ON APPEAL FROM QUEEN'S BENCH ADMINISTRATIVE COURT
THE HONOURABLE MR JUSTICE BEATSON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ELIAS
LORD JUSTICE TOMLINSON
| THE QUEEN ON THE APPLICATION OF MD (GAMBIA)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Mr Matthew Barnes (instructed by The Treasury Solicitor) for the Respondent
Hearing dates: 19 January 2011
Crown Copyright ©
Lord Justice Elias :
The statutory framework.
"reasonably and conscientiously satisfied that the allegation must clearly fail":
"If the Secretary of State is satisfied that an asylum claimant or human rights claimant is entitled to reside in a State listed in subsection (4) he shall certify the claim under subsection (2) unless satisfied that it is not clearly unfounded."
"The Secretary of State may by order add a State, or part of a State, to the list in subsection (4) if satisfied that—
(a) there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and
(b) removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdom's obligations under the Human Rights Convention."
The designation order
"Whether there was in general a serious risk of persecution was a question which might give rise to a genuine difference of opinion on the part of two rational observers of the same evidence. A judicial review of the Secretary of State's conclusion needed to have regard to that considerable margin of appreciation. There was no question here of conducting a rigorous examination that required the Secretary of State to justify his conclusion. If the applicants were to succeed in showing that the designation of Pakistan was illegal, they had to demonstrate that the evidence clearly established that there was a serious risk of persecution in Pakistan and that this was a state of affairs that was a general feature in that country. For a risk to be serious it would have to affect a significant number of the populace."
The scope of the Order
The objective evidence of Gambia's human rights compliance.
"Unlawful arrests and detentions take place routinely in the Gambia. Individuals are rarely informed of the reason for their arrest. They are often kept in detention without charge longer than the 72 hours specified by Gambian law and rarely have access to a lawyer. Once in the custody of the Government, detainees seem to fall beyond the protection of the law and are routinely subjected to further human rights' violations, such as unlawful detention, torture, extra-judicial execution, unfair trials or enforced disappearance. Avoiding arrest has become a constant pre-occupation for the entire population and it affects every aspect of Gambian life, generating fear and mistrust amongst the population.
The arbitrary nature with which unlawful arrest and detention are carried out leave very few Gambians free from the risk of becoming victims of human rights' violations. The deterioration in the human rights' situation after the March 2006 foiled coup plot demonstrated that all Gambians are at risk and may be subject to unlawful arrest and detention. Those at risk include real and perceived political opponents, people who are close allies of the Government before their arrest, as well as Government employees, military people, security people, opposition leaders, human rights' defenders, journalists and lawyers."
"Although the constitution and law provide for protection of most human rights, there were problems in many areas. Prison conditions remain poor, resulting in death. Arbitrary arrests and detentions, often without warrant, continued. Security forces harassed and mistreated detainees, prisoners, opposition members, journalists with impunity. Prisoners were held incommunicado, faced prolonged pre-trial detention, held without charge, denied access to families and lawyers, and were tortured and denied due process. The Government restricted the freedom of speech and press through intimidation, detention, and restrictive legislation."
"Prison conditions were poor and cells were overcrowded, damp and poorly ventilated. Inmates complained of poor sanitation and food."
"The constitution law provide for a fair and public trial and the judiciary generally enforce this right …."
He accepts, of course, that there is some corruption, particularly of judges at the lower level who may give way to government pressure, but he pointed out that the three judges who had been removed were later reinstated. Accordingly, he submits that this does not begin to constitute evidence of a general break down in the judicial process.
"Where, as here, there is no dispute of primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded. It follows that a challenge to the Secretary of State's conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State's view was irrational."
Lord Brown of Eaton-Under-Heywood (para 76) agreed with this observation; as did Lord Neuberger of Abbotsbury (para 83), although he was not prepared to say that it was necessarily the right approach in all cases. Lord Phillips' comment was made in the context of a decision taken under section 94(2), but I see no reason why it should not apply equally to a decision under section 94(3). Furthermore, if primary facts are in issue that will make it even harder for the Secretary of State to issue a certificate. As Lord Phillips himself pointed out in the ZL and VL case (para 60), it is only if the Secretary of State could be satisfied that nobody could find the applicant credible that it would be appropriate to certify a claim where the primary facts were disputed. Here too, if there is any reasonable doubt, the claim cannot be described as clearly unfounded.
"In this case the Secretary of State has not challenged the factual basis of the claimant's case….. At its highest it shows harassment by reason of police interrupting meetings and an arrest for fighting which has led to a summons to court which may lead him to prosecution for failure to attend. There is no description of being threatened with violence. As well as the recent reports, the claimant relies on Mr Nyassi's statement, his brother's affidavit, and the warrant for his arrest. Mr Mustakim submitted that there is a real risk that the claimant will be tortured if arrested and it cannot therefore be said that the claim is "wholly lacking in substance". The defendant accepts that a warrant has been issued because the claimant did not respond to the summons to appear in court as a witness but there is no evidence that he is himself to be charged with sedition. Mr Nyassi's statement gives different dates for the claimant's detention to those the claimant has given. Significantly, the objective evidence about membership of the UDP is that membership as such of that party would not put a person at risk. The party has taken part in demonstrations which were not disrupted by security forces. The treatment of the claimant when he was arrested and detained on two occasions was also, on his account, such as not to put into question the defendant's certification."