Asylum seeker – Detention – Claimant being detained under non-suspensive appeals process
R (on the application of JB (Jamaica) v Secretary of State for the Home Department: Court of Appeal, Civil Division: 12 June 2013
The claimant was a Jamaican national. In February 2010, he came to the UK on holiday. He returned to Jamaica and, in May 2010, he returned to the UK on a one-month visa. He overstayed that visa and in, October 2010, he claimed asylum on the ground that he had suffered persecution in Jamaica as he was a homosexual. Following in initial interview, the claimant was detained by the defendant secretary of state under the non-suspensive appeals process.
On 15 November 2010, the claimant's asylum claim was dismissed as the secretary of state did not consider the claimant was a homosexual. The claimant appealed and he remained in detention as his appeal was allocated to the fast-track process. Whilst he was in detention, the claimant applied for judicial review of the decision to include Jamaica in the designated list of countries contained in section 94(4) of the Nationality, Immigration and Asylum Act 2002 (the 2002 act) (the designation decision) and of the decision to detain him (the detention decision). On 24 November, the claimant's appeal was due to be heard, but the decision was taken to take his appeal out of the fast-track process.
On the same day, he was released from detention. At the hearing it was common ground that Jamaica was a deeply homophobic society and that homosexuals were routinely reviled and attacked with no protection from the authorities. However, the secretary of state contended that as the lesbian, gay, bisexual and transgender people (the LGBT people) in Jamaica represented a small minority of the population of between 5-10%, it could not properly be said that there was in general in Jamaica no serious risk of persecution of persons entitled to reside there. In respect of the designation decision, the judge held that it could not be said that no reasonable person could have failed to find that the risk of persecution affected such a significant proportion of the population as to be ‘serious’ within the meaning of section 94(5)(a) of the 2002 act and that the claim therefore failed. In respect of the detention decision, the judge held that the claimant’s detention had been lawful. The claimant appealed.
The principal issues that fell to be determined were whether the judge had erred in holding that: (i) the secretary of state could rationally have concluded that Jamaica satisfied the criteria for designation; and (ii) the claimant's detention had been lawful under the non-suspensive appeals process. Consideration was given to the secretary of state's DFT & DNSA - Intake Selection policy document. The appeal would be allowed (Moore-Bick dissenting in part).
(1) (per Black LJ) In respect of the designation decision, the proper approach for the secretary of state in considering the inclusion of Jamaica in the list in section 94(4) of the 2002 act would have been to assume a figure at the top of the postulated range of 5-10%. Accordingly, 10% of the population had to be taken to be at risk. 10% of the population of Jamaica readily qualified as a 'significant number of the populace'. Bearing in mind the proportion of the populace affected, that fact that the entirety of that sector was at risk and the failure of the state to offer sufficient protection, even making full allowance for the margin of appreciation to be afforded to the secretary of state, she had not been entitled to conclude that there was in general in Jamaica no serious risk of persecution of persons entitled to reside there (see - of the judgment). R (on the application of Javed) v Secretary of State for the Home Department  All ER (D) 215 (May) considered; R (on the application of MD (Gambia)) v Secretary of State for the Home Department  All ER (D) 189 (Feb) considered.
(2) (per Pill LJ) A state in which there was a serious risk of persecution for an entire section of the community, defined by sexual orientation and substantial in numbers, was not a state where there was no general risk of persecution. It did not follow from the absence of risk to the much larger heterosexual community that in general there was no serious risk in the terms of section 94(5)(a) of the 2002 act where an entire section of the community of significant size and defined by its immutable characteristics, was at serious risk of systematic persecution (see  of the judgment). R (on the application of Javed) v Secretary of State for the Home Department  All ER (D) 215 (May) considered; HJ (Iran) v Secretary of State for the Home Department; HT (Cameroon) v same  2 All ER 591 considered; R (on the application of MD (Gambia)) v Secretary of State for the Home Department  All ER (D) 189 (Feb) considered.
(2) On the facts, the interviewing officer at the initial interview had made no attempt by means of supplementary questions to ensure that the kind of detailed assessment required by the secretary of state's policy had been carried out. Accordingly, the secretary of state had not complied with her own policy. Further, it should have been obvious to anyone who considered the claimant's claim with care that the decision had not been a simple one because of the difficulty of ascertaining where the truth lay. No reasonable person in possession of all the information about the appellant that could and should have been available if his case had been assessed in the manner required by the policy could have been satisfied at the time of his detention that a fair and sustainable determination of his claim could have been made within a period of two weeks (see , , ,  of the judgment). R (on the application of Saadi) v Secretary of State for the Home Department  4 All ER 785 considered; R (on the application of Lumba) v Secretary of State for the Home Department; R (on the application of Mighty) v same  4 All ER 1 considered; R (on the application of Kambadzi) v Secretary of State for the Home Department  4 All ER 975 considered. Decision of Nicholas Paines QC  All ER (D) 237 (May) reversed.
Stephen Knafler QC and Paul Nettleship (instructed by Sutovic & Hartigan) for the claimant; Matthew Barnes (instructed by the Treasury Solicitor) for the secretary of state.