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

A designation under section 94 of the Nationality, Immigration and Asylum Act 2002 is lawful unless the evidence clearly establishes a serious and general risk of persecution affecting a significant number of the relevant population. The Secretary of State has a wide discretionary margin in making that assessment.

Designation does not, however, make country evidence immaterial to an individual claim. A claim cannot be certified as clearly unfounded if there is a reasonable doubt that it may succeed. On review, the court asks the same question. Where the evidence makes a real risk of persecution or an Article 3 breach rationally open to the tribunal, the certificate must be quashed.

The appellant, a Gambian national and member of an opposition party, challenged two decisions by judicial review. The first added Gambia, in respect of men, to the designated-state list under section 94 of the Nationality, Immigration and Asylum Act 2002. The second certified his asylum and human-rights claim as clearly unfounded, removing his in-country right of appeal.

He relied on his political activities, prior arrests and alleged mistreatment, and material suggesting that he faced a sedition charge and a risk of ill-treatment if detained. Beatson J dismissed both challenges on 26 February 2010. The appeal concerned whether the designation was lawful and whether the individual claim was properly certified.

Disposition

1. The appeal was allowed in part. The challenge to Gambia’s designation failed, but the certificate that the appellant’s claim was clearly unfounded was quashed.

2. Under section 94(5) of the Nationality, Immigration and Asylum Act 2002, the Secretary of State has a wide margin of discretion when deciding whether a state may be designated. Following R (Javed and others) v SSHD [2001] EWCA Civ 789, a court does not conduct a rigorous reassessment of the evidence. Illegality requires evidence clearly establishing a serious risk of persecution which is a general feature of the country and affects a significant number of the relevant population.

3. The designation of Gambia applied to adult males, not male children. The natural reading of the Order did not extend its scope to children. Evidence concerning the persecution or maltreatment of children therefore did not assist this appellant’s challenge.

4. Although the evidence disclosed troubling human-rights abuses, the Secretary of State was entitled to conclude that they were not so systemic or general among adult males that designation was legally precluded. The first ground of appeal was dismissed.

5. Designation did not make the general country evidence irrelevant to certification of an individual claim. The court applied the approach in ZT (Kosovo) v SSHD [2009] UKHL 6: where the relevant primary facts are not disputed, the reviewing court must ask the same question as the Secretary of State. If there is any reasonable doubt that the claim may succeed, it is not clearly unfounded. Where primary facts are disputed, certification is still less readily justified unless no tribunal could find the claimant credible.

6. There was evidence capable of supporting the appellant’s contention that he faced a sedition trial arising from opposition activity. A tribunal could rationally conclude that detention might expose him to treatment contrary to Article 3 of the Human Rights Convention. The claim was therefore not bound to fail. The certificate was quashed.

• Court of Appeal (Civil Division) — by [2011] EWCA Civ 121, dismissed the appeal against designation but allowed the appeal against certification and quashed the certificate.

• Administrative Court (Queen’s Bench Division) — Beatson J dismissed both grounds of judicial review on 26 February 2010.