R (on the applications of Brown (Jamaica)) v Secretary of State for the Home Department [2015] UKSC 8

A Jamaican homosexual challenged the designation of Jamaica as a safe state under section 94(4) of the 2002 Act. The Supreme Court held that a state with systematic persecution of LGBT people, a substantial identifiable section of the community, could not be designated as having 'in general' no serious risk of persecution.

Facts

The respondent, a Jamaican citizen, arrived in the UK on a visitor’s visa in May 2010 and claimed asylum in October 2010 on the basis that he was a homosexual who feared persecution if returned to Jamaica. He was detained under the Detained Non-Suspensive Appeals (DNSA) fast-track process, which applied only to claimants from states designated under section 94(4) of the Nationality, Immigration and Asylum Act 2002. Jamaica had been added to the list of designated states by the Asylum (Designated States) Order 2003.

The respondent challenged by judicial review both the designation of Jamaica and his detention. The Home Secretary did not certify his claim as clearly unfounded, and on 4 February 2011 the Tribunal upheld his claim that he was at real risk of persecution if returned to Jamaica. At first instance the deputy judge dismissed the claim. The Court of Appeal, by a majority, held the designation of Jamaica was unlawful. The Home Secretary appealed to the Supreme Court.

Issues

The central question was whether the statutory description in section 94(5) of the 2002 Act — that ‘there is in general in that State … no serious risk of persecution of persons entitled to reside in that State’ — could properly apply to Jamaica, where: (a) there is a serious risk of persecution of gays and other members of the LGBT community; (b) that community is estimated to amount to between 5% and 10% of the population; and (c) there is no such risk affecting the remainder of the population.

Arguments

Appellant (Secretary of State)

Mr Eadie QC submitted that section 94(5) required a global judgment about general risk to those entitled to reside in the state rather than risk to any particular minority group. Any other construction would prevent designation whenever any identifiable group was at risk, undermining the scheme. Minority groups remained protected because designation did not automatically result in certification as clearly unfounded; the Home Secretary still had to consider each case individually under section 94(3). The legislative purpose was administrative efficiency for the majority while preserving protection for the minority. Section 94(5A)-(5C), being later amendments, could not aid construction of section 94(5).

Respondent

Mr Knafler QC argued that designation materially affected applicants because they would normally be detained and fast-tracked, even if not ultimately certified. Designation ‘changes the complexion of the analysis of the claim’. A state with systematic persecution of a substantial recognisable section of the community could not be said in general to be free of serious risk of persecution.

Judgment

The Supreme Court (Lord Toulson giving the leading judgment, with whom Lady Hale, Lord Sumption and Lord Carnwath agreed; Lord Hughes concurring with qualifications) dismissed the appeal.

Lord Toulson interpreted section 94(5) in its natural meaning to refer to countries where citizens are free from any serious risk of systematic persecution, whether by the state or non-state agents the state cannot or will not control. He rejected the reading that the section permits designation of a state which systematically tolerates persecution provided it does not affect the large majority. The words ‘in general’ differentiate endemic persecution from isolated incidents.

The Court considered R (Asif Javed) v Secretary of State for the Home Department [2002] QB 129, in which Lord Phillips MR stated that for a risk to be serious it would have to affect ‘a significant number of the populace’. Lord Toulson held that this did not mean that an affected minority must exceed an unspecified percentage of the total population; rather, the affected persons must be sufficient in number to form a recognisable section of the community.

Lord Toulson rejected any numerical threshold for several reasons: there is no yardstick for choosing a percentage; even if there were, it is hard to see why marginal differences should matter; and reliable data on minority size will often be unavailable, particularly where disclosure of identity carries persecution risks. Persecution within the meaning of the Refugee Convention is by its nature often directed at minorities.

He endorsed Black LJ’s observation that designation ‘changes the complexion of the analysis of the claim’, because designated-state claimants are typically detained and fast-tracked. While the later subsections 94(5A)-(5C) did not affect construction of section 94(5), it was ‘of interest’ that Parliament had provided a means of designating states only in respect of particular descriptions of person.

Lord Hughes agreed in the result but qualified the reasoning. He emphasised that designation is not barred simply because some identifiable group of persons may face risk. A systemic risk applying to an identifiable grouping is a necessary but not always sufficient basis for non-designation. Examples might include small political or religious groupings whose claims should succeed individually without preventing designation of an otherwise safe state. Whether risk exists ‘in general’ is a matter of degree on which reasonable people may differ, and the Home Secretary should be afforded flexibility. However, on the facts of this case the risk applied to ‘an entire section of the community, defined by sexual orientation and substantial in numbers’, and only one conclusion was possible: Jamaica could not properly be designated.

The Court also rejected reliance on Hansard material, agreeing with the Court of Appeal that section 94(5) is not ambiguous and that the statements relied upon lacked the necessary clarity under Pepper v Hart.

Implications

The decision clarifies that designation of a state under section 94(4) is precluded where there is systematic persecution of a recognisable and substantial section of the community defined by immutable characteristics, even if the majority of the population is unaffected. The phrase ‘in general’ does not equate to ‘universal’ or ‘a majority’; it distinguishes endemic from isolated persecution.

The judgment confirms that designation carries genuine consequences for claimants — principally detention and fast-tracking under the DNSA process — and is not legally inert merely because individual certification under section 94(3) remains a separate step. This matters for asylum and human rights claimants from designated countries and for legal practitioners advising them, because the procedural disadvantages of designation are significant even where the substantive claim is not certified.

The decision does not lay down a numerical threshold or rule that any identifiable at-risk group prevents designation. As Lord Hughes made clear, smaller or unusual groupings may still leave a state properly designable, with individual claims considered separately. The Home Secretary retains a margin of judgment, subject to public law review. The case is significant in the wider legal context because it strengthens the protection afforded to persecuted minorities, particularly LGBT communities, when assessing ‘safe country’ designations, while preserving the legitimate administrative purpose of the designation scheme.

Verdict: Appeal dismissed. The designation of Jamaica as a safe state under section 94(4) of the Nationality, Immigration and Asylum Act 2002 was unlawful, as Jamaica could not be said to be a state in which ‘in general’ there was no serious risk of persecution given the systematic persecution faced by its substantial LGBT community.

Source: R (on the applications of Brown (Jamaica)) v Secretary of State for the Home Department [2015] UKSC 8