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

A designation of a state as generally safe under section 94 of the Nationality, Immigration and Asylum Act 2002 is reviewed for legality, with enhanced scrutiny where human rights are engaged, but the Secretary of State retains a considerable margin of appreciation. The challenge must clearly establish a serious and general risk of persecution.

For certification, a claim is clearly unfounded only where, after conscientious consideration of the material, it has no realistic prospect of success. Any reasonable doubt that the claim may succeed prevents certification. The court dismissed both challenges.

The claimant, a Gambian national and member of the United Democratic Party, sought judicial review of two decisions by the Secretary of State. The first designated The Gambia as a safe state for men under section 94(4) of the Nationality, Immigration and Asylum Act 2002. The second certified his asylum and human rights claims as clearly unfounded under section 94.

The claimant had been arrested and detained in The Gambia and was wanted in connection with a court summons. He had been removed before the renewed permission hearing. The issues were whether the designation was unlawful and whether his individual claims were clearly unfounded.

1. Safe-state designation. The designation issue was one of legality, although the statutory language was imprecise and required the court to allow the Secretary of State a considerable margin of appreciation. The court was entitled to apply enhanced scrutiny, examine whether the decision rested on up-to-date material, and consider whether later developments made continued designation unlawful. The Secretary of State was also required to keep the designation under regular review.
2. The evidence concerning The Gambia was troubling and included human-rights abuses, poor prison conditions and arbitrary detention. However, it also showed improvements in relevant areas. The evidence did not clearly establish a serious and general risk of persecution of men, or that removal of men would generally contravene Convention obligations. The designation and certification founded on it therefore remained lawful.
3. The decisions in Javed, [2001] EWCA Civ 789, [2002] QB 129, Husan, [2005] EWHC 189 (Admin), and Balminder Singh, [2001] EWHC 925 (Admin), confirmed the breadth of the margin. The more serious and extensive conditions in the earlier cases did not exist on the evidence concerning The Gambia. The approach in TR (Sri Lanka), [2008] EWCA Civ 1459, concerned fresh claims and did not govern review of a general safe-state designation.
4. Certification. The question whether a claim is clearly unfounded requires consideration of how it would be treated before an immigration judge. Under Thangarasa, [2002] UKHL 36, certification is permissible where the decision-maker is reasonably and conscientiously satisfied that the allegations clearly fail. Under ZT (Kosovo), [2009] UKHL 6, where primary facts are undisputed, the claim has only one rational outcome if it is clearly unfounded; any reasonable doubt about success prevents certification.
5. The claimant’s accepted history showed arrests and detention, but no evidence that membership of the UDP alone placed him at risk, that he was to be charged with sedition, or that he faced a real risk of torture. The more recent material did not materially alter the overall position, apart from prison conditions. The certification challenge therefore failed. The claim was dismissed. A standard costs order was made, and permission to appeal was refused.

The judgment itself records that permission to apply for judicial review was initially refused on the papers by HHJ Vosper QC. The renewed application was later granted on the safe-state issue by HHJ Bidder QC, and permission on the certification issue was granted by Hallet LJ on 17 December 2009. The Administrative Court then dismissed both grounds.