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Factual Background Varun

The respondent was a Jamaican national who claimed asylum in the UK on the basis that he would be persecuted in Jamaica because he was a homosexual. However, the appellant considered that “in general” there was “no serious risk of persecution” in Jamaica and the respondent’s application was presumed to be “clearly unfounded”. The main consequence of making a “clearly unfounded” asylum claim is that the asylum applicant can only appeal from his country of origin rather than from within the UK.

Legal Issue

If the appellant was satisfied that “in general” there was “no serious risk of persecution” in a particular country she had the power under the Nationality, Immigration and Asylum Act 2002, s 94 (5) to add that country to what is colloquially known as the “white list”. The issue in this case was whether the appellant’s decision to add Jamaica to the “white list” was irrational in light of the fact she had accepted that i) there was a serious risk of persecution of members of the LGBT community ii) that community made up between 5% – 10% of the population and iii) there was no risk of persecution to the rest of the population.

Case History

In the QBD (Admin) Paines J pointedly, and extensively, set out the very serious problems faced by members of the LGBT community in Jamaica and stressed that he was not deciding if he thought Jamaica ought to be on the “white list”, but whether it was reasonable for the appellant to place Jamaica on the “white list”. He held that it was open to appellant to consider Jamaica was safe “in general” because the LGBT community only made up 10% of the population.

In the CA (Civ Div), however, and directly contrary to the view of Paine J, both Black LJ and Sir Macolm Pill considered 10% to be a “significant number of the populace” and therefore held that Jamaica was not safe “in general”.

Supreme Court Judgment

The Supreme Court agreed with the decision of the CA (Civ Div) but for different reasons. The previous leading authority on “white list” designation was R (Javed) v Secretary of State for the Home Department [2001] EWCA Civ 789. At paragraph 57 of Javed Lord Phillips MR said that “for a risk to be serious it would have to affect a significant number of the populace “(emphasis added). Both the QBD (Admin) and the CA (Civ Div) applied the “significant number of the populace” test to Jamaica, but each came to a different conclusion as to whether 10% amounted to such a number.

Lord Toulson (with whom Lady Hale, Lord Sumption and Lord Carnwath agreed) however, explained that both the QBD (Admin) and the CA (Civ Div) had misunderstood Lord Phillips’ judgment. Lord Phillips did not lay down a test that the size of persecuted minority must exceed an unspecified percentage to render designation irrational.

Lord Toulson held that designation would be irrational when a recognisable section of the community was being persecuted, irrespective of the size of the community.

At paragraph 21 in the judgment Lord Toulson explains that:

I do not read the words “there is in general … no serious risk of persecution of persons, …” as meaning “there is no serious risk of persecution of persons in general”, and therefore as intended to permit the designation of a state which systematically carries out or tolerates persecution provided that it is limited so as not to affect the large majority. I read the words “in general” as intended to differentiate a state of affairs where persecution is endemic, ie it occurs in the ordinary course of things, from one where there may be isolated incidents of persecution.

Lord Toulson gives three reasons for eschewing the use of a benchmark figure for assessing the rationality of a decision to place a country on the white list. Firstly, there is simply no way of deciding what the number should be. Secondly, even if a number could be agreed upon, there is no reason why it should make a difference whether the group represented, say, more than 20% or only 15%. Thirdly, in the case of many minority groups there will be no way of obtaining reliable information as to their total size. This is particularly true of members of the LGBT community who, for obvious reasons, might be discrete about their sexuality. Further, he echoed the words of Wilson J in R (Hasan) v Secretary of State for the Home Department [2005] EWHC 189 (Admin), and explained that refugees and persecuted communities will often be in the minority.

Although he agreed with the decision of Lord Toulson, Lord Hughes thought that Lord Toulson’s speech went too far and interfered too much with the decision making power of the appellant, he noted at paragraph 30 that:

So, to treat the existence of risk to a “recognisable section of the community” as a bar to certification however small the section will in effect be in danger of preventing certification of any state where there is any risk of persecution to anyone.

No-one else agreed with Lord Hughes’ speech, and his speech forms no part of the ratio of the case.

Comment

More important than the decision in this case was the reformulation of the test by Lord Toulson. Counsel for the respondent (and this blog), had urged the Courts to formulate a principled and consistent test for assessing the rationality of placing a country on the “white list”. And therefore Lord Toulson’s speech ought to be welcomed.

Lord Toulson’s “recognisable section of the community” test means this case has implications for all victims of persecution, and not just persecuted members of the LGBT community. However, this case, and the additional safeguards it brings to persecuted members of the LGBT community, is particularly welcome in light of the recent report by John Vine, the independent chief inspector of Borders and Immigration. The report concluded that the Home Office’s guidance and training on asylum cases based on sexual orientation was not being applied consistently and inappropriate questions were routinely being asked.

Further, Paul Dillane, executive director of “UK Lesbian and Gay Immigration Group” claims that the biggest problem faced by a LGBT asylum applicant is proving his/her sexuality. By removing homophobic countries from the white list, and thereby presumptively giving a failed asylum applicant an in-country right of appeal, an LGBT asylum applicant will have the best chance possible to prove his/her case.

Varun Kesar is Matrix’s Legal Information Assistant. He tweets at @VarunKesar999