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

A decision to include a country on the statutory safe-country list is amenable to judicial review on Wednesbury grounds. The Secretary of State is entitled to a considerable margin of appreciation, but the court may grant permission where the evidence arguably establishes a serious and general risk of persecution or human-rights violations. At the permission stage, the claimant need only show an arguable case. Where the statutory certification provisions contain two cumulative requirements, failure to establish one requirement does not remove the right of appeal unless both are satisfied.

The claimant challenged the Secretary of State’s refusal of his asylum and human-rights claims and the inclusion of Gambia on the safe-country list under the Nationality Immigration and Asylum Act 2002. He also challenged certification of his claims as clearly unfounded. Permission had been refused on the papers by HHJ Vosper QC, sitting as a deputy High Court judge, on 24 July 2009. The claimant renewed the application orally after having been returned to Gambia. The central issues were whether continuation of Gambia’s designation was arguably irrational and whether the certification challenge was arguable.

1. The renewed application for permission was granted only in relation to the challenge to Gambia’s inclusion on the safe-country list. The certification ground was not arguable.

2. Under section 94 of the Nationality Immigration and Asylum Act 2002, certification of an asylum or human-rights claim as clearly unfounded requires the relevant statutory conditions to be satisfied cumulatively. As both aspects had to be established before the appeal right could be removed, it was sufficient at this stage that the White List issue was arguable.

3. Following R (Javed & Ors) v SSHD [2002] QBR 129, the Secretary of State’s decision to include a country on the White List was reviewable for Wednesbury unreasonableness. The Secretary of State was entitled to a considerable margin of appreciation. A claimant would ultimately have to show that the evidence clearly established a serious risk of persecution in the country and that the risk was a general feature affecting a significant number of the population.

4. The court was concerned that the decision letter pre-dated the later United States Department of State country report. The material relied upon by the claimant included evidence of persecution of opposition members, disregard of human rights and problems concerning the judiciary. In light of that material, it was just arguable that continuation of Gambia’s inclusion was unreasonable.

5. Because of the importance of the issue to Gambian asylum seekers, the substantive judicial review was directed to be heard by a High Court judge rather than a deputy judge. The application for a mandatory order and costs were reserved to the substantive hearing.

Permission had previously been refused on the papers by HHJ Vosper QC, sitting as a deputy High Court judge, on 24 July 2009. The present court granted renewed permission only on the White List issue.