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

A state cannot be designated as generally safe under section 94(5) of the Nationality, Immigration and Asylum Act 2002 merely because most of its population faces no serious risk of persecution. The words “in general” distinguish systematic or endemic persecution from isolated incidents. They do not establish a numerical threshold based on the proportion of the population affected.

Risk to an identifiable group does not invariably prevent designation. Its nature, prevalence and scale remain matters of degree. However, systematic persecution of an entire, substantial section of the community means that the state cannot properly be regarded as generally free from serious risk. Designation remains significant even though every individual claim must still be considered separately.

Jamar Brown, a Jamaican homosexual, sought asylum on the ground that he would face persecution if returned to Jamaica. He also sought judicial review of Jamaica’s designation under section 94(4) of the Nationality, Immigration and Asylum Act 2002 and of his detention under the associated fast-track process.

A Deputy High Court Judge dismissed the claim, holding that the Secretary of State could rationally regard Jamaica as generally safe because at least 90% of its population was not at serious risk. The Court of Appeal allowed the appeal by a majority: [2013] EWCA Civ 666; [2014] 1 WLR 836. Its separate conclusion that the detention was unlawful was not challenged in the Supreme Court.

The issue was whether a state could satisfy section 94(5) when a serious and systematic risk of persecution affected its LGBT population, estimated at between 5% and 10% of the whole population, but not the remainder.

1. The appeal was dismissed. Lord Toulson gave the leading judgment, with which Lady Hale, Lord Sumption and Lord Carnwath agreed. Lord Hughes agreed in the result and added qualifications.

2. Section 94(5) of the Nationality, Immigration and Asylum Act 2002 refers to states in which citizens are generally free from serious systematic persecution, whether committed by the state or by non-state agents whom the state is unable or unwilling to control. The phrase “in general” distinguishes endemic persecution, occurring in the ordinary course of things, from isolated incidents. It does not ask merely whether persons in general, meaning a majority of the population, are safe.

3. Persecution commonly targets minorities. A serious risk existing as a general feature must affect a recognisable section of the community, but the statute contains no numerical threshold requiring that group to exceed a specified percentage of the population. Such a threshold would lack a principled yardstick, would produce arbitrary distinctions and would often depend on information that could not reliably be obtained. The observations in R (Asif Javed) v Secretary of State for the Home Department [2001] EWCA Civ 789; [2002] QB 129 did not establish a proportional threshold.

4. Lord Hughes emphasised that risk to any identifiable group, however small, does not automatically bar designation. Systematic risk is necessary but may not always be sufficient to establish that risk exists “in general”. The decision is one of degree, allowing the Secretary of State appropriate flexibility and remaining reviewable on ordinary public law grounds. On the facts, however, the risk to Jamaica’s entire LGBT community, a substantial section of the population, could only properly be described as general.

5. Designation is legally significant because it changes the starting point, normally leads to detention and fast-track processing, and requires certification unless the Secretary of State is satisfied that the individual claim is not clearly unfounded. Separate consideration of each claim does not remove the need for a lawful designation decision.

6. The later insertion of subsections 94(5A)–(5C) could not alter the meaning of section 94(5) as originally enacted. The provisions nevertheless showed that Parliament had supplied a mechanism for designating a state only in relation to specified descriptions of person.

• United Kingdom Supreme Court: The Secretary of State’s appeal was dismissed by [2015] UKSC 8. The majority construction of section 94(5) was upheld.
• Court of Appeal: By a majority, the court allowed Mr Brown’s appeal concerning Jamaica’s designation: [2013] EWCA Civ 666; [2014] 1 WLR 836. It unanimously held his detention unlawful on other grounds; that conclusion was not appealed.
• Administrative Court: A Deputy High Court Judge dismissed the judicial review claim. He held that the Secretary of State could rationally designate Jamaica because 90% or more of its population did not face a serious risk of persecution.