England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		Friday, 9 July 2010

1. MR JUSTICE NICOL: This is an application for judicial review of a decision by the Secretary of State on 10 May 2010 to certify as clearly unfounded the claimant's claim that his deportation to Jamaica would infringe his rights under Articles 3 and 8 of the European Convention on Human Rights. This had the effect of precluding an appeal by the claimant to the First-Tier tribunal. The Secretary of State in that letter also refused to revoke a deportation order in relation to the claimant.
2. The claim for judicial review was issued on 14 May 2010. Permission to apply for judicial review and interim relief was refused by Mr Justice Ouseley on 17 May 2010 and the claimant was on that same day later deported to Jamaica. Somewhat unusually, his representatives in the United Kingdom have nonetheless continued with the application for judicial review and on 22 June 2010, Mr Justice Hickinbottom granted permission and ordered that the hearing of the substantive application should be expedited.
3. The claimant came to the United Kingdom in 2000. He came as a visitor and was given six months leave to enter. He is from an area in Kingston Jamaica known as the Sunlight Street area. In December 2000, he was at a pub in Brixton with some friends. Three other Jamaicans, who were members of a Jamaican gang called the Gem Street or Gem Road gang, entered the pub and tried to shoot one of the claimant's friends. The claimant came to his friend's defence and was himself shot, although in the event not seriously harmed. Later that same evening, another of the claimant's friends, whom I shall refer to as RW, was also shot and this time killed. The perpetrators were also believed to be the same members of the Gem Road gang.
4. In due course, the three Jamaicans who had entered the pub were prosecuted for the attempted murder of the claimant himself. The claimant and his nephew gave evidence for the prosecution at the trial. All three defendants were convicted of attempted murder and sentenced to imprisonment. While that criminal case was pending, the claimant was encouraged by the police to remain in the United Kingdom as a witness. In 2001, he was joined by his partner and their child. They have subsequently had two further children.
5. In 2002, the claimant and his nephew, who had also given evidence at the trial, sought asylum in the United Kingdom. In due course, the nephew was granted humanitarian protection in recognition of a risk to his life if he returned to Jamaica. Whilst that asylum application was outstanding, the claimant was convicted in 2004 of possession of a class A drug with intent to supply. He was sentenced to 4 years' imprisonment.
6. The claimant's asylum claim was rejected by the Secretary of State in 2005 and the claimant appealed. The appeal was dismissed by a decision of the Asylum and Immigration Tribunal on 21 March 2007. Then as now, the claimant alleged that his removal to Jamaica would be contrary to both Article 3 and Article 8 of the ECHR. In terms of the Article 3 application, the tribunal in 2007 properly directed itself in accordance with the country guidance case known as AB (Protection Criminal Gangs Internal Relocation Jamaica) CG (2007) UK AIT 00018.
7. The tribunal considered the claimant's argument that if returned to Jamaica he would be at risk from reprisals from members of the same gang against whom he had given evidence. At paragraph 26, the tribunal said this:

"We came to the clear conclusion that in relation to the asylum case, the appellant had not made out his case that he would currently be at risk upon return. We came to this conclusion for the following reasons and in the light of the very recent country guidance [that is a reference to the AB case].

(a) The appellant had not sought witness protection in this country despite having apparently been identified as an informer in 2002 in posters distributed in south London, the appellant has not been attacked or threatened, nor is it apparent that any attempt has been made on his life in this country.

(b) The appellant has relatives in Jamaica who have not been attacked and who appear to have continued to live in Montego Bay in relative safety.

(c) A COI service reply states that according to local resources the Gem Street gang has been inactive since the death of its former leader in November 2005 and the migration of other gang members.

(d) The evidence of Mr Foster, who had also been identified as an informer, was that his own family had continued to live close to Gem Road without as far as he was aware any threats being made to him since 2002 when he gave evidence.

(e) The appellant's claims that one of the Gem Street gang called Ren had managed to escape to Jamaica. We are unable to say whether this is reasonably likely to be true in the first place.

Later in this determination there is a reference to the appellant having given a wholly implausible account of the circumstances in which he became a street dealer of cocaine. That affects his credibility adversely. Even if we were to accept it as true that this man had returned to Jamaica, we would have no information as to his whereabouts or to the likelihood that he would be aware of the appellant's return.

(f) Having come to these conclusions, the questions of internal relocation and sufficiency of protection do not arise."

8. The tribunal also refused the appeal on Article 8 grounds. For reasons which I will explain, it is not necessary for me to go into the detail of that part of the claim or the Tribunal's decision.
9. The appellant through his solicitors made a number of representations preceding the Secretary of State's decision of 10 May 2010. In particular, the claimant was able to draw attention to the fact that, subsequent to the tribunal's decision, the three people against whom he had given evidence had been released from their sentences of imprisonment in the UK and had been deported to Jamaica. He argued that this in itself had created a greater risk for him than was apparent at the time of the tribunal's hearing in 2007 and, at the very least, itself justified the treatment of the representations as a fresh claim or, alternatively, meant that they could not be characterised as "clearly unfounded".
10. The claimant also had submitted to the Secretary of State that there had been another person, who was the cousin of RW and who had been deported to Jamaica. Whilst there this person had been assaulted and shot nine times by members of the Gem Street gang. This person had returned to the United Kingdom, claimed asylum and won his case before the AIT very recently on the basis of a risk of persecution at the hands of the Gem Street gang. The claimant gave a name for this person which in the event turned out to be incorrect but he did give the details which I have just summarised.
11. The Secretary of State's letter of 10 May did not really respond to the argument that the risk to the claimant had increased because of the two factors I have indicated. What the Secretary of State did do was to say and conclude that there would nonetheless be a sufficiency of protection in Jamaica for the claimant and it referred to a number of sources of country material which the Secretary of State believed enabled her to come to that conclusion.
12. The Secretary of State did in addition note that the claimant had not asked to be admitted to a witness protection programme in the United Kingdom. He had not been the subject of any revenge attack while he was in the United Kingdom and his relatives in Jamaica had not been attacked. They have continued to live in Montego Bay in relative safety. In addition, the Secretary of State said that it would be open to the claimant to relocate within Jamaica, away from Kingston, and thereby avoid any risk of retaliation which he said he feared. As I have said, the claimant then applied for judicial review. He was refused permission and interim relief and he was removed to Jamaica on 17 May. His counsel today has told me he has lived in hiding ever since.
13. Following the decision of Ouseley J to refuse permission, the Secretary of State lodged an acknowledgment of service disputing that the claimant had good grounds for seeking judicial review. The acknowledgment of service was lodged on 17 June 2010. Shortly before then, and Mr Poole tells me only the day before, the Secretary of State had been able to identify the other case to which the claimant had alluded in his representations. This had indeed led to a hearing before an immigration judge. I am not certain as to when the decision was promulgated but it was prepared on 20 February 2009 and it is to be referred to as HC (Jamaica).
14. Mr Poole on the Secretary of State's behalf accepts realistically that, although the claimant had not been able to correctly identify the appellant and the decision in this case, it was nonetheless information available to the Secretary of State and the claimant is accordingly entitled to rely on it in his challenge to the lawfulness of the Secretary of State's certificate.
15. The immigration judge in HC (Jamaica) allowed the appeal on humanitarian protection and human rights grounds. It is not however the ultimate outcome of the case which is of significance for the claimant. Rather, it is for the account which HC gave and which was accepted by the immigration judge indicating that the Gem Street or Gem Road gang, far from being defunct as the tribunal had considered in 2007, was very much alive and active at least in 2007. What is more, notwithstanding that seven years had passed since the incident in the pub in Brixton, the Gem Street gang was still, apparently, engaging in revenge attacks against HC because of his family's connection to the incident in the Brixton pub in 2000. HC had family who had been involved as witnesses in the very same trial where the claimant had given evidence for the prosecution.
16. HC said to the tribunal, and the Immigration Judge accepted, that he had been shot a number of times by the Gem Street gang. HC believed the attack was due to the attackers being friends, with those who had been convicted and sent to prison in the UK due in part to HC's extended family's involvement as witnesses at the trial. Furthermore, it will be recalled that in 2007 the tribunal in the claimant's own case had been unable to reach a conclusion as to whether a Gem Street gang member called Ren was back in Jamaica and if so, whether he continued to be active. In his appeal hearing, HC gave evidence that Ren and another gang member called Jokey were indeed part of the Gem Street gang. They were active and possibly engaging in leadership roles.
17. In HC, the tribunal found this evidence contradicted the information from the FCO which had been presented in the claimant's own tribunal hearing and which had also been relied upon by the Home Office before the tribunal in HC. The tribunal found HC to be an honest and credible witness. It accepted his account in its detail and, in particular, it accepted his account of the attack on him and the reasons why it had taken place.
18. All of these are matters which the claimant now says add further force to his submissions that the Secretary of State was not justified in saying in May 2010 that his human rights claims were clearly unfounded. On the contrary, he submits, they are powerful reasons why a fresh tribunal would be likely to accept his account and to accept his claim that to return him to Jamaica would be contrary to Article 3 of the European Convention on Human Rights.
19. Mr Poole says the Secretary of State was nonetheless entitled to conclude that the claimant would have a sufficiency of protection from the Jamaican authorities. The difficulty with that submission is that it does not engage with the AB country guidance case. In that decision, as summarised in the head note, the tribunal found that the authorities in Jamaica are in general willing and able to provide sufficient protection. However, unless reasonably likely to be admitted into the witness protection programme, a person targeted by a criminal gang will not normally receive effective protection in his home area.
20. Mr Poole accepted the Secretary of State could not reasonably assume the claimant would be admitted to a witness protection programme. Put perhaps more accurately, he could not properly assume the claimant would be unable to persuade a tribunal at a further hearing that he would not be able to access a witness protection programme. He did not argue that the claimant would be unable to show he was at risk of being targeted by a criminal gang.
21. That being so, the Secretary of State was faced with the conclusion of the tribunal in this country guidance case that such a person would not normally receive effective protection in his home area. The passages which the Secretary of State relied on from his objective evidence in my judgment did not really grapple with the conclusion of the country guidance case. That would not be of overwhelming significance if indeed it was plain the claimant would be able to relocate elsewhere in Jamaica. In the AB case, the tribunal said this:

"Whether such a person, that is a person who is not admitted into a witness programme, is targeted by a criminal gang, would be able to achieve protection by relocating will depend on his particular circumstances. But the evidence does not support the view that internal relocation is an unsafe or unreasonable option in Jamaica in general. It is a matter for determination on the facts of each individual case."

22. It will be recalled that the tribunal in 2007 did not need to reach a view about the possibility of the claimant avoiding a risk of harm by relocating within Jamaica. This is not therefore the type of fresh claim where the claimant has to demonstrate there are new developments or new facts which would justify a realistic prospect of a second appeal succeeding, despite failure on the critical issues at the first appeal. On this matter, the Secretary of State's letter of 10 May 2010 said merely this:

"(51) Given that the objective evidence clearly states there are parts of Jamaica where gang violence is less prevalent, it is considered that the option of relocating to those areas would be open to your client should he encounter problems with gangs upon his return to Jamaica.

(52) Regarding your fear of the individuals your client believes to be members of the Gem Street gang, it is considered reasonably unlikely that non-state agents would have the desire or indeed the resources to commence a search involving the entire Jamaican population. Given the evidence of freedom of movement, the size in population of 2,804,332 in Jamaica, it is concluded that your client could relocate to another part of Jamaica where he has no known previous convictions in order to escape the threat of those he purports to fear."

23. As to that, Mr Buley comments as follows:

"This is someone who fears those who have shown considerable zeal and tenacity in the past, witness the attack on HC, notwithstanding the number of years since the events in the pub in Brixton."

24. Indeed, Mr Buley argues that HC was merely the relative of somebody who had given evidence against members of the Gem Street gang, whereas the claimant was more directly involved. He was a witness for the prosecution.
25. Next Mr Buley comments that notwithstanding the general comments about Jamaica which the Secretary of State made in paragraph 52 of the letter, the tribunal in AB did not rule that internal relocation was always a possibility. Rather it said it was a matter for determination on the facts of each individual case. Because of the view which the tribunal reached in 2007 upon other matters, it has never been necessary for an immigration judge or tribunal to make such an assessment on the individual facts of the claimant's particular case.
26. In AB, the tribunal did allude to the difficulties which people might have relocating in Jamaica, away from an area where they had employment and family support. While those would not inevitably mean that relocation was an unreasonable alterative, they could do so on the facts of particular cases.
27. The Secretary of State is entitled to observe that this claimant apparently has relatives in Montego Bay (in other words, an area away from Kingston) and those relatives have not, so it seems, been targeted by the Gem Street gang. Those are matters which it was open to the Secretary of State to take but I must remember that her task in concluding that the claimant's submissions were clearly unfounded is a more exacting one. She must ask herself, "Is it clear there are no real prospects of success for an appeal if these matters were presented to a tribunal?" In my judgment, the Secretary of State could not lawfully so conclude.
28. It follows that in my judgment, certainly when one takes into account the positive findings in HC, that the Secretary of State was not entitled to come to the view that the further submissions before him on 10 May constituted a clearly unfounded Article 3 claim.
29. I should add by way of a coda that there were subsequent proceedings in the HC case. Reconsideration was ordered and the matter was ultimately appealed to the Court of Appeal. In the Court of Appeal, the case was settled. However, the statement of reasons included this acceptance by the Secretary of State:

"Given the appellant's particular personal history, the tribunal was entitled to find that he could not relocate within Jamaica."

30. I appreciate, as Mr Poole reminds me, that one must be very careful in extrapolating from the facts of one case to the facts of another. It may well be that on closer examination there are significant differences between the personal circumstances and personal history of HC and the current claimant but nonetheless in my view, Mr Buley is entitled to take some comfort from that comment. A person who has at least some overlapping features with those of the claimant was found or accepted by the Secretary of State not to be able to avoid the risk of ill-treatment by relocating within Jamaica.
31. I am far from saying that the conclusion is in any way binding on either the Secretary of State or some future tribunal but it does add colour to the more general comment in AB that whether or not relocation within Jamaica is a viable alterative depends on an examination of all the circumstances.
32. Because of the view I have taken in relation to Article 3, it is not in my judgment, and Mr Buley did not seek to dissuade with me from this view, necessary to dwell on whether the Secretary of State was entitled to say that the Article 8 submissions were also clearly unfounded. As and when this matter is reconsidered by the tribunal, that of course may well be a matter for them to reflect on.
33. For all of these reasons, the application succeeds. The parties were agreed that if I was of that view, then notwithstanding the claimant has in the meantime been removed to Jamaica, I should quash the Secretary of State's certificate that the human rights claim was clearly unfounded. In my judgment, the Secretary of State could not rationally certify the claim. I will hear from the parties as to precisely what order ought to be made but it will include a provision that the Secretary of State take reasonable steps to bring the claimant back to the UK.
34. I again emphasise this does not mean that the claimant will necessarily be entitled to remain in the UK. All I have decided is that the Secretary of State was obliged to reach a decision that gave him access to a fresh appeal before what is now the First-tier tribunal.
35. MR BULEY: My Lord, I am very grateful. Can I mention two points for the transcript first. Your Lordship (Inaudible) particularly made a point that it is a fresh claim throughout the judgment. I am afraid it is actually a certification.
36. MR JUSTICE NICOL: It is a certification.
37. MR BULEY: I am sure your Lordship knows about BA (Nigeria), so it was an application to revoke (Inaudible).
38. MR JUSTICE NICOL: I see. I am sorry about that, I had not picked that up. I suppose I ought to ask both of you whether you think it makes any difference. I am sure you will say no, but Mr Poole?
39. MR POOLE: My Lord, no, it does not make any material difference.
40. MR JUSTICE NICOL: I am grateful to Mr Buley for pointing that out. If anybody needs a transcript and if I am asked to correct a transcript, I will try to make sure it refers to a certificate rather than a fresh claim. The test for whether the Secretary of State can certify or whether he has to recognise something as a fresh claim is indistinguishable.
41. MR BULEY: There has been a long running debate about whether there is any difference at all. YH is the (Inaudible) says there is not, so there it is.
42. MR JUSTICE NICOL: Thank you very much.
43. MR BULEY: My Lord, the second point on the transcript. This is a different kind of point and I am in your Lordship's hands about it. Your Lordship very carefully avoided reference to names of individuals and I am grateful for that. For reasons which are similar, in terms of the concerns which arise from them, I do not know whether your Lordship in the transcript would be willing to replace references to the Gem Street Gang with GSG or something of that kind.
44. MR JUSTICE NICOL: I think that is unavoidable because the Gem Street Gang (Inaudible) I am not sure --
45. MR BULEY: My concern it is not -- if someone reads the judgment and they know about the case, they are obviously going to work out who this is, there is no question about that. Having a reference of that kind may make it just that little bit more (Inaudible). I am not going to press it further, I am in your Lordship's hands.
46. In terms of the order, if I deal with that. I have predictable applications for costs.
47. MR JUSTICE NICOL: Shall we deal with that now? Mr Poole, what do you want to say about costs?
48. MR POOLE: No, certainly with principle costs, nothing.
49. MR JUSTICE NICOL: I will order that the Secretary of State pay the claimant's costs to be assessed if not agreed. Are you legally aided as well?
50. MR BULEY: Yes.
51. MR JUSTICE NICOL: I will order a detailed assessment of the claimant's publicly funded costs as well. The claimant's solicitor to be at liberty to indicate if he wishes to waive that right as sometimes happens when the party costs (Inaudible) give him everything he wants.
52. MR BULEY: That is new on me but I am grateful for that. There are some other bits of the order hopefully not too controversial but not utterly straightforward. If I just run through them (Inaudible).
53. MR JUSTICE NICOL: Yes.
54. MR BULEY: This is all routine. First of all, claim allowed, decision of 10 May, quashed.
55. MR JUSTICE NICOL: I am not going to quash the Secretary of State's own refusal. What I am quashing is the certificate.
56. MR BULEY: Yes (Inaudible).
57. MR JUSTICE NICOL: And -- wait a minute, if I quash the certificate --
58. MR BULEY: The one point which occurs to me about that, and I am fairly neutral about it, but I am just worried about running time limits and so fourth. It may be safe -- I do not know if my learned friend has thoughts about it. Certainly one must quash the certificate (Inaudible).
59. MR JUSTICE NICOL: If this is a certificate, it is a certificate because there were there was an immigration decision taken to refuse to revoke the deportation order.
60. MR BULEY: Yes, exactly, and that is a decision of 10 May. Plainly he is perfectly entitled to make another decision to that effect, he is just not entitled to certify it (Inaudible) but I confess I started wondering that when your Lordship gave judgment.
61. MR JUSTICE NICOL: What I want to achieve, Mr Poole, as you will gathered from my judgment, is that the claimant has another opportunity to appeal before the first tier tribunal.
62. MR POOLE: Yes.
63. MR JUSTICE NICOL: Can you and Mr Buley give some thought as to what is the necessary order for me to make in order to achieve that? What I would not want is for there to be some procedural argument, for instance as to whether a decision not to revoke a deportation order can be appealed after the deportation order has been fulfilled.
64. MR POOLE: My Lord, no. Certainly --
65. MR JUSTICE NICOL: Also the timing point.
66. MR POOLE: Yes.
67. MR JUSTICE NICOL: Again, it seems to me that while I cannot order you in unqualified terms to bring the claimant back because that is not within your power, I can order you to take reasonable steps to do so and if this can be achieved, it might be sensible for time to run from any appeal as from the time he comes back to the UK. I am not saying that has to be the case. I do not know how closely contactable he is and how quickly he could be brought back. If you are only talking about a day or two, it may not make any difference.
68. MR POOLE: I feel we will probably not simply for this reason; the claimant was removed on an emergency travel document.
69. MR JUSTICE NICOL: So he has to get another travel document?
70. MR POOLE: Yes. I am not saying that is going to take weeks but having said that, I am certainly not in a position to say until contact has been established with the Jamaica High Commission and the documentation prepared. I do not know how long it will be.
71. MR JUSTICE NICOL: Is he going to be able to get a plane ticket? I suppose that is something the Secretary of State could perhaps help him arrange without a visa. Can I ask the two of you to co-operate sensibly as I am sure you will on how this order ought to be framed?
72. MR POOLE: Yes.
73. MR JUSTICE NICOL: I am not going to ask you to do it at 4.50 pm on a Friday evening but I am going to ask you to do it pretty quickly and, if possible, can we say by Wednesday morning next week?
74. MR BULEY: For my purposes (Inaudible) we will want him back quickly, we will have to try a little bit more (Inaudible) if your Lordship said by Monday or even Tuesday. I do not think there is too much thinking to be done.
75. MR JUSTICE NICOL: Think about the order I should make in terms of what has actually been done in the past. That may be the easy part but what needs to be done in the future may need more thought.
76. MR BULEY: That seem to be a perfectly sensible (Inaudible). Can I just mention a couple of other quick things arising from it?
77. MR JUSTICE NICOL: Yes.
78. MR BULEY: First of all, one would hope, it is not for your Lordship to say anything now but just put down (Inaudible), that the drawing of the order need not delay (Inaudible) to taking steps. I just mention that (Inaudible) there it is. My Lord, two other aspects of the order I need to mention to you now, if I may. First of all, I will not go to the wall on this but we say we are entitled to a declaration that the Article 3 claim is not manifestly unfounded. Whether I need a declaration, I do not know.
79. MR JUSTICE NICOL: I think that is part of your discussions with Mr Poole.
80. MR BULEY: I am perfectly content with that. Secondly, my Lord, I think I used the phrase, "Previously best endeavours." Your Lordship uses the phrase reasonable steps and I think Mr Poole would press you to that. I do say that best endeavours is appropriate and can make a difference. Plainly there is no absolute entitlement, I entirely accept that, that must be right, but best endeavours is appropriate in my submission in a case where on the basis of what your Lordship has held, my client's life is presently at risk from a (Inaudible) in Jamaica.
81. MR JUSTICE NICOL: I think the phrase, "All reasonable steps," will be interpreted in the context of a client who arguably has an Article 3 risk where he is now.
82. MR BULEY: There it is.
83. MR JUSTICE NICOL: But at the same time, the Secretary of State cannot achieve what is impossible.
84. MR BULEY: No, that is plainly right and even best endeavours have that effect but anyway --
85. MR JUSTICE NICOL: All reasonable steps.
86. MR BULEY: May the order also include liberty to apply. There have been cases where (Inaudible) so I would ask for that. I understand Mr Poole does not object to that.
87. MR JUSTICE NICOL: It is not usual to have liberty to apply in a final order.
88. MR BULEY: It is not but it is not usual to have final orders of this kind. If problems are thrown up, much better to have that and it is not impossible that questions --
89. MR JUSTICE NICOL: What I suggest is that there be there be liberty to apply in relation only to that part of the order concerned with bringing him back.
90. MR BULEY: That is all I am asking, I am very grateful. My Lord, that is all I wanted to mention. I am sorry to take up time at the end of the day.
91. MR JUSTICE NICOL: Mr Poole, is there anything you want to raise?
92. MR POOLE: My Lord, no, as far as the section (Inaudible) is concerned. Certainly I hear what my learned friend says about time and I agree, practicalities. If your Lordship is saying by Wednesday, certainly we will liaise and try to do it sooner than that. If Wednesday next week would be convenient (Inaudible).
93. MR JUSTICE NICOL: This is about drawing up a formal order. If the Secretary of State is able to take steps in conjunction with the claimant's representatives before then and including this evening then that is all the more desirable.
94. MR POOLE: Yes.
95. MR JUSTICE NICOL: Thank you both very much and I am sorry I have had to keep everybody in court rather longer than I would have liked to on a Friday evening.