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

The statutory question under section 94(5) of the Nationality, Immigration and Asylum Act 2002 concerns the general situation in the designated state. It is not answered by asking whether a particular social group, irrespective of its size, faces a serious risk of persecution. The Secretary of State may rationally designate a state where a minority faces serious persecution, provided the evidence permits the conclusion that there is generally no serious risk to the population as a whole. No precise numerical threshold follows from R (Javed) v Secretary of State for the Home Department [2001] EWCA Civ 789. Detention under detained fast-track policies remains lawful where the case is reasonably regarded as suitable for a quick decision, despite modest timetable slippage, and where later detention is supported by the tribunal’s fast-track decision.

The claimant, a Jamaican national, challenged Jamaica’s inclusion in the statutory list under section 94(4) of the Nationality, Immigration and Asylum Act 2002. He argued that the evidence concerning persecution of gay and lesbian people meant that the Secretary of State could not rationally remain satisfied that the statutory criteria for designation were met. He also challenged his detention between 20 October and 24 November 2010 under the detained non-suspensive appeals and detained fast-track processes.

The claimant’s asylum and human rights claims were initially refused, but his appeal was removed from the fast-track and he was released. The First-tier Tribunal later accepted that he was a gay man with a well-founded fear of persecution in Jamaica. The issues were whether Jamaica’s designation was unlawful and whether the claimant’s detention was inconsistent with the applicable policies or the governing principles of immigration detention.

1. Designation. The judicial review challenge to Jamaica’s designation was dismissed. The wording of section 94(5) raised the same question as that considered in Javed [2001] EWCA Civ 789: whether the evidence enabled the Secretary of State rationally to conclude that there was generally no serious risk of persecution. The court rejected any intermediate test between the statutory rationality test and the ordinary Wednesbury standard.
2. The statutory enquiry concerns the situation in the state generally, not the position of a particular social group irrespective of its size. Evidence that LGBT people, estimated at approximately 5 to 10 per cent of Jamaica’s population, faced serious persecution did not compel the conclusion that the general statutory condition was absent. Section 94(5) contained no precise numerical threshold, and the reference in Javed to a significant number of the populace was a judicial description rather than a fixed percentage. The Secretary of State could rationally conclude that approximately 90 per cent or more of the population did not face a serious risk of persecution.
3. This conclusion did not diminish the bleak evidence concerning LGBT people or the protection afforded to them under domestic and international law. The claimant’s individual claim was not clearly unfounded, but that did not determine the legality of Jamaica’s general designation.
4. Detention. The detention challenge was also dismissed. Lawful detention is not synonymous with compliance with the detained fast-track or detained non-suspensive appeals policies. Where detention falls outside those policies, a higher-level decision may be required, as explained in R (Suckrajh) v The Asylum & Immigration Tribunal [2011] EWCA Civ 938. This claimant’s detention remained within the policies.
5. The policy’s 10 to 14-day period was indicative, not rigid. The claimant’s case was not shown at the outset to require further enquiries whose necessity was reasonably foreseeable. Subsequent timetable slippage did not automatically invalidate detention, and the tribunal’s decision to retain the case in the fast-track supported continued detention until the case was removed from that process.
6. The apparent delay in the Rule 34 medical examination did not itself invalidate detention where the Secretary of State had no reason to suspect a medical problem. The medical reports supported the claimant’s account of mistreatment but did not show that he was unsuitable for detention or that the policy concerning independent evidence of torture required his release. The claim was dismissed, with costs ordered against the claimant and detailed assessment for public funding purposes.

First-instance judicial review. The judge refused permission to appeal, directing the claimant to apply to the Court of Appeal, and extended the time for seeking permission until 14 days after receipt of the transcript.