Brown, R (on the application of) v Secretary of State for the Home Department

J U D G M E N T

18th August 2003

1. MR JUSTICE CRANE: This is an application for judicial review of a decision by the Secretary of State for the Home Department on 14th May 2003 to refuse the claimant's asylum and human rights claims and to certify those claims for the purposes of section 94 of The Nationality Immigration and Asylum Act 2002. The claimant has appeared in person, following my refusal of an adjournment for reasons I gave earlier.

2. Mackay J granted limited permission on 24th June 2003 in the following terms:

"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.

3. The claimant is a Jamaican national who first came to the United Kingdom on 5th February 2000. He was given six months leave to enter as a visitor. Later that term was extended and he was permitted to stay as a student, but his last extension of stay as a student expired on 30th September 2001. On 7th November 2002 he was removed to Jamaica as an over stayer.

4. On 11th December 2002 the claimant returned to the United Kingdom under the name Tyrone Nicolas Muir and claimed asylum on arrival. He was interviewed in that connection on 15th December and gave an account in interview that was different from the account he gives now. On 25th December 2002 the claimant was removed from the United Kingdom after withdrawing his asylum claim, a removal that was, in my view, not accurately described as "voluntary" because plainly he was not anxious to go.

5. In February 2003 he returned to the United Kingdom using the name Robert Graham. On 4th May 2003 the claimant was arrested for a motoring offence, and when he was interviewed he claimed asylum on 5th May 2003. He was transferred to Oakington, subjected to the accelerated procedures and interviewed in connection with his asylum claim on 11th May 2003. Following further representations on his behalf by the Refugee Legal Centre, who were then representing him, the decision of the Secretary of State was made, as I have indicated, on 14th May 2003. Both the asylum and human rights claims were refused and the claims were certified under section 94.

6. On 24th May the applicant made his application for judicial review. On 20th June, at the same time as the acknowledgment of service, the Secretary of State indicated that he had reviewed the claimant's case in the light of information about the previous asylum claim, and there is a supplementary letter dated 20th June 2003 to which I shall return.

7. Jamaica is in fact designated under section 115(8) of the 2002 Act. The Secretary of State may add a state to the list in subsection (7) 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 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.

8. The way in which the test "clearly unfounded" is to be considered was the subject of a judgment in the Court of Appeal in ZL and others v Secretary of State for the Home Department [2003] EWCA CIB 25. The crucial part of that judgment, giving guidance to decision makers, is at paragraphs 57 and 58. It is not necessary to set out that well-known passage here.

9. Although it appears that the original claim by the claimant was put forward on both asylum and human rights grounds, it is apparent from the further representations of the Refugee Legal Centre of 13th May 2003 that they were pursuing the human rights claims rather than the asylum claims. Although those asylum claims were not described formally as being abandoned, in my view effectively they were, and, indeed, unless the claimant can show a case for present purposes on human rights grounds, there would be no prospect of success on asylum grounds.

10. The material before me includes not only the original material put forward with the claim, but, so far as the claimant is concerned, additional material submitted for the purpose of this application for judicial review. That further material includes the following: a further witness statement by the claimant received in the Court Office on 7th August, although not signed, a statement (also unsigned) from Mr Michael Fraser, and a statement (also unsigned) from the claimant's mother, Mrs Burma Buckley. I have considered those statements, although they have not been signed. In addition there is an opinion relating to conditions in Jamaica from a member of the Jamaican bar, O Hilaire Sobers. It appears that a statement was also taken from a Mr Ian Thompson, but the information before me is that, although a statement was prepared, it was never approved and it is not before me.

11. I turn to the claimant's account of events that he relies on. His account is summarised helpfully in the statement of facts annexed to the claim. In 1999 he witnessed a murder committed by a man called Mark, a leading member of a powerful gang in Kingston. Mark and the claimant were known by sight to each other. Mark was subsequently arrested and informed other members of his gang that the claimant had been a witness to the murder. The murder was of a young girl, Taisa, some 16 years old.

12. The claimant asserts that the gang therefore decided to get rid of the claimant, believing him either to be an informer or a potential witness against Mark. Members of the gang threatened to kill the claimant and burn down his house on three occasions during a period of about four weeks after the murder. On one of those occasions, I should add to the account given in the statement of facts, it is said that a member of the gang who visited the house showed to the claimant and his mother a firearm. The claimant and his mother say that they went to the police on each of three occasions when the threats were made, but the police did nothing in response. In fear of the gang the claimant says that he left his home in Mountain View, a part of Kingston, and went to Ocho Rios about 150 miles away. However, after his arrival there, he learned that he had been located there by the gang.

13. The claimant's mother also left her home in Mountain View to escape the continuing threats. She subsequently came to the United Kingdom and, it is accepted, now lives here.

14. The claimant then in the statement of facts recounts how he came to this country. He says that after he was removed in November 2002 he stayed with a friend in Mountain View, but his location was again discovered by the gang and he went into hiding, following which he returned to the United Kingdom on the two further occasions.

15. It is right to say that the decision letter of the 14th May proceeded on the basis of the facts as relied on by the claimant. In other words, that he had been a witness to a murder in Kingston and was targeted as a result because the gang thought at least that he was an informer, or potential witness.

16. It was rightly accepted by the decision letter that articles 2 and 3 of the European Convention on Human Rights may be engaged if a person is targeted in the way that the claimant complains. In other words, if those in gangs in Kingston, who plainly cannot be regarded as agents of the state in Jamaica, target someone in the claimant's position his right to life and his right not to be subjected to inhuman or degrading treatment or punishment may be in jeopardy. In paragraphs 9 to 16, however, of the decision letter the Secretary of State set out why, in his view, there was effective protection available by the authorities in Jamaica. He accepted that there were serious problems of law and order in Jamaica, particularly in Kingston, but he set out the steps taken by the Jamaican authorities to improve the enforcement of the law. In my view, the Secretary of State did not on the information and evidence available to the Court understate the problems of law and order. The question is whether the decision in relation to protection can be justified.

17. The principal authority on effective protection remains the decision of the House of Lords in Horvath v Secretary of State for the Home Department [2001] 1 AC 489. That case was dealing with the Refugee Convention. There are two passages frequently cited in the opinions of the members of the House of Lords to which it is worthwhile paying attention. At pages 499 to 500 Lord Hope of Craighead said this:

"... 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."

18. At page 500 Lord Hope also said this:

"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 [2000] 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."

19. Lord Hope further said at page 501:

"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."

20. In the further case of R (Dhima) v Immigration Appeal Tribunal IMMAR 394 Auld LJ said this at page 404:

"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."

21. It must be remembered that in the case of Horvath what was being considered was the Refugee Convention and the House of Lords was considering sufficiency of protection in the context of possible attacks on an unpopular minority. That was why the House of Lords referred to "isolated and random attacks".

22. The problem arising in such cases from Jamaica is not necessarily of such isolated and random attacks, but rather of targeted attacks on informers and suspected informers. It is clear in my view that such attacks may raise different considerations from the kind of attack considered in Horvath . In my view the test remains whether the state has the ability and willingness to protect, although it must be borne in mind that article 2, the right to life, sets out a right which is unqualified. However, plainly a state cannot guarantee safety to informers, and in certain ways the difficulty of guaranteeing such safety to informers, or suspected informers, may be greater than in preventing random attacks on an unpopular minority.

23. I am prepared to accept that the Secretary of State in paragraph 9 of his decision letter did address the question of protection from gang related crimes. However, as Miss Giovannetti, on behalf of the Secretary of State, concedes, there is no specific evidence in this case relating to measures of witness protection whether in the strict sense or generally. If I put on one side the question of relocation I should have held that the Secretary of State was not entitled on the evidence that he cited, and the evidence available to me, to conclude that there was sufficiency of protection for humans rights purposes in relation to the protection of informers and suspected informers. 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. There might be in another case evidence relating to that topic and indeed the effect of quashing a certification is that the matter goes forward to an adjudicator, and to an adjudicator with the claimant remaining in this country. Then everything would depend on the evidence available.

24. However the Secretary of State went on to consider whether relocation to another part of Jamaica would provide sufficiency of protection, even if, by implication, it was not available in Kingston, or in the particular area from which the claimant came. The Secretary of State dealt with that in paragraph 14 of his decision letter:

"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.

25. It is instructive to compare, as Miss Giovannetti invited me to do, the statement made by the claimant in support of his original application and, in particular, at paragraph 15. The claimant concedes in that paragraph that he went to Ocho Rios because he thought that would be the safest place for him in Jamaica. He accepted that there was extra security there and that the police patrolled the roads, particularly because it was a famous tourist destination. He said in his statement that he left Ocho Rios after that because he heard that Mark's friends had found out that he was in Ocho Rios. However, he does not assert that he took any steps to try to obtain police protection in Ocho Rios, and in my view the Secretary of State was entitled to reach the conclusion and to certify his conclusion that relocation offered sufficiency of protection in this particular case.

26. That, as with my conclusion in relation to sufficiency of protection in Kingston, is not intended to be, and cannot be, a general statement as to sufficiency of protection outside Kingston. It is a finding relating to this particular case and the evidence available in relation to the particular case. Plainly the threat to any particular person may vary from case to case and each case must be considered individually. I point out that, although Jamaica has been designated as generally safe, although the claimant would I am sure very much disagree with that conclusion, in a case such as this where an informer, or suspected informer, is in question it is always going to be necessary to consider with great care whether sufficiency of protection exists for the particular individual in the particular circumstances he finds himself. It plainly cannot be dealt with on the basis of general considerations about law and order in Jamaica.

27. For the reasons I have given in relation to relocation, I would dismiss this application. However, in case I am wrong in that conclusion, it is necessary to consider the question of credibility.

28. The Secretary of State after reaching his original conclusion later laid his hands on a copy of the interview which the claimant had undergone on 15th December 2002 when he first made an asylum claim. At that time, using the name Muir, the claimant was putting forward an asylum claim on the basis that his cousin was shot and killed by a gang member in November 2002 while playing football. He claimed at that interview that he, the claimant, had reported the man responsible for the shooting to the police two days later, that the police arrested the man, but released him the following week. The claimant said that about a week after that the man, together with other gang members, came to the shop where he worked and fired shots. The police were called, but they did not catch up with the men concerned. The claimant also said that four days after that incident, while he was staying with a cousin, gang members began shooting up his cousin's house. He said that the police did not offer protection from the gang members because the police were friendly with them.

29. It is clear that that account, although also an account of fear and intimidation in relation to members of a gang, was completely different from the account put forward by the claimant in May of this year and the claimant does not assert that the December 2002 events ever happened.

30. If I were wrong in my primary conclusion and that the application should otherwise be allowed, it would be necessary to consider whether, if the decision was quashed and went to a hearing in this country before an adjudicator, there would be a real possibility of findings in the claimant's favour in relation to credibility.

31. I have read the draft further statement of the claimant in which he seeks to explain why he gave a different account at that time. I particularly asked the claimant in Court if he could assist me by accounting for the false story, as he asserts it was, in December 2002. He seeks to explain the difference by his continuing fear and he asserts that at the outset of the interview with immigration officers in December 2002 those officers were wholly unsympathetic and unreceptive to his fears.

32. I note, as did the Secretary of State, that at no time in the year 2000, or until his initial removal from this country in November 2002, had the claimant made any asylum or human rights claim, or asserted to the authorities here either of his accounts of intimidation in Jamaica. I put on one side for present purposes the fact that the intimidation was never mentioned and asylum was not claimed in the years 2000 or 2001, until November 2002, on the basis that if the claimant was able to stay in this country on another basis he might have thought that he did not need to claim asylum. But in December 2002 he did need to claim asylum and indeed initially did so. It is very difficult for me to understand why if there was a genuine account of intimidation as a suspected informer that was not given and a wholly false account given instead. It does not appear to have been a case of improving on an account in the hope that the improved account would be more likely to succeed. The original account was, as it were, quite good enough, and any tribunal of fact would need to ask why the truth was not told if the truth would do just as well.

33. In my view, the claimant, if this matter had gone to a tribunal, or indeed been furthered considered by the Secretary of State, would inevitably have encountered insuperable difficulties of credibility. Had I been otherwise minded to allow the application, I would, as a matter of discretion, have refused judicial review simply because if the matter proceeded the claimant's arguments and case stood no prospect of success on any realistic basis.

34. For those reasons I dismiss the application for judicial review.

35. MISS GIOVANNETTI: My Lord, there is no application on this side of the Court.