24 Oct 2016, 54 mins ago

In a case concerning a gay Jamaican asylum-seeker, R (on the application of Jamar Brown (Jamaica)) v Secretary of State for the Home Department [2015] UKSC 8 /decided-cases/docs/UKSC_2013_0162_Judgment.pdf, the UK’s highest court, the Supreme Court, has upheld a decision by the Court of Appeal that the inclusion of Jamaica on the safe countries of origins list, better known as the “white list”, was unlawful.

Mr Brown had applied for asylum on the basis that he is homosexual and feared persecution if he returned to Jamaica. However, Jamaica had been included on the list of states designated under section 94 of the Nationality, Immigration and Asylum Act 2002 as one in which the Secretary of State believes “(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”.

The s94 list is often referred to as the “white list”. Inclusion of a country on the list means that asylum or human rights claims from individuals entitled to reside there are required to be certified by the Secretary of State as “clearly unfounded” unless the Secretary of State is satisfied that this is not the case. If so certified, appeals against refusal of asylum or human rights claims have to be brought from outside the UK. In addition, the applicant is normally detained and consideration of the claim fast-tracked.

Mr Brown’s asylum claim was placed in the fast track and he was detained. He brought judicial review proceedings seeking declarations on two grounds: (I) his detention was unlawful; and, (II) the decision to include Jamaica on the white list was unlawful. On the same day, the SSHD refused Mr Brown’s claim for asylum but did not certify it as clearly unfounded. He could therefore appeal the decision whilst remaining in the UK and he was released from detention. On 4 February 2011, the First Tier Tribunal upheld his claim that he was homosexual and at real risk of persecution if returned to Jamaica.

However, Mr Brown’s judicial review complaint about Jamaica’s inclusion on the white list was unsuccessful before Paines J in the Administrative Court on both grounds, despite the fact that the Secretary of State accepted that there was a serious risk of persecution of members of the homosexual, lesbian, bisexual or transsexual community in Jamaica. Paines J held that it was open to the Secretary of State to consider Jamaica was safe in general because the gay community there only made up 10% of the population. However, this decision was overturned in the Court of Appeal , with the majority finding 10% to be a “significant number of the populace”. This meant that Jamaica was not safe “in general”. The Court of Appeal also held unanimously that Mr Brown’s detention had been unlawful.

The Secretary of State appealed against the decision on the white list to the Supreme Court, arguing that persecution of 10% of the population did not mean that she was not entitled to include a country on the list, because in her view, there could still “in general” be “no serious risk of persecution of persons entitled to reside there”. The Supreme Court unanimously dismissed the appeal.

Giving the leading judgment for the majority, Lord Toulson read the Act as referring to countries where its citizens are free from any serious risk of systematic persecution either by the state or by non-state agents which the state is unable or unwilling to control. The phrase “in general” differentiates persecution which occurs in the ordinary course of things from isolated incidents of persecution. It does not require the persecution to affect any particular percentage of the population. He said:

I do not read the words “there is in general … no serious risk of persecution of persons, …” as meaning “there is no serious risk of persecution of persons in general”, and therefore as intended to permit the designation of a state which systematically carries out or tolerates persecution provided that it is limited so as not to affect the large majority. I read the words “in general” as intended to differentiate a state of affairs where persecution is endemic, ie it occurs in the ordinary course of things, from one where there may be isolated incidents of persecution.

Lord Toulson was influenced by the fact that persecution within the meaning of the Refugee Convention is often directed towards minorities. He considered that there were three objections to using a percentage of the population test for deciding whether there is “in general” a serious risk of persecution or not:

– The absence of any yardstick for determining what the percentage should be;

– Even if it were possible to identify such a percentage, it was hard to see any reason why it should make a difference whether the group represented, say, more than 20% or only 15%;

– In many minority groups, there will be no reliable way of ascertaining their total size; eg members of a persecuted sexual minority will understandably not wish to publicise their sexuality.

This is a welcome decision with wider implications beyond Jamaican cases. The percentage test rejected by the Supreme Court is presumably one that the Secretary of State has also applied in deciding whether to include every other country on the white list. The clarification of the test by the Supreme Court therefore ought to lead to a review of the inclusion of every country that is currently on the list.

Lee Jackson

27 March 2015