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

A state cannot lawfully be designated as generally presenting no serious risk of persecution where an entire section of its population, substantial in number and defined by the immutable characteristic of sexual orientation, faces systematic persecution without sufficient state protection.

Detention under a fast-track asylum policy requires a careful, case-specific assessment of whether the claim can be determined fairly and sustainably within the contemplated period. Failure to comply with a policy governing the exercise of the detention power renders detention unlawful. A claim requiring significant corroborative evidence, particularly from abroad, cannot rationally enter the fast track unless the necessary evidence can realistically be obtained in time.

The appellant, a Jamaican national, claimed asylum on the ground that his homosexuality exposed him to persecution in Jamaica. He was detained under the Secretary of State’s Detention Fast Track/Detention Non-Suspensive Appeals policy. His asylum claim was initially rejected, but the First-tier Tribunal removed his appeal from the fast track, ordered his release and subsequently upheld his asylum claim.

The Deputy High Court Judge dismissed the appellant’s judicial review challenge to Jamaica’s designation under section 94(4) of the Nationality, Immigration and Asylum Act 2002. He also dismissed the claim for damages for false imprisonment: [2012] EWHC 1660 (Admin).

The Court of Appeal considered whether Jamaica could lawfully remain designated despite the systematic persecution of its LGBT community, and whether the appellant’s detention complied with the fast-track policy.

1. Appeal allowed. By a majority, Pill and Black LJJ held that Jamaica’s designation under section 94(4) of the Nationality, Immigration and Asylum Act 2002 was unlawful. All three members of the court held that the appellant had been unlawfully detained.

2. A state in which an entire section of the community, substantial in number and defined by the immutable characteristic of sexual orientation, faces a serious and systematic risk of persecution cannot properly be described as a state in which there is in general no serious risk of persecution. The evidence required the LGBT community to be treated as comprising up to 10% of Jamaica’s population. That was a significant number. The persecution included serious violence, while the state failed to provide sufficient protection. Even allowing the Secretary of State the considerable margin of appreciation recognised in R (Javed) v Secretary of State for the Home Department [2001] EWCA Civ 789, Jamaica could not lawfully be designated.

3. Designation materially changes the treatment of an asylum claim. The possibility that the Secretary of State may decline to certify an individual claim as clearly unfounded does not cure an unlawful designation or justify a relaxed approach to the statutory conditions.

4. The fast-track detention policy applies only to claims capable of fair and sustainable determination quickly, ordinarily within about two weeks. It requires a careful, case-specific assessment based on all available information. A standard screening interview is insufficient where it does not investigate the nature of the claim, the evidence required and whether necessary enquiries can be completed in time.

5. The Secretary of State failed to apply her policy properly. The appellant’s claimed sexuality required external supporting evidence, some likely to be obtainable only from abroad. No reasonable decision-maker possessing the information that should have been obtained could have concluded that the claim was capable of fair and sustainable determination within about two weeks. Non-compliance with a policy directly governing detention rendered the detention unlawful.

6. The appellant was unlawfully detained from 20 October to 24 November 2010. The damages claim was remitted to the High Court for assessment.

1. Court of Appeal (Civil Division): The appeal was allowed. By a majority, the court held Jamaica’s designation unlawful. The court unanimously held that the appellant had been unlawfully detained and remitted the assessment of damages to the High Court: [2013] EWCA Civ 666.
2. High Court, Queen’s Bench Division (Administrative Court): The Deputy Judge dismissed both the judicial review challenge to Jamaica’s designation and the claim for damages for false imprisonment: [2012] EWHC 1660 (Admin).