MD is a national of Gambia. He challenged by way of judicial review the decision of the SSHD to include Gambia, in respect of men, on the list of “safe” countries (designation). He also challenged the SSHD’s related decision to certify his case as clearly unfounded (certification). Both grounds of challenge were dismissed by Mr Justice Beatson in February 2010.
The effect of certification is that an appellant is not entitled to an in-country right of appeal to the First Tier Tribunal. Usually, if the certificate is set aside, an in-country right of appeal will follow, but in this case MD had already been sent back to Gambia having unsuccessfully tried to resist deportation. MD had enough contact with his solicitors to give instructions since return in order to challenge the decision of Beatson J, but his particular circumstances were unknown.
Was designation lawful?
Applying R (on the application of Javed and others) v SSHD  EWCA Civ 789 the Court held that the decision to designate is one conferred on the SSHD who is accorded a wide margin of discretion.
To successfully challenge designation, it is not enough to demonstrate occasional breaches of human rights standards in the country concerned – even where they amount to persecution. The persecution must be sufficiently systematic to be properly described as a “general feature” in that country, and this in turn requires that it should affect a significant number of people.
The Court first considered the scope of the order, and specifically whether it applied to male children as well as male adults. This was important because there was good evidence ‘showing children were potentially vulnerable.’ If the order applied to male children, the SSHD accepted such evidence would render the order unlawful. However, the Court held that although age is a potentially relevant attribute which the SSHD could invoke, the natural reading of the designation in this case meant it applied to adult males only. If the order had meant to include male children (as opposed to female children) it would have said so. Accordingly, evidence of maltreatment of children in this instance did not assist the appellant’s case. The focus therefore was on the treatment of adult males only.
In order to show a risk of persecution affecting a significant number of the populace, MD relied upon a range of country information from documents in the public domain that emphasised the cumulative effect of ongoing human rights abuses. Having regard to those matters, the Court reminded itself that the question is not whether the court would consider it appropriate to list Gambia, but whether the Secretary of State was entitled to do so.
The Court concluded that the extent of human rights’ abuses meant numerous different social groups were affected. Although that was ‘troubling,’ the SSHD was nevertheless entitled to conclude that any human rights infringements were not so systemic or general as to compel the conclusion that Gambia could not properly be designated as a safe country.
The applicable test for certification was different to designation, as explained by Lord Phillips in ZT (Kosovo) v SSHD  UKHL 6:
“Where, as here, there is no dispute of primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer…There is no way that a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State’s view was irrational.”
The Court held that this high test for certification was not satisfied in MD’s case because even though the country information was not enough to preclude listing Gambia as a “safe” country, it did not follow that a tribunal on appeal could not conclude that the country evidence, when considered in the context of the particular facts in this case, created a real risk of serious harm. The fact MD was mistreated in the past lent some support to that possible conclusion.
The Court of Appeal’s decision means the order was quashed and that MD would now be able prosecute an appeal to the tribunal in country, but since he is in Gambia and his fate unknown the decision sadly may well be phyric.