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

When deciding whether to designate a country under section 94(5) of the Nationality, Immigration and Asylum Act 2002, the Secretary of State must assess the country’s circumstances cumulatively and generally. The inquiry is not confined to the numerical proportion of actual victims, nor does a low success rate for asylum claims establish that there is no serious risk of persecution.

The court must allow a considerable margin of appreciation, but designation is unlawful where the objective material permits only the conclusion that serious persecution or human-rights abuses are generally present. A listed-country certificate may nevertheless be lawful if, applying the objective test under section 94(2), the individual claim is clearly unfounded. The terminological reversal in section 94(3) has no measurable legal effect.

The claimant, a Bangladeshi national, challenged the Secretary of State’s refusal of his asylum and human-rights claims and the certificate preventing an in-country appeal. Bangladesh had been added to the statutory list of designated states under section 94(5) of the Nationality, Immigration and Asylum Act 2002.

He argued that the country’s human-rights conditions made the designation irrational and that his own claim could not properly be certified as clearly unfounded. The Secretary of State relied on the statutory margin of appreciation, Bangladesh’s constitutional and institutional safeguards, asylum statistics, and the possibility of internal relocation. The central issues were whether Bangladesh had lawfully been designated and whether the individual certificate was lawful.

1. The claim succeeded to the extent that the inclusion of Bangladesh in the section 94(4) list was declared unlawful. The claim was otherwise dismissed.

2. The court followed the guidance in R on the application of Javed and Others v Secretary of State for the Home Department and Another [2002] QB 129. A considerable margin of appreciation was required when reviewing the country-wide designation decision. The court was not required to conduct the particularly rigorous scrutiny appropriate to an individual decision engaging Convention rights.

3. The relevant question was whether the Secretary of State could rationally be satisfied that, in general, there was no serious risk of persecution and that removal would not generally contravene the United Kingdom’s human-rights obligations. The evidence had to be assessed cumulatively, globally and generally. The number of actual victims could not be equated with the number of persons at risk. Persecution would often be directed at minorities, and women, Hindus and active political opponents represented significant groups. The evidence also indicated risks to the population generally from arbitrary detention, brutality, torture, extortion and death.

4. The court rejected reliance on Bangladesh’s formal constitutional safeguards and treaty commitments where the objective material showed that those safeguards were not effectively implemented. Under Horvath v Secretary of State for the Home Department [2001] 1 AC 489, Convention protection required an effective system for detecting, prosecuting and punishing persecution, together with the ability and readiness to operate it.

5. The margin of appreciation did not save the designation. The objective material drove only one rational conclusion: that the statutory criteria were not satisfied in Bangladesh.

6. The unlawful designation did not automatically invalidate the claimant’s certificate. Following R (L and another) v Secretary of State for the Home Department [2003] 1 WLR 1230, the reversal of language in section 94(3) had no measurable legal effect. The Secretary of State had in substance asked the section 94(2) question. The claimant’s apparent ability to relocate elsewhere in Bangladesh provided a sufficient basis for refusing and certifying his individual claim as clearly unfounded.