QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF BROWN||(CLAIMANT)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS L GIOVANNETTI (instructed by Treasury Solicitors, London SW1H 9JS) appeared on behalf of the DEFENDANT
Crown Copyright ©
"Save for article 8, which I consider unarguable, there is a claim here with some prospect of success."
The article 8 claim was linked with the article 4 (discrimination) claim and in the light of the limited permission those need not be further considered.
"(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 effect of such an addition to the list is that the certificate under section 94 must be issued by the Secretary of State:
"... unless satisfied that the claim is not clearly unfounded."
See section 115(6). The language is plainly tortuous. However, the effect of designating a state is, at most, to change the way in which the test is applied under section 94, not to alter the test. The test for certification, as set out in section 94, relates to whether or not the claim is "clearly unfounded". At a time when the Refugee Legal Centre was still representing this claimant the claim that Jamaica had been wrongly designated under section 115(8) was abandoned. In my view it is not necessary to consider that part of the claim further.
"... I consider that the obligation to afford refugee status arises only if the person's own state is unable or unwilling to discharge its own duty to protect its own nationals. I think that it follows that, in order to satisfy the fear test in a non-state agent case, the applicant for refugee status must show that the persecution which he fears consists of acts of violence or ill-treatment against which the state is unable or unwilling to provide protection. The applicant may have a well-founded fear of threats to his life due to famine or civil war or of isolated acts of violence or ill-treatment for a Convention reason which may be perpetrated against him. But the risk, however severe, and the fear, however well founded, do not entitle him to the status of a refugee. The Convention has a more limited objective, the limits of which are identified by the list of Convention reasons and by the principle of surogacy."
"The primary duty to provide the protection lies with the home state. It is its duty to establish and to operate a system of protection against the persecution of its own nationals. If that system is lacking the protection of the international community is available as a substitute. But the application of the surogacy principle rests upon the assumption that, just as the substitute cannot achieve complete protection against isolated and random attacks, so also complete protection against such attacks is not to be expected of the home state. The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard, which takes proper account of the duty which the state owes to all its nationals. As Ward LJ said  INLR 15, 44G, under a reference to Professor Hathaway's observation in his book, at page 105, it is axiomatic that we live in an imperfect world. Certain levels of ill-treatment may still occur even if steps to prevent this are taken by the state to which we look for our protection."
"Where the allegation is of persecution by non-state agents, the sufficiency of state protection is relevant to a consideration whether each of the two tests -- the 'fear' test and the 'protection' test -- is satisfied. The proper starting point, once the tribunal is satisfied that the applicant has a genuine and well-founded fear of serious violence or ill-treatment for a Convention reason, is to consider whether what he fears is 'persecution' within the meeting of the Convention. At that stage the question whether the state is able and willing to afford protection is put directly in issue by a holistic approach to the definition which is based on the principle of surogacy."
"What is critical is a combination of a willingness and ability to provide protection to the level that can reasonably be expected to meet and overcome the real risk of harm from non-state agents. What is reasonable protection in any case depends therefore on the level of the risk without that protection for which it has to provide."
"In the light of, this the Secretary of State considers that, irrespective of his other comments regarding the merits of your claim, you do not qualify for recognition as a refugee because there are parts of Jamaica where gang violence is less prevalent and in which you do not have a well-founded fear of persecution. The Secretary of State considers it would be reasonable to expect you to relocate to such an area to avoid the problems you have described."
In effect that reasoning was applied to the human rights claim also.