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The SC, in a unanimous judgment dismissed the appeal of the SSHD against the majority view of the CA allowing the R’s appeal. The CA had decided, where a serious risk of persecution exists in a state for an entire section of the community, then it cannot be said there is “in general” no serious risk of persecution in that state. The state is Jamaica and the community is the LGBT community. Consequently, it was unlawful to place Jamaica, pursuant to s94(5) of the NIA 2002, on the list of states in which claims are presumed to be “clearly unfounded”. The majority of the SC agreed with the judgment of Lord Toulson. Lord Hughes, although concurring with the result, giving a minority judgment. Of note:

i. The expression “in general” in section 94(5) NIA 2002 is taken to mean that persecution occurs in the ordinary course of things as opposed to isolated incidents;

ii. The inclusion of a state on the s94(3) NIAA 2002 list of countries does change the complexion of the analysis given to the claim of someone from that state;

iii. The CA were right to refuse to admit Hansard material as the language of s94(5) is not ambiguous, statements relied upon in Hansard did not have the requisite degree of clarity and nothing said during the debate on the Order could be admissible as an aid to construing the parent Act. In relation to the latter reason, this however is not a rigid rule e.g. where the wording of the later Act is materially identical to that of the Order;

iv. Generally speaking, a later amendment to an Act cannot affect the construction of an Act as originally enacted. As such, the later introduction of s94(5A) to (5C) to NIA 2002 should not influence the interpretation of s94(5); and

v. Lord Hughes, although concurring with the result, took the view that the expression “in general” in s94(5) of NIA gives the SSHD a degree of flexibility in considering the manifold different political and social situations which may arise in different foreign states. The SSHD should not be prevented from designating a state under s94(4) on the basis that a group or section of the community may suffer persecution. The SSHD, in any event, is required to give individual consideration to each case before reaching a decision whether to certify the asylum claim as clearly unfounded. If certification is challenged, then this is to be given the most anxious scrutiny by the courts.

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