VarunThe SSHD accepted that the treatment of the lesbian, gay, bisexual and transgender community in Jamaica amounted to persecution as defined by the Refugee Convention. For example, acts of gay intimacy are illegal and punishable by up to 10 years of hard labour, and lesbians are routinely subject to “corrective” rape. The issue before the Supreme Court on the 26 November 2014 was, given the LGBT community make up only 10% of Jamaica’s population, was it irrational for the SSHD to decide that in “in general” there was “no serious risk of persecution of persons entitled to reside” there? This is the test set-out in the Nationality, Immigration and Asylum Act 2002, s 94(5)(a) that needs to be satisfied before a country can be considered generally safe.

The SSHD considered Jamaica to be generally safe, and accordingly it was listed in the Nationality, Immigration and Asylum Act 2002, s 94(4). The effect of being noted in that provision, colloquially known as the “white list”, is that the SSHD will presume that an asylum claim from a national of that country is unfounded (i.e. bound to fail) and it is for the applicant to prove otherwise. This can be an onerous task, particularly when the applicant needs to prove an invisible characteristic such as homosexuality. If the SSHD concludes that an asylum claim is unfounded the applicant’s ability to appeal is restricted.

The law
The current leading authority on this issue is R (Javed) v SSHD [2001] EWCA Civ 789, and the test was set out by Lord Phillips MR at paragraph 57, where he noted that in order for a challenge against white list designation to succeed the applicant will need to show there was “serious risk of persecution” in that country, and “for a risk to be serious it would have to affect a significant number of the populace

High Court
In the QBD (Admin), Paines J thought a challenge to Jamaica’s designation could only succeed on normal Wednesbury grounds (see paragraph 29). 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 SSHD to place Jamaica on the white list. He held that it was open to the SSHD to consider Jamaica was safe in general because the LGBT community only made up 10% of the population.

Court of Appeal
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” which meant Lord Phillip’s MR  test was met and the designation of Jamaica was irrational (Moore-Bick LJ dissenting). Implicit in the majority’s reasoning was the idea that the SSHD ought to be subject to a higher level of scrutiny than normal Wednesbury grounds. Moore-Bick LJ emphasised this is an area to which the SSHD ought to be granted “a significant margin of appreciation” because the decision involved a substantial level of judgment. Whereas Black LJ and Sir Macolm Pill noted the fundamental rights involved in asylum claims and were notably less deferential.

Issues before the Supreme Court
The law in this area is thoroughly confused and the Supreme Court needs to decide on two issues. Firstly, the authorities are unclear on what percentage of the population has to be at risk before a country is removed from the white list (in R (Husan) v SSHD [2005] EWHC 189 Admin 1% of the population was considered ‘significant’, yet in Singh v SSHD & Anor [2001] EWHC 925 (Admin), 0.76% of the population was not). However, it is not desirable that such decisions are made purely by reference to a numerical test. It is hoped that the Supreme Court formulate a principled way of deciding what countries ought to be on the white list. For example counsel for the respondent argued in the CA that any country where any social group faced the persecution ought to be removed from the white list.

Secondly, it is not clear what standard of scrutiny the SSHD’s decision ought to be subject to by a reviewing Court. Given that the SSHD could potentially be sending a man back to be persecuted, i.e. face really serious (and probably irreparable) harm, the decision to designate ought to be held to a higher level of scrutiny that normal Wednesbury.

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