The Supreme Court unanimously dismissed the appeal by the appellant Home Secretary against the Court of Appeal majority ruling that the decision to include Jamaica on the list of states designated under the Nationality, Immigration and Asylum Act 2002, s 94(4), was unlawful.
The respondent was detained pending a decision on his removal, pursuant to a fast-tracking procedure as Jamaica was on the list of states designated under s 94(4) of the Act. He issued a claim for judicial review seeking a declaration on the grounds that his detention had been unlawful and the decision to place Jamaica on the s 94(4) list was unlawful as well, due to the real risk of persecution in Jamaica for homosexuals. The Deputy High Court Judge dismissed both of the respondent’s grounds. The Court of Appeal unanimously ruled that his detention had been unlawful and held by a majority of 2-1 that Jamaica had unlawfully been placed on the s 94(4) list.
The Supreme Court stated in dismissing the claim that s 94(5) of the Act reads as referring to countries where its citizens are free from any serious risk of systematic persecution either by the state or by non-state agents. It does not require the persecution to affect any particular percentage of the population. Rather, the persecution must be a general feature of life in the country and apply to a recognisable section of the community.
Lord Toulson stressed that requiring the group persecuted to exceed a percentage threshold is open to several objections: there is no way of determining that threshold; it is hard to see why it should make a difference whether a group just exceeds or just falls below the threshold; and, there would be no way of obtaining reliable information about the size of many minority groups. The leading authorities do not contend otherwise.
Karon Monaghan QC intervened in this case.