senior personnel who would have had to have taken such a decision, I leave that possibility out of account.)
  69. I agree with Mr Barnes that Mr Knafler's approach to the policies is too rigid. It would be to place too heavy a burden on the Secretary of State, in my judgment, to say that any slippage in the timetable necessitates taking the cases out of the processes unless it is occasioned by particular circumstances. At the same time of course the courts must be vigilant not to allow detention under these processes to become unduly extended for the reason mentioned by Thomas LJ at paragraph 14 Suckrajh, namely the level at which the decision making is taken. But I have not been able to identify any point during the period leading up to the decision at which the Secretary of State should have concluded that a decision within a short further period was not foreseeable.
  70. Moving on to the period after the decision, I have already recorded that the case was transferred from DNSA to DFT on the footing that it was suitable for the fast-track procedure in the tribunal. The tribunal did indeed place the case in the fast-track and, as I have said, on 19 November declined to take it out. This judicial decision, in my judgment, supports the Secretary of State's decision to continue detention under DFT. She was not obliged to second guess the decision of the tribunal. When on 24 November, the day scheduled for the fast-track hearing, the tribunal did take the case out of the fast-track, the claimant was immediately released. I cannot see any basis for saying the Secretary of State was not entitled to regard the case as suitable for DFT in the period from 15 to 24 November.
  71. Medical Evidence

  72. Rule 33 of the Detention Centre Rules 2001 requires every detention centre to have a medical practitioner and healthcare team. Rule 34 requires every detained person to be given a physical and medical examination within 24 hours of admission unless they withhold their consent. Rule 35 requires the medical practitioner to report to the manager of the centre if, inter alia, a person's health is likely to be injuriously affected by detention, or the person is suspected of having suicidal intentions, or the person may have been a victim of torture. The manager must immediately send any such report to the Secretary of State.
  73. The intake selection guidelines, which I have already referred to say at paragraph 2.3:
  74. "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."
  75. The claimant was not examined under Rule 34 until 29 October, nine days after his detention. Mr Knafler complains of this and Mr Barnes complains in response that the point was not pleaded. He says that Mr Knafler should not be allowed to take it as the records which might explain the delay have been lost in the meantime. I am satisfied that the apparent breach of Rule 34 did not of itself render the detention unlawful, at all events where the Secretary of State had no reason to suspect a medical problem. In that connection, the claimant had indicated at his screening interview that he did not have health problems.
  76. The medical report reads as follows. Under the heading Clinical Information, the medical practitioner wrote:
  77. "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.

  78. On 9 November, the claimant's solicitors sent to the Secretary of State a report of a Doctor, referred to by the solicitors as a scar expert. It was in fact a general medical report covering more than simply scarring. The recorded history included, as reported by the claimant to the doctor, several beatings and a suicide attempt during the claimant's teenage years. As to the claimant's current medical and psychological condition, the Doctor noted:
  79. "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."
  80. The issue here is whether the concerns raised by the Doctor's report showed the claimant's case to be unsuitable for the DNSA or, subsequently, the DFT process, in accordance with the published policy (which as I have noted says that cases where there is independent evidence of torture may not be suitable). That might be either because past torture raised issues relevant to the asylum claim that could not be resolved quickly, or because the history showed the claimant to be medically unfit for detention. The Doctor's report supported the claimant's evidence of past mistreatment, though Mr Barnes stressed to me the expression 'consistent with', used by the Doctor, did not rule out other explanations. He referred to a manual on the effective investigation of torture which defined 'consistent with' in the following terms:
  81. "Lesion could have been caused by the trauma described but it is non-specific and there are many other possible causes."
  82. Mr Barnes also pointed out that the report of 'symptoms of' depression and PTSD did not amount to a diagnosis of either condition.
  83. I cannot see any reason why the report rendered the asylum claim unsuitable for a quick decision in accordance with the policy. The issue remained the claimant's credibility, which the report supported (and no doubt could be deployed, as was intended, in support of that). The report did not, in my judgment, suggest any reason why additional enquiries had to be made. There was, as I have said before, always a speculative possibility that further helpful evidence might be forthcoming if further enquiries were made but the report did not, in my judgment, point to any respect in which it was foreseeable that that would be the case. Furthermore, the report did not contain any warning that the claimant was unsuitable for detention although the GP knew the claimant was in Harmondsworth because she examined him there. She found no current suicidal ideation.
  84. The Secretary of State was in my judgment entitled to assume that if the GP was concerned that her findings led to a conclusion that the claimant was unsuitable for continued detention in the conditions he was in, she would have said so. Her silence on that indicated that she had not reached that conclusion. She had found no current suicidal ideation and nothing in the content of what she describes in terms of the symptoms of low mood or depression or PTSD lead me to the conclusion, in the absence of the expert herself having put it forward, that he was unsuitable for continued detention in Harmondsworth.
  85. It was suggested to me that the beatings fell within the definition of torture because they were occasioned by the claimant's homosexuality. Even if that is so, the policy does not say that past torture automatically precludes detention, but simply that some torture cases may not be suitable. There was, in my judgment, nothing in the content of the report to suggest, even if technically the past mistreatment was torture, that this was one of those torture cases that had to be regarded as unsuitable. That is for the reasons I have already given in relation to the contents of the report. For all the reasons I have given, I dismiss this application.
  86. MR KNAFLER: My Lord, may I make an application for permission to appeal on both limbs? If I may, I will outline the reasons just briefly.
  88. MR KNAFLER: On the first issue, I imagine that the Secretary of State will readily accept that the question of the designation of Jamaica raises issues of why general importance, I imagine, that would have been the Secretary of State's first submission, had your Lordship's decision gone the other way. One can see from the fact that the Court of Appeal has considered this issue twice in recent years, that it is an issue in which the Court of Appeal may take very seriously.
  89. As far as concerns the likelihood of an appeal being successful, clearly your Lordship has reached some very definite conclusions on the cases presented. Your Lordship has also made the point that, at the end of the day, it is the statutory wording that your Lordship is concerned with, primarily whether in general there is a serious risk of persecution. Nonetheless, I think it is paragraph 57 of Javed, contains, in my respectful submission, an authoritative explanation of the meaning of those statutory words, taking into account the overall purpose underlying the legislation so that the treatment that we think is common ground, and as your Lordship also held as part of your Lordship's judgment, is whether or not significant numbers are affected. I think your Lordship held that the numbers at serious risk of persecution are between 5 to 10 per cent and comprise the entirety of the LGBT population of Jamaica. My simple submission on that is that it is actually clearly foreseeable that the Court of Appeal would take a different view as to whether significant numbers were involved in this case. Looking at it both qualitatively and qualitatively the entire lesbian, gay, transgender and bisexual population of Jamaica, I think a point may have been made during the course of the hearing, it would be very difficult to imagine the Secretary of State or anybody else saying that the entire LGBT population, for example in the UK, did not amount to significant numbers, whereas proportionately it has got to be the same. Just briefly, those are the submissions on the first issue.
  90. I will try to be very brief on the second issue, the detention issue. In a nutshell, it is really whether or not at any point the Secretary of State should have appreciated that the case could not have been dealt with quickly. One factor that your Lordship's judgment perhaps (Inaudible) is the stream of letters from those instructing me starting from the time legal representatives were instructed before the interview making it crystal clear that the claimant did wish to obtain further evidence from Jamaica. I want to make that clear. That point was made loud in clear in my respectful submission from the very first letter that was written. Before that, had the Secretary of State considered the matter, there might have been a basis for deciding that the claimant had already had reasonable opportunity of gathering a certain amount of evidence and presenting it. What the policy required the Secretary of State to do was consider whether or not the claimant actually did have that information or whether, if the claimant didn't have that sort of information, one might expect the claimant to have, whether the claimant's (Inaudible) case was a case where such information was actually going to be needed, whether there were going to be further enquiries that needed to be carried out in Jamaica. Had the Secretary of State carried out those enquiries by asking the claimant, there could only have been one answer to that; the answer that he gave through his solicitors as soon as the solicitors were instructed. So on that basis I ask for permission to appeal on both aspects of the case.
  91. THE DEPUTY JUDGE: I think you must ask the Court of Appeal, Mr Knafler. I agree with you that this is an important issue. I gave ample consideration to your submissions about the qualitative and quantitative significance of the entire LGBT population of Jamaica. I have reached the conclusion I stated without, as I said in my judgment, intending to diminish the situation which that sector of the population faces. But without being able to instance any particular case, there might be a country in which some other group, amounting to 5 per cent of the population, were subject to persecution owing to some defining characteristic that attracted the hostility of others. I don't think it makes any difference whether the defining characteristics is being LGBT or something else. The question, as I see it, is one of rationality about the situation in general. I think it is best that a Lord Justice of Appeal looks at my judgment and considers whether his colleagues are likely to find I was wrong. On the issue of detention, of course people in the claimant's situation always want more time. As I have said, I saw the issue under the policy as being whether either fairness or foreseeable issues of sustainability of the decision required a longer timescale for decision, and I have given my reasons for finding not.
  92. MR KNAFLER: I am grateful. I think your Lordship may have to fill out some sort of certificate with the reasons on at some point. I think there are only two remaining matters from my perspective. It would be extremely helpful, because I am sure I will be instructed to take the matter somewhat further, it would be extremely helpful if your Lordship would be kind enough to order an expedited transcript of your Lordship's judgment and if your Lordship would grant an order that there be a detailed assessment of the claimant's publicly-funded costs.
  93. THE DEPUTY JUDGE: Well, the second, certainly. On the matter of expediting the transcript, this is now purely a damages claim. It is not urgent. I am always conscious of the pressure under which no doubt all court services operate, including, I suspect, the stenographers.
  94. MR KNAFLER: That's absolutely right, I was just being conscious of the time limit for lodging an appeal in 14 days.
  95. THE DEPUTY JUDGE: I agree with that, yes. Expedited transcript at public expense? Should it be paid for by the claimant? It seems to me it should, out of his funding, obviously.
  96. MR KNAFLER: I am not sure that that's the normal course, we are only asking for it to be expedited. An alternative possibility, we would have then to go back to the Legal Services Commission to see if we would get the funding for that, so I am not sure we would be in a position to give an undertaking today to pay the money in the absence of indication from the Legal Services Commission that funding would be available.
  97. THE DEPUTY JUDGE: Do I have power to extend time for permission to appeal to a higher court?
  98. MR KNAFLER: Yes.
  99. THE DEPUTY JUDGE: I will extend it to 14 days following receipt by those instructing you of the transcript.
  100. MR BARNES: My Lord, there is one outstanding issue which is our costs. We are entitled (Inaudible) we would like a (Inaudible).
  101. THE DEPUTY JUDGE: I don't think you can oppose that, can you Mr Knafler?
  102. MR KNAFLER: Subject to the usual proviso, bearing in mind that the claimant is publicly funded, no I can't oppose that.
  103. THE DEPUTY JUDGE: I make a party and party order, as it used to be called in the old days, and also direct assessment for public funding purposes on your application of a moment ago. Thank you.
  104. MR KNAFLER: Thank you, my Lord.

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