The Supreme Court last week rejected the Home Office’s attempt to keep Jamaica on the list of safe countries for asylum claims despite an estimated 10% of the population in Jamaica being subject to persecution because they are gay. This blow to the Home Office came the same week that the case of Aderonke Apata reached court again, leading to some startling submissions on sexuality being made to the court on behalf of the Home Office.

Is Jamaica safe “in general” despite persecution of LGBT community?

In R (on the applications of Brown (Jamaica)) v Secretary of State for the Home Department [2015] UKSC 8 Lord Toulson gives the majority judgment for the Supreme Court. The Home Office had succeeded in the initial case in the High Court but the Court of Appeal had overturned that decision, so the appeal to the Supreme Court was that of the Home Office. Very few cases reach the Supreme Court; the Home Office must have been very keen on winning.

The power to include countries on the safe list comes from section 94(5) of the Nationality, Immigration and Asylum Act 2002:

The Secretary of State may by order add a State, or part of a State, to the list in subsection (4) 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 Home Office argued that persecution of 10% of the population of a country did not preclude the Secretary of State from including a country on the list. The judgment is a fairly short one and the Home Office arguments are given short shrift. Lord Toulson ultimately decides the meaning of section 94(5) is the natural one:

I do not read the words “there is in general … no serious risk of persecution of persons, …” as meaning “there is no serious risk of persecution of persons in general”, and therefore as intended to permit the designation of a state which systematically carries out or tolerates persecution provided that it is limited so as not to affect the large majority. I read the words “in general” as intended to differentiate a state of affairs where persecution is endemic, ie it occurs in the ordinary course of things, from one where there may be isolated incidents of persecution.

He goes on to reason that the Refugee Convention is intended to protect minority groups and that persecution will almost always, by its nature, be directed against minorities. On the preferred approach of the Home Office, any country could therefore be placed on the safe list if some artificial threshold of percentage of population were used as a measure:

I am influenced by the fact that persecution within the meaning of the Refugee Convention will by its nature often be directed towards minorities (as Wilson J said in R (Husan) v Secretary of State for the Home Department [2005] EWHC 189 (Admin), para 55), and the great majority of asylum and human rights claimants belong to minorities of one kind or another. For a serious risk of persecution to exist in general, ie as a general feature of life in the relevant country, it must be possible to identify a recognisable section of the community to whom it applies, but to require it to be established also that the relevant minority exceeds x% of the population is open to several objections. The first is the absence of any yardstick for determining what x should be. If the Home Secretary was entitled to conclude that 10% was insufficient, would the same apply to 15%, 20% or 25%? It is no answer to say that it is a question of degree for the judgment of the Home Secretary, within a wide margin of appreciation, if there is simply no way of deciding it. Secondly, if it were possible to place a value on x, it is nevertheless hard to see any reason why it should make a difference whether the group represented, say, more than 20% or only 15%. Thirdly, in the case of many minority groups there will be no way of obtaining reliable information as to their total size for obvious reasons. Even without the risk of persecution, a person’s sexuality is a matter which many would prefer to keep private, and to disclose something which carries with it a serious risk of persecution is to court trouble.

When a country is included on the safe third country list this makes it far more likely that nationals of that country will be detained, their claims rejected and that they will not be able to appeal from within the UK. This is the whole point of the list. Quite why the Home Office wanted so desperately to ensure that this occurred to gays from Jamaica is a mystery.

How gay do you have to be?

Meanwhile, returning to the Aderonke Apata case, in short she has been refused asylum twice and the Home Office case is now that she is not a lesbian, as she claims, because she has got children and she did not used to look like a lesbian. The fact that she submitted sexually explicit material, has a female partner and has been actively campaigning for LGBT rights in the UK are insufficient, it seems.

The case has prompted an excellent quiz from The Mirror: Does the Home Office think you’re gay? A lot of people who thought they were gay are surprised to find that they’ve been wrong about that.

We're not gay enough for the Home Office. Are you? Take the test here: http://t.co/ZSa8xhQU2d pic.twitter.com/EfcNLRZxdo

— DIVA Magazine (@DIVAmagazine) March 6, 2015

Emily Dugan of The Independent reported the actual words used by the Home Office barrister:

The Home Secretary’s barrister, Andrew Bird, argued that Ms Apata was “not part of the social group known as lesbians” but had “indulged in same-sex activity”. He continued: “You can’t be a heterosexual one day and a lesbian the next day. Just as you can’t change your race.”

Other outlets report that the Home Office barrister as having suggested to the court that Ms Apata looked “feminine” in Africa, only adopting a “stereotyped lesbian appearance” after the refusal of asylum in the UK.

It is genuinely astonishing to see such ignorance stated in court and one is left wondering if these submissions accurately reflect the reasons stated by the Home Office in their reasons for refusal letter.

It is clear the Home Office has a lot of work to do ensuring that its admirable policies are actually enforced with its own staff and contractors.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

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