JB (Jamaica) Case ID UKSC 2013/0162 concerns the persecution of gay people and throws up the thorny question whether the Secretary of State for the Home Department (SSHD) is entitled by section 94(5) of the Nationality, Immigration and Asylum Act 2002 (NIAA) to add Jamaica to the list of states designated in section 94(4) when only a group forming a small part of the population is at risk of persecution? The SSHD’s appeal, against the quashing of Jamaica’s listing, is fixed for hearing on 26 November 2014 in the UK Supreme Court and Liberty is intervening. A panel of justices consisting of Lady Hale DPSC and Lords Sumption, Carnwath, Hughes and Toulson JJSC has been allocated to decide this crucial question. In June 2013, the Court of Appeal (Pill, Moore-Bick and Black LJJ) held by majority that since it was not in dispute that homosexuals were routinely persecuted in Jamaica, it was unlawful for the SSHD to include Jamaica in the list of states designated as generally not presenting any serious risk of persecution to those entitled to reside within them.
After spending five months in the UK, in October 2010 JB claimed asylum after overstaying his visitor’s visa. He said that he would be violently persecuted in Jamaica because he was gay. A week after he claimed asylum, JB was detained under the Detention Fast Track (DFT)/Detention Non-Suspensive Appeals (DNSA) policy which allows the detention of those whose claims are capable of being determined quickly so that they can be removed promptly if they fail. When JB’s claim was refused and his appeal was pending, he remained in detention for a month or so. But the First-tier Tribunal (FtT) removed his case from the fast track and he was consequently released from detention. In February 2011, the FtT allowed his appeal and upheld his claim for asylum.
Article 3 of the Asylum (Designated States) Order 2003 added Jamaica to the list of designated states to which asylum seekers would presumptively be returned pending any appeal. Its inclusion in that list was reviewed and confirmed in April 2007 and at that time the SSHD maintained that:
The discrete groups identified … 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.
While he was still in detention, JB started proceedings for judicial review in November 2010 whereby he challenged the SSHD’s decision to include Jamaica in the list of states set out in section 94(4) of the NIAA. From his point of view, of course, the risk of homosexuals being violently persecuted is significant enough to prevent Jamaica being generally safe. He also claimed damages for false imprisonment on the grounds that his claim for asylum was not capable of being determined quickly in accordance with the DFT/DNSA policy and because in any event the policy had not been properly applied in his case.
Prior to the Court of Appeal’s ruling, at  EWHC 1660 (Admin) Nicholas Paines QC dismissed JB’s claim for judicial review of the SSHD’s decision to include, and thereafter retain, Jamaica among the states designated as generally not presenting any serious risk of persecution to those entitled to reside within them. The judge similarly dismissed the claim for damages for false imprisonment vis-à-vis the period during which JB was detained pending the determination of his claim for asylum. But, on that point, the Court of Appeal unanimously allowed JB’s appeal against the judge’s dismissal of his action for damages for false imprisonment.
Non-Suspensive Appeals and Certification
Section 94 of the NIAA provides a certification process which removes the right for an in country appeal on certain asylum and/or human rights claims (section 84(1)). The power can only be used in cases where the claim is considered to be “clearly unfounded” and strict criteria must be met before certifying. The list of designated states for certification is, of course, housed in section 94(4) . Under the provisions of the NIAA, when refusing an asylum and human rights claim from persons entitled to reside in one of the listed states, the SSHD is required to certify the claim, unless she is satisfied that the claim is not clearly unfounded. Where an asylum and/or human rights claim is certified as “clearly unfounded” under section 94, the applicant cannot appeal whilst in the UK: this applies to decisions listed in section 82 (2)(c), (d), and (e) under section 92 (2).
The Court of Appeal
The Designation of Jamaica
The majority (Pill and Black LJJ at  EWCA 666) took the view that there was a serious risk of persecution on the basis of sexual orientation of an entire part of the Jamaican population and so it could not be said that homosexuals were safe in Jamaica. Moore-Bick LJ, who at para 20 expressed his preference for dismissing the appeal, dissented by saying that it was not irrational for the SSHD to conclude that in general there was no serious risk of persecution of persons who were entitled to reside in Jamaica because the proportion of homosexuals and others defined by sexual orientation in the population of that country was not so great.
Conversely, Black LJ held that even making full allowance for the margin of appreciation to be afforded to the SSHD, the fact that all gay people were at risk and the failure of the state to offer sufficient protection made it unlawful for Jamaica to have been designated as not presenting a serious risk of persecution to them. Concurring with her ladyship, Pill LJ held that in the instance of a state such as Jamaica where there was a serious risk of persecution of an entire section of the community, which was defined by sexual orientation and possessed strength in numbers, could not be considered a state where in general there was no serious risk of persecution.
The SSHD did not quarrel with the conclusion that as a whole, gay, lesbian, bisexual and transgender inhabitants of Jamaica were at serious risk of persecution and contrary to the 2007 position her 2011 Operational Guidance Note (OGN) accepted that Jamaica has “an aggressively homophobic culture.” The 2012 OGN explained further that “[a]s gay men, lesbians and bisexuals in Jamaica may be considered to be members of a particular social group, they should be granted asylum.” Although it could not exactly be said what proportion of the total population they represented, it was appropriate to assume a figure of 10 per cent which corresponded to a quarter of a million individuals – a significant number indeed. This approach was essentially at one with Javed  EWCA Civ 789. In that case it was held that in light of the treatment of Ahmadis and women it was unlawful to include Pakistan in section 94’s predecessor, the Asylum (Designated Countries of Destination and Designated Safe Third Countries) Order 1996 which designated Pakistan as a country in respect of which there was in general no serious risk of persecution. Lord Philips MR (as he then was) held at para 57 that “[f]or a risk to be serious it would have to affect a significant number of the populace.” JB’s counsel argued that where persecution is systematic, it need only be applied to 1 per cent of the population for persecution to be a feature or characteristic of that state preventing designation. Since the test in Javed was not only quantitative but also qualitative he also argued that persecution of an entire section of the community, substantial in number and defined by sexual orientation, prevented a state from claiming that in general there was no serious risk of persecution.
MD (Gambia)  EWCA Civ 121 involved a judicial review challenge to the Gambia’s designation by the SSHD for the purposes of section 94(4) NIAA because human rights were generally abused and people were wrongfully detained beyond the limit set under the law, arrests were politically motivated, detainees were tortured, prison conditions were overcrowded and insanitary, the judiciary was not independent and homosexual conduct was criminalised etc. Whilst this made a “bleak reading” and abuses were widespread, noting that for persecution to a “general feature” required that it should affect a significant number of people, Elias LJ (with whom Ward and Tomlinson LJJ concurred) nevertheless held that the SSHD was entitled to conclude that the human rights infringements were not so systemic or general as to compel the conclusion that the Gambia could not as a matter of law properly be included among the list of designated countries.
Although assistance could be gained from Elias J’s approach, Black LJ expressed doubts about whether the actual decision as regards the designation of the Gambia – which turned on the particular facts about that country available to the SSHD – helped the Court in considering the designation of Jamaica and her ladyship therefore said:
41. … In contrast to the diffuse problems in Gambia, in Jamaica the situation is much more focussed and, it seems to me, clearer. It is accepted that one whole sector of society, the LGBT community, is at serious risk of persecution … [which] includes violence, including rape and murder, and in general there is no effective protection provided by the authorities.
Black LJ’s approach was essentially at one with the way Lords Philips formulated the question in Javed and she held that:
41. … Is the state of affairs “a general feature” in Jamaica? Nobody has suggested that it is confined to a particular geographical area in Jamaica so we can take it that it is generalised geographically. For persecution to be a general feature it does not have to be generalised amongst the entire population as opposed to affecting a particular identified sector of it; Javed was concerned with persecution of particular groups in Pakistan. The only question therefore is whether persecution throughout Jamaica of a group making up 10% of the population should be described as “a general feature” of Jamaica or, to use Elias LJ’s words in the Gambian case, whether the persecution is sufficiently systematic (or systemic) to be described as a general feature.
42. These alternative formulations provide useful insights but ultimately it is to the words of the Act that one must return. The question is whether the Secretary of State was entitled to conclude that “there is in general [in Jamaica] no serious risk of persecution of persons entitled to reside” there. Bearing in mind the proportion of the population affected, the fact that the entirety of that sector of the populace is at risk, and the failure of the state to offer sufficient protection, even making full allowance for the margin of appreciation to be afforded to the Secretary of State, I do not consider that she was. It follows that in my view Jamaica should not have been designated.
Sharing Black LJ’s views and echoing the landmark decision in HJ (Iran)  UKSC 31 where Lord Hope DPSC (as he then was) at para 11 defined the group by “the immutable characteristics of its members’ sexual orientation and sexuality”, Pill LJ held at para 57 that a state in which there is a serious risk of persecution for an entire part of society “is not a state where in general there is no serious risk of persecution.” Pill LJ similarly rejected the argument that that it makes no difference whether or not a state is designated because, in either case, the SSHD must give anxious scrutiny to a claim. His lordship reasoned at para 57 that permitting a relaxed approach to designation would amount to defeating the underlying statutory intention of speeding up immigration procedures and that care “in making the decisions, including designation” could not be sacrificed for efficiency.
The Court rejected the conclusion that owing to the absence of risk to the heterosexual community in general there is no serious risk in section 94(5)(a) terms. The reason, indeed, was that there was a serious risk of systemic persecution of an entire section of the community of significant size and defined by its immutable characteristics. Pill LJ likewise rejected the argument that the repetition of the words “in general” in section 94(5)(b) gave it a broader meaning in section 94(5)(a).
In addition to the designation issue, as regards which the SSHD’s appeal is pending in the Supreme Court, the Court of Appeal’s analysis of JB’s detention is also quite illuminating.
Applying Saadi  UKHL 41, Moore-Bick LJ held that section 62 NIAA conferred upon the SSHD the power to detain pending a decision whether to give directions for removal but for its exercise to be lawful it must not be arbitrary and must, in particular, be for a short period of time in reasonable conditions. His lordship said at paras 21–22 that in practice detention must comply with the relevant policies and that in the present case the DFT/DNSA policy turned on identifying claims that were capable of fair and sustainable determination within approximately two weeks.
The Court went on to hold at para 28 that form ASL.3211, whilst a valuable tool in most cases, used for JB’s initial screening interview “was not designed with the DFT/DNSA policy primarily in mind.” Moreover, ASL.3211 did “not direct the interviewing officer’s attention to the need to investigate the nature and circumstances of the claim in a way that would enable an informed assessment to be made of the likelihood of being able to make a fair and sustainable decision within about two weeks.” The net effect of this was that the officer made no attempt to ensure that the detailed assessment required by the policy was carried out and therefore the SSHD failed to comply with her own policy and JB’s detention was unlawful.
As held in Lumba  UKSC 12 and Kambadzi  UKSC 23 a failure properly to comply with a policy relating directly to the exercise of a power to detain is sufficient of itself to render the detention unlawful. In relation to the remaining question of whether JB’s claim could ever have been regarded as one in which a fair and sustainable decision could have been made within about two weeks, Moore-Bick LJ reasoned that:
29. … Given the nature of the appellant’s claim, I find it difficult to see how it could. Homosexuality is a characteristic that cannot be reliably established without evidence from sources external to the claimant himself. On the face of it, therefore, the appellant did need additional evidence to support his claim and since some of that evidence was likely to be available only in Jamaica or elsewhere abroad, it was likely that he would need additional time in order to obtain it. A failure to allow him that time was likely to lead (as in the event it did) to a decision that was neither fair nor sustainable.
Equally, at para 30 the Court rejected the SSHD’s suggestion that JB could have gathered the necessary evidence in the five months he had spent in the UK before making his claim because such an approach failed to take proper account of the circumstances, and no reasonable person in possession of all the information could have been satisfied that a fair and sustainable determination could be made within about two weeks.
Only earlier this year, in JR (Jamaica)  EWCA Civ 477, the Court of Appeal (Kay and Lewison LJJ, Sir Stanley Burnton, see here) unanimously dismissed the SSHD’s appeal in a 29 year old Jamaican homosexual’s case – known only as “JR” – who had murdered Abdul from Somalia who refused to pay a £10 debt for cannabis. In the first instance, the FtT allowed JR’s appeal on refugee and Article 3 ECHR grounds because it found that he is homosexual. The Upper Tribunal had similarly dismissed the SSHD’s appeal in August 2013.
But the Court of Appeal held at para 17 that JR’s case turned “on its specific and quite unusual facts” and “should not be seen as providing more general succour to others convicted of grave crimes.” JR was convicted and sentenced to serve at least eight years and two months’ imprisonment and recommended for deportation.
He spent eleven years in custody and in addition to the Court of Appeal’s majority decision in the present case, JR’s case further demonstrates that the government’s appeal in the present case is doomed to fail.
Anyway, Jamaica’s listing is totally out of order because it is undisputed that the gay community there is persecuted.
In fact, the country “holds the crown for being the worst place in the Americas to be gay” and it is therefore impossible to credibly argue that there is in general no serious risk of persecution of persons entitled to reside there.