Atkinson, R (On the Application Of) v Secretary of State for the Home Department

This is an application for judicial review of the decision made by the Secretary of State for the Home Department on 15 April 2003 to refuse the Claimant’s asylum and human rights claims and to certify the claims as being clearly unfounded for the purposes of Section 94(2) of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”). The effect of a Section 94(2) certificate is that, subject to limited exceptions, which do not apply in the present case, the Claimant does not have an in-country right of appeal under Section 82 of the 2002 Act.

On 4 June 2003 Maurice Kay J granted permission to apply for judicial review on the papers, observing that

“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 [2003] EWHC 2045 (Admin)). There has also been a reasoned permission decision, following oral argument (R (Hylton) v SSHD [2003] EWHC 1992 (Admin), in which Richards J gave permission to rely on the judgment).

The Claimant is a citizen of Jamaica who entered the United Kingdom on 21 February 2002 on a visitor’s visa for six months. He claimed asylum on 2 April 2003 after being arrested as a person who had 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.

The claim for international protection is based upon the Claimant’s fear that if returned to Jamaica he would face mistreatment or persecution due to his imputed political opinion as a result of the perception of him as an informer for the People’s National Party (PNP), and also because of his claim that he is perceived as a homosexual because he worked with a homosexual man, contrary to Articles 2 and 3 of the ECHR.

This application raises the following issues in relation to the decision of the Secretary of State:

It is now accepted by the Claimant that the Secretary of State could reasonably include Jamaica in the statutory list (Section 94(5) of the 2002 Act) as a place where:

“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.

The parties agree that the Secretary of State correctly recorded the material facts in the Decision Letter of 15 April 2003. The Secretary of State summarised the Claimant’s claims in his substantive interview of 6 April 2003 and in further representations and a Signed Statement in the following terms:

“(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.”

The question for the court on an application for judicial review is whether the Secretary of State was entitled to be satisfied that the claims were clearly unfounded. The Court of Appeal has recently given guidance on the approach to be adopted when considering this question. In R (on the application of L and another) v Secretary of State for the Home Department (2003) 1 All ER 1062 Lord Phillips of Worth Matravers MR said

“[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”.

The Claimant contended that he had been the victim in the past of forms of ill-treatment properly characterisable as torture. Mr Jones, on his behalf, contended that though no specific statutory exception exists excluding a victim of torture from certification under Section 94, “as a matter of good practice and in the interests of justice”, such persons should not be subject to the draconian procedures implemented in the section, not least because their past experiences suffice without more to demonstrate that their claim is not without foundation. In my judgment Mr Fordham, on behalf of the Secretary of State, is correct in his submission that this would involve writing a torture exception into the statute. The Secretary of State when applying the statutory test must assess all the evidence, including the seriousness of any ill-treatment. However, there is no bar on certification in a “torture” case.

The proper approach to “sufficiency of protection” was made clear by the House of Lords in Horvath v Secretary of State for the Home Department (2001) 1 AC 489. Lord Hope summarised the relevant principles as follows:

“... 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).

A useful starting point for the purposes of assessing sufficiency of protection in the present case is to consider what is not in dispute between the parties. It is not disputed that Jamaica has a very high rate of serious crime, with the highest ever murder rate in 2001 (over 1100 murders in a population of 2.6m). The problems of serious violence are especially acute in what are called “garrison communities” which are dominated by criminal gangs linked to drugs and tied to political parties. As the Secretary of State notes in the Decision Letter (at para 16):

“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.”

Initiatives have been taken by the Jamaican authorities to protect against gang violence. These are summarised by the Secretary of State in paragraphs 10-14 of the Decision Letter. They include the following:

So much is agreed. The Claimant’s case is that the Secretary of State has failed properly to consider the “practical” impact of these reforms and that he has underestimated the scale and entrenched character of the problems existing in Jamaica for effective law enforcement. Mr Jones has directed my attention to various passages in the Home Office Country and Information Policy Report for April 2003 (CIPU) and the US State Department Report 2002 which was published on 31 March 2003 (USSDR). He submits that these Reports reinforce the Claimant’s contention that despite the much vaunted programme of reforms apparently initiated by the Jamaican Government violent crime remains prevalent, as does police brutality and arbitrary arrest and detention; members of the security forces continue to commit unlawful killings with impunity; and the judicial system is overburdened and frequently ineffective. Mr Jones has also referred me to passages in the Report of Amnesty International dated 8 September 2003 and the expert report of Mr Hilaire Sobers (which was originally commissioned for the case of R (on the application of Brown) v Secretary of State for the Home Department (2003) EWHC 2045 Admin). Those two reports focus, in particular, on the failure of crime initiatives, the symbiosis between politics and crime and the real risk of serious violence to informers. Both reports confirm the risk of severe violence to those considered to have contravened the interests of their garrison communities, including those designated informers, together with their families and those that shelter them; they emphasise the real limitations on the state’s ability to intervene.

Mr Fordham responds by making the point that whatever criticisms may be made in respect of the current situation in Jamaica the Claimant has failed to identify any step which it is said is a proper step which responsible authorities should have taken to protect their citizens. In R (on the application of Mehmet Gezer) v Secretary of State (Co/917/2002, 14 April 2003) Moses J referred to the “reasonably available measures” test (para 31). Further, the Secretary of State noted that the Claimant had not made any report to the Jamaican authorities regarding any of the incidents against him. Moreover, he declined to provide information to the police when they questioned him regarding the attack on him which required three months hospitalisation. In those circumstances it was reasonable for the Secretary of State to form the view that the Claimant could have attempted to seek redress through the proper authorities before seeking international protection (see Decision Letter, paras 8 and 9).

Mr Fordham also relied upon the recent decision of the Immigration Appeal Tribunal in Tullock (2002) UKIAT 07705 where the Tribunal was satisfied that there is a system of law enforcement in Jamaica which the authorities are willing to put into effect when it comes to dealing with gang warfare. This decision, it is said, supports the view of the Secretary of State that it would have been open to the Claimant to make a complaint to the appropriate authorities with regard to the threats of violent actions occasioned by the suspicion that he was an informer. Mr Jones submitted that the decision was distinguishable on its facts and that the Tribunal did not have before it the more recent reports that are before the court in the present case.

One decision on which Mr Jones placed particular reliance was R (on the application of Brown) v Secretary of State for the Home Department (2003) EWHC 2045 Admin. However, in my view a proper analysis of this decision illustrates the importance of considering each case on its own facts. As Crane J observed in Brown that whilst the Secretary of State in that case was not entitled on the evidence to conclude that there was sufficiency of protection for human 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” (para 23).

The facts of Brown are plainly distinguishable from the present case. The Claimant in Brown was a known witness to a murder by a leading gang member of a young girl. He was “an informer or a potential witness” whom the gang had threatened to kill (paras [11] - [12]). It was in those circumstances that Mr Sobers’ report emphasised the shortcomings of the Jamaican “witness protection programme” (para 57). Crane J concluded that there was insufficient evidence that proper steps had been taken to provide proper witness protection for a person in the Claimant’s position if returned to the same locality. I accept Mr Fordham’s submissions that the Claimant in the present case does not share the same characteristics as the claimant in that case. He did not witness any murder by a gang member. He does not say he would need, or wish for, protection under a “witness protection scheme”. He uses the label “informer” not to refer to a person who has witnessed a crime but to the set of facts summarised in the Decision Letter (see para 7 above).

In my judgment there is a sufficiency of protection for the Claimant in Jamaica.

The Claimant has stated that he is not homosexual. His case is that he is perceived as being homosexual and his account (see para 7 at (e) above) provides a basis for concluding that he has a viable refugee or human rights claim.

The Secretary of State noted that “there are numerous reports of acts of violence against suspected homosexuals, carried out by members of the public” and that “the police are widely perceived as homophobic and there are credible reports of homosexuals being denied police protection from angry citizens (Decision Letter, para 20). However the Secretary of State considered that given that the Claimant has asserted that he is not homosexual, there is redress through the authorities without fear of imprisonment (para 21). The reference to “imprisonment” suggests there is nothing in Mr Jones’ point that the Secretary of State does not make express reference to the fact that homosexuality is a criminal offence in Jamaica; that must have been known to the Secretary of State.

Mr Jones relies on the Amnesty Report and in particular the conclusions which begin with this paragraph:

“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.)

In my judgment the Claimant has failed to bring himself within Articles 2 or 3 or to show that there is the required substratum fact that he will be subject to substantial discrimination and/or violence and abuse in Jamaica on account of his alleged perceived homosexuality.

The Claimant contends that on the particular facts of the instant case there is no arguable basis for concluding that internal relocation is a viable alternative. In support of this contention Mr Jones relied on the case of A v Secretary of State for the Home Department (2003) EWCA Civ 175. However there are important distinguishing features between that case and the present. A was a case of a woman who had given the police the name of a gang member who had killed her young daughter, as a result of which other family members had been killed. She had specifically attempted internal relocation, and had been informed that she would not be forgiven by those against whom she had informed. Further, the appellant in A was found to be at risk of sexual abuse and vulnerable as a woman (paras 9-12 and 32). As Crane J observed in Brown any conclusion as to relocation must depend on the facts and evidence in the particular case (paras 25 and 26).

The evidence in the present case does not support the Claimant’s assertion that relocation is not viable. Although the Claimant’s statement expressed fear that the gang “would find me wherever I was in Jamaica” (para 20), what the Claimant said which caused him to leave after the attack in February 2002 was that

“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)

(paras 16-17)

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)

He continued:

“... 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)

The Secretary of State noted in the Decision Letter that the Claimant’s home is in the southern part of the Parish of St Andrews which is one of the notorious problem areas; almost a quarter of Jamaica’s murders take place in St Andrews (South) (para 22). The Secretary of State considered that it would be reasonable to expect the Claimant to relocate to an area of Jamaica where gang violence is less prevalent (Decision Letter, para 22). In this connection it is pertinent to note that the description of the garrison community, relied on in the Amnesty Report (p2) is of a community :

“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 Fordham submits that to the extent the present case is comparable with the case of Brown it is difficult to follow how on the basis of the evidence and the expert reports in the two cases a different conclusion to that of Crane J who upheld the certification as “clearly unfounded” on the issue of relocation to another part of Jamaica (paras [24] - [27]) could be reached in the present case.

Mr Jones realistically accepted that if the Claimant succeeded on sufficiency of protection only in relation to his perceived homosexuality, he could not object to relocation on that ground. In a new area there is no reason why he should be perceived as being homosexual.

A comparison between the Claimant’s conditions and circumstances in the place where he maintains he has reason to fear persecution and those that he would be faced with on internal relocation do not suggest it would be “unduly harsh” to expect him to relocate. (R v Secretary of State for the Home Department ex parte Robinson (1998) QB 929 at 939-940; and AE and FE (Appellant AE and Appellant FE) (2003) EWCA Civ 1032).

I am quite satisfied that relocation is perfectly viable for the Claimant.

In my judgment the Secretary of State has committed no error of law. The Claimant’s asylum and human rights claims were certified because the Secretary of State considered, as I do, that they are “clearly unfounded”. Accordingly, this application for judicial review is dismissed.