QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
|ON THE APPLICATION OF|
|- and -|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Michael Fordham and Miss Kate Gallefent instructed by Treasury Solicitor, on behalf of the Defendant
Crown Copyright ©
The Deputy Judge:
"Although [the Claimant's] case is a difficult one I consider that (1) it probably crosses the threshold of arguability and (2) it may be helpful if there is a substantive decision in a Jamaica case."
There has in fact subsequently been such a decision (R (CB) v SSHD  EWHC 2045 (Admin)). There has also been a reasoned permission decision, following oral argument (R (Hylton) v SSHD  EWHC 1992 (Admin), in which Richards J gave permission to rely on the judgment).
(1) whether the Secretary of State erred in his approach to sufficiency of protection for the Claimant in Jamaica;
(2) whether the internal flight alternative is available to the Claimant.
"There is in general ... no serious risk of persecution ..., and removal [there] ... would not in general contravene the United Kingdom's obligations under the Human Rights Convention."
The Claimant had sought to argue that Jamaica's inclusion in the list was unlawful,
"given the prevalence and reality of the problems in Jamaica for persons threatened by criminal organisations, or their affiliated political partners, and for homosexuals, which represent conspicuous elements of the population." (Grounds for judicial review, para 27.)
However, in the light of the decision of Richards J in Hylton the Claimant did not pursue the argument that inclusion of Jamaica on the list of states subject to certification under Section 94 of the 2002 Act was unlawful.
"(a) You live in a Jamaican Labour Party (JLP) dominated area and your brother had a relationship with the sister of the JLP leader of your area, but the quality of their relationship deteriorated. About four years ago you got drawn into their problems and as a result you were attacked by five JLP people, and the seriousness of your injuries required you to remain in hospital for three months. The police came to the hospital to investigate the attack but you told them that you did not know who had attacked you.
(b) 3-4 years ago your friend's drinks van was robbed. He told the police that you would be able to help them with their enquiries and they came to your home to question you. The police were seen outside your home by your neighbours, and even though you told the police that you could not help them, the robbers (who were members of JLP) labelled you as being an informer and a supporter of the Government (SEF Q48, Q60). You have said, however, that you are not a member of any political party. Also, that you were accused by JLP members of informing on them with regard to the murder of a local youth a week later. (Statement, para 9.)
(c) While standing at your gate in January 2002 you overheard and saw approximately 25 people who were members of the JLP planning a revenge killing against members of the People's National Party (SEF Q5, 6). You did not report this to the police because you suspect that they work in league with the JLP (SEF Q16), but after the killings (which included two children) you spoke out with your friend about your disapproval of the killings and he told members of the JLP of your views (SEF Q13). Also, because your five year old daughter had been a classmate of one of the children who had been killed, you bought a wreath for the funeral of one of the children (Further Questions, Q21). As a result of your actions, members of the JLP again suspected that you were an informer for the PNP (SEF Q18). After your friend told the JLP of your views, four men including the local leader came to your house to speak to you and asked you to "come down the lane". You resisted and suffered jaw, head and rib injuries (SEF Q27, Q31). They ran away when your sister appeared shouting for help (SEF Q33).
(d) You spent 7-8 days in hospital on this occasion and the day after you were discharged you witnessed the rape of the mother of your baby and of your sister by members of the JLP (SEF Q37 and letter from RLC para 15), allegedly as punishment for taking you to hospital.
(e) You have also been accused of being a homosexual because your boss (who you have worked with for two years) is homosexual and you were spotted getting out of his car in your neighbourhood when he dropped you off from work. People stoned his car and broke his windshield.
(f) You left Jamaica and travelled to the United Kingdom where you arrived on 21 February 2002 when you were given leave to enter on your visitor's visa for six months. You claimed Asylum on 2 April 2003 after being arrested as a person who has failed to observe a condition of leave to enter and subject to administrative removal in accordance with Section 10 of the Immigration and Asylum Act 1999."
MEANING OF "CLEARLY UNFOUNDED"
"[In considering s115] the decision-maker will (i) consider the factual substance and detail of the claim (ii) consider how it stands with the known background data (iii) consider whether in the round it is capable of belief (iv) if not, consider whether some part of it is capable of belief (v) consider whether, if eventually believed in whole or in part, it is capable of coming within the refugee convention. If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not." (Para 57.)
The meaning of "manifestly unfounded" within Section 72(2)(a) of the Immigration and Asylum Act 1999 was considered by the House of Lords in R v Secretary of State for the Home Department, ex p Thangarasa, ex p Yogathas (2002) 3 WLR 1276. Lord Bingham said
"Before certifying as "manifestly unfounded" an allegation that a person has acted in breach of the human rights of a proposed deportee the Home Secretary must carefully consider the allegation, the grounds on which it is made and any material relied on to support it. But his consideration does not involve a full-blown merits review. It is a screening process to decide whether the deportee should be sent to another country for a full review to be carried out there or whether there appear to be human rights arguments which merit full consideration in this country before any removal order is implemented. No matter what the volume of material submitted or the sophistication of the argument deployed to support the allegation, the Home Secretary is entitled to certify if, after reviewing this material, he is reasonably and conscientiously satisfied that the allegation must clearly fail" (at p1283).
There is no material difference between the meaning of "clearly unfounded" and "manifestly unfounded".
SUFFICIENCY OF PROTECTION
"... 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 ... 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 surrogacy. (p499 G - 500 A)
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 surrogacy 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 own nationals" (p500 F-H).
Lord Clyde added:
"There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the Convention requires to have protected. More importantly there must be an ability and a readiness to operate the machinery. But precisely where the line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case.
It seems to me that the formulation presented by Stuart-Smith LJ in the Court of Appeal may well serve as a useful description of what is intended, where he said (2000) INLR 15, 26, para 22:"In my judgment there must be in force in the country in question a criminal law which makes the violent attacks by the persecutors punishable by sentences commensurate with the gravity of the crimes. The victims as a class must not be exempt from the protection of the law. There must be a reasonable willingness by the law enforcement agencies, that is to say the police and courts, to detect, prosecute and punish offenders" (p510 F - 511 C).
These principles and the concept of sufficiency of protection apply equally in relation to potential breaches of Article 3 of the Convention (Dhima v IAT (2002) EWHC 80 (Admin); and R(on the application of Bagdanavicius) v Secretary of State for Home Department (2003) EWHC 854 (Admin) where judgment is awaited from the Court of Appeal).
"Jamaica's "political" violence is inextricably linked to the nature of the gang-dominated garrison areas, the ghettos where criminal activity and local influence are controlled under a veneer of allegiance of political parties."
Recently the CMU has been disbanded and replaced with a special response team: it is not suggested that this was not a proper step for the authorities to take.
"that is not intended to be, and plainly cannot be, a general statement to be adopted in other cases in relation to protection of informers, or suspected informers, in Jamaica or any part of it" (para 23).
SUFFICIENCY OF PROTECTION FOR HOMOSEXUALS
"Given the reported prevalence of this phenomenon in Jamaica, it is not implausible to suggest that someone could be singled out for such attacks on the grounds of perceived homosexuality. It would not be implausible to suggest that someone who had had to leave one neighbourhood on account of his sexuality could be expected to face violence and hostility in another ..." (p11).
However, the Claimant's case is that he left Jamaica "in order to save (his) life" (p 68, para 20), from fear of being killed as an informer (p 69, para 29). There is no evidence of any attack (nor threatened attack) on him, nor that he was in fear of his life on the basis of perceived homosexuality. In R (on the application of Dawkins) v Immigration Appeal Tribunal (CO/3119/2002), a case concerning a Jamaican homosexual, it was argued that Articles 2 and 3 of the Convention would be breached by the return of the claimant to Jamaica. Rejecting the submissions made on behalf of the claimant, Wall J said:
"49. ... These cases are essentially fact sensitive. It simply cannot be the law, in my judgment, that merely because the law of Jamaica has a criminal statute which criminalises homosexual behaviour, that mere fact cannot, of itself be sufficient to require this country to grant immigration status to all practising homosexuals in Jamaica. On that basis, anybody who was a homosexual could come to this country and claim asylum.
50. Therefore, the matter must be fact sensitive, and the applicant must show something in addition to the mere fact that he is a homosexual. In my judgment the overwhelming weight of the authorities is that the applicant in the position of this applicant has to bring himself either within Article 3 or at least show some substantial substratum fact that he is going to be subject to substantial discrimination and/or violence and abuse."
(See also R (on the application of Hylton v Secretary of State for the Home Department (2003) EWHC 1992 (Admin) at para 12, per Richards J.)
"The people who attacked me said that when I went back home they were going to kill me ...
The men said that we should leave the area because I was an informer." (emphasis added)
As for not going to the police to report the attack, the Claimant said that
"this would have made things worse. Everyone would have had to leave the area otherwise they would be hurt" ... (para 18). (emphasis added)
"... I would not have been able to continue to live in my area if I did this because the JLP would kill me or attack me again" (para 21). (emphasis added)
"in which anyone who seeks to oppose, raise opposition to or organise against the dominant party will definitely be in danger of suffering serious damage to their possessions or person thus making continued residence in the area extremely difficult if not impossible." (emphasis added)
MR JUSTICE JACKSON: This application is dismissed for the reasons set out in the judgment I hand down.
MISS GALLAFENT: My Lord, may I apply for the Secretary of State's costs in this matter. I have seen in the bundle lodged with the claim form that Legal Services Commission funding was made available to the claimant, and I think -- I overheard the associate -- that it appears on the certificate to be limited to the renewal at the permission stage. I have not seen a certificate to cover the substantive hearing. I am afraid I am not aware of whether Mr Jones was intending to attend today, but I would seek an order that costs be determined under the Access to Justice Act 1999, which would be the usual order in relation to a legally assisted party. I am afraid that in the absence of Mr Jones I am unable to assist your Lordship on the precise application for the substantive hearing --
MR JUSTICE JACKSON: So you are asking for the Secretary of State's costs to be paid by the claimant?
MISS GALLAFENT: Yes, to be determined under the Access to Justice Act 1999.
MR JUSTICE JACKSON: I make an order in those terms, but I think in Mr Jones' absence I should give liberty to the claimant to apply with regard to that order within seven days. I also make the usual order for legal aid on the basis that the certificate is lodged with the court within seven days.
MISS GALLAFENT: I am grateful.