The Home Secretary’s appeal to the Supreme Court, in relation to whether Jamaica should be included on the list of states designated in section 94(4) of the Nationality, Immigration and Asylum Act 2002 (NIAA), was finally dismissed last week. Lady Hale, Lord Sumption, Lord Carnwath, Lord Hughes and Lord Toulson held that since homosexual, bisexual and transsexual persons living in Jamaica were at risk of persecution because of their sexual orientation, the Home Secretary had acted unlawfully by designating Jamaica, under section 94(5)(a) of the NIAA, as a state in which there is in general no serious risk of persecution of persons who are entitled to reside there. Back in June 2013, the Court of Appeal (Pill, Moore-Bick [dissenting] and Black LJJ, see here) held by majority that since it was not in dispute that homosexuals were routinely persecuted in Jamaica it was unlawful for the Home Secretary 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.
In the present case, having spent five months in the UK, in October 2010 Brown 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, Brown 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 Brown’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. Jamaica’s inclusion in that list was reviewed and confirmed in April 2007 and at that time the Home Secretary 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.
Although it cannot exactly be said what proportion of the total Jamaican population the gay, lesbian, bisexual and transsexual community represented, it is appropriate to assume a figure of 10 per cent which corresponds to a quarter of a million individuals – a significant number indeed.
The inclusion of Jamaica in the states in section 94(4) of the NIAA had the effect that asylum or human rights claims from persons entitled to reside in Jamaica were required to be certified by the Home Secretary as “clearly unfounded” unless she was satisfied that this was not the case. Consequently, appeals mounted by persons against immigration decisions in relation to “clearly unfounded” claims needed be brought from outside the UK.
While he was still in detention, Brown started proceedings for judicial review in November 2010 whereby he challenged the Home Secretary’s decision to include Jamaica in the list of states set out in section 94(4) of the NIAA. For him, the risk of homosexuals being violently persecuted was 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 the policy had not been properly applied in his case.
Prior to the Court of Appeal’s decision to allow Brown’s appeal on both grounds, Nicholas Paines QC dismissed Brown’s claim for judicial review of the Home Secretary’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 deputy judge similarly dismissed the claim for damages for false imprisonment vis-à-vis the period during which Brown was detained pending the determination of his claim for asylum. But, on that point, the Court of Appeal unanimously allowed Brown’s appeal against the judge’s dismissal of his action for damages for false imprisonment. Unlike the decision on designation, the Court of Appeal’s finding on false imprisonment was not challenged in the Supreme Court
The Supreme Court
The judgment of Lord Toulson (with whom Lady Hale, Lord Sumption, Lord Carnwath concurred) mentioned the authorities of Javed  EWCA Civ 789 and MD (Gambia)  EWCA Civ 121. In Javed, 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.” The Supreme Court said at para 18 that Lord Phillips did not expand upon what he meant by a significant number of the populace but Lord Toulson doubted that Lord Phillips was imposing a stringent test about numbers and percentages. Even if he had been imposing a strident test, “he did not spell it out and it would have been unrelated to the argument.”
MD (Gambia)  EWCA Civ 121 concerned a judicial review challenge to the Gambia’s designation, for the purposes of section 94(4) NIAA, because human rights in that country were generally abused. 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 be 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 Home Secretary was entitled to conclude that the contended 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.
Lord Toulson observed that in MD (Gambia) the court did not make a reference to the number of homosexuals in Gambia or their percentage as a proportion of the community. A misconceived attempt, in the form of an elaborate fivefold argument, to get the Supreme Court to buy into the dissent expressed by Moore-Bick LJ in the Court of Appeal was rejected by Lord Toulson who instead held at para 21 that on a natural construction section 94(5) refers “to countries (or parts of countries) where its citizens are free from any serious risk of systematic persecution, either by the state itself or by non-state agents which the state is unable or unwilling to control.” Accordingly, the phrase “in general” differentiates isolated incidents of persecution from routine persecution occurring “in the ordinary course of things.” Moreover, no requirement exists for the persecution to affect any particular percentage of the population.
Influenced by Husan  EWHC 189 (Admin), Lord Toulson held at para 22 that the persecution must apply to a recognisable section of the community and be a general feature of life in the country concerned. The approach accorded with common sense because the persecution of minorities made up the bulk of asylum and human rights claims. As Lord Toulson explained, imposing a percentage threshold is objectionable on several scores: it is impossible to determine the threshold; it is irrelevant whether a group just exceeds or just falls below the threshold; and the total size of many minority groups may not be reliably ascertained. In a state where people are persecuted on the basis of sexual orientation, people do not disclose their true sexual preference and this makes it impossible to know the true population of the gay community. Neither Javed nor MD (Gambia) held otherwise and notably, even in a free society, sexuality remains a personal matter and some gay people may opt not to go public about their sexual orientation.
The court was unimpressed by the Home Office’s argument that it makes little or no difference to members of minority groups who are exposed to a serious risk of persecution whether the state has been designated under section 94(4). In the present case, Brown had been detained as a claimant from a designated state but the Home Secretary did not certify his claim as clearly unfounded. Lord Toulson much preferred the argument that the purpose of designation is that applicants from designated countries will normally be detained and fast tracked and he endorsed Black LJ’s remark in proceedings below that the designation of a state:
changes the complexion of the analysis of the claim.
Lord Toulson was content to accept that generally speaking an amendment cannot affect the construction of an Act as originally enacted. He also held that the attempt to rely on Hansard material – including ministerial statements made during the passage of earlier legislation, the Asylum and Immigration Act 1996, and in the debate on the motion that the draft statutory instrument which added Jamaica to the list of designated states should be approved – to make Brown’s case was misjudged. His Lordship agreed with most of what was said in the Court of Appeal on the point but he preferred not to enunciate a:
26. … firm rule that the Hansard record of a ministerial statement in a debate on predecessor legislation can never be admissible in circumstances where the wording of the later Act is materially identical.
Concurring in the result that in the context of this case it was impossible to lay down any numerical threshold for a defined percentage of the population, Lord Hughes held at para 30 the phrase “in general” could not be taken to mean that it is possible to designate a state as safe so long as the population as a whole is not at risk of persecution because such an approach ran the risk of substituting “universal” for “general”.
However, in distinction to the rest of the justices, Lord Hughes reasoned that the Home Secretary should not be prevented from designating a state under section 94(4) of the NIAA merely because some form of grouping or a recognisable section of the community may suffer persecution when in general the state concerned is free from persecution. He felt that it was always possible to categorise the individual into some form of grouping or a “recognisable section of the community” by reason of which she/he is at risk. Lord Hughes therefore took the view that “to treat the existence of risk to a ‘recognisable section of the community’ as a bar to certification however small the section will in effect be in danger of preventing certification of any state where there is any risk of persecution to anyone.”
On the one hand, Lord Hughes dismissed the appeal because the threat to the gay, lesbian, bisexual and transsexual community was only properly describable as a “general” risk in Jamaica. Yet, on the other hand, he also held that:
34. … It is not a reason to substitute for the judgment committed to the Home Secretary a bar to designation whenever the risk can be described as systemic, in the sense that it applies to members of an identifiable group. That, as it seems to me, is to risk re-defining the expression “in general”. Given the extra essential step of individual consideration of whether or not to certify a claim as clearly unfounded, it is entirely appropriate to allow the Secretary of State a degree of flexibility in considering the manifold different political and social situations which may obtain in different foreign states; that is the clear purpose of the term “in general” in the statute.
Despite the fact that by claiming asylum, asylum seekers must give up rights that we take for granted (such as liberty and privacy), it is quite unfortunate that they are seen as parasites and liars. It is not in doubt that the potential to abuse the concept of a well-founded fear of persecution is great.
But it is also the case that the potential for error arising out of ignorance and prejudice is much greater, if not limitless. We can only pray that better sense will prevail but in all honesty it will take more than a mere Supreme Court ruling to break the entrenched culture of cruelty, disbelief and oppression in the Home Office.