Brown, R (on the application of) v Secretary of State for the Home Department

Designation of a country as generally safe does not alter the statutory test for certification under section 94 of the Nationality Immigration and Asylum Act 2002. The question remains whether the claim is clearly unfounded.

Effective protection is assessed by asking whether the state is both able and willing to provide protection which reasonably addresses the particular risk. The standard is practical and does not require a guarantee of safety. Targeted threats to informers or suspected informers require careful, individual assessment and cannot be resolved by general evidence about law and order. Relocation may provide sufficient protection where the evidence supports that conclusion.

The claimant, a Jamaican national, sought judicial review of the Secretary of State’s refusal of his asylum and human rights claims and certification under section 94 of the Nationality Immigration and Asylum Act 2002.

He alleged that a Jamaican gang had threatened him after he witnessed a murder and suspected that he was an informer. The Secretary of State accepted the factual basis for considering the claim but concluded that protection was available, including through relocation within Jamaica. The claimant also gave a materially different account during an earlier asylum claim made under another name, raising a substantial credibility issue.

The central issues were whether the certification decision was lawful, whether effective protection existed for the alleged risk, and whether relocation was reasonable.

1. The application for judicial review was dismissed. Jamaica’s designation under section 115 of the Nationality Immigration and Asylum Act 2002 altered how the clearly-unfounded test was applied, but did not alter the test itself. The relevant question under section 94 remained whether the claim was clearly unfounded, applying the guidance in ZL and others v Secretary of State for the Home Department [2003] EWCA CIB 25.

2. The effective-protection principles in Horvath v Secretary of State for the Home Department [2001] 1 AC 489 applied. The state’s protection need not eliminate every risk or guarantee safety. It must reflect a practical standard, assessed by reference to the state’s ability and willingness to provide protection against the relevant harm.

3. Targeted attacks on informers or suspected informers may require different consideration from isolated or random attacks on an unpopular minority. The state’s ability and willingness to protect remained the test, but the particular risk required specific evidence. There was no general rule that Jamaica lacked sufficient protection for informers or suspected informers.

4. The Secretary of State had not shown sufficient evidence of specific witness-protection measures to justify protection in Kingston if relocation were left out of account. However, the claimant’s own evidence showed that Ocho Rios had greater security and police patrols, and he had not sought police protection there. On the evidence of this particular case, the Secretary of State was entitled to conclude that relocation within Jamaica offered sufficient protection.

5. The alternative credibility issue also justified dismissal. The claimant had previously given a wholly different account of gang violence and later accepted that account was false. The court considered that any tribunal would face insuperable credibility difficulties and that judicial review should, in any event, be refused as a matter of discretion because the claim had no realistic prospect of success.