Husan, R (on the application of) v Secretary of State for the Home Department

Factual and Procedural Background

The Plaintiff, a citizen of Bangladesh, claimed asylum in the United Kingdom under the Refugee Convention 1951 and asserted that returning to Bangladesh would violate his rights under the Human Rights Convention 1950. The Defendant refused these claims by letter dated 26 November 2003 and issued a certificate depriving the Plaintiff of the right to appeal while remaining in the United Kingdom. The Plaintiff sought judicial review challenging the lawfulness of this certificate.

The case centrally concerns the application and legality of section 94 of the Nationality, Immigration and Asylum Act 2002 ("the Act"), specifically the Defendant's power to add Bangladesh to a list of states ("the list") under section 94(4) and (5), which affects the Plaintiff's right to appeal. The Plaintiff contends that the Defendant's addition of Bangladesh to this list was unlawful and that the certification of his claim as clearly unfounded was improper.

The Plaintiff’s personal history includes political persecution in Bangladesh due to his change of political allegiance and targeted attacks by a student political group. The Defendant refused the Plaintiff’s claims on grounds including failure to seek effective protection from authorities and the availability of internal relocation within Bangladesh.

Legal Issues Presented

1. Whether the Defendant lawfully exercised the power under section 94(5) of the Act to add Bangladesh to the list under section 94(4), certifying that there was in general no serious risk of persecution or human rights violations for persons entitled to reside there.
2. Whether the Defendant’s certification of the Plaintiff’s asylum and human rights claims as clearly unfounded under section 94(2) and (3) was lawful in light of the inclusion of Bangladesh in the list.
3. The scope and application of judicial review and the margin of appreciation afforded to the Defendant in decisions to designate states under the Act.
4. The legal effect of inclusion in the list on an asylum claimant’s right to appeal within the United Kingdom.

Arguments of the Parties

Appellant's Arguments

• The Defendant could not reasonably have been satisfied that Bangladesh met the criteria in section 94(5) of the Act, namely that there was no serious risk of persecution or human rights violations generally affecting persons entitled to reside there.
• The objective material available both at the time of listing and subsequently demonstrated widespread and systemic human rights abuses in Bangladesh, including violence against women, children, religious minorities, political opponents, and tribal peoples.
• The Defendant’s failure to remove Bangladesh from the list despite ongoing deteriorations in human rights conditions was unlawful.
• The Defendant’s certification of the Plaintiff’s claim as clearly unfounded was thus unlawful as it was based on an unlawful inclusion of Bangladesh in the list.

Respondent's Arguments

• The Defendant’s decision to include Bangladesh in the list was rational and within the margin of appreciation, considering Bangladesh’s constitutional protections, ratification of UN human rights treaties, parliamentary democracy, and an independent higher judiciary.
• Persecution and human rights abuses in Bangladesh were not sufficiently general or serious in the sense required by section 94(5) to preclude inclusion in the list, relying on precedents emphasizing the need for the risk to affect a significant number of the populace as a general feature.
• The low rate of successful asylum claims from Bangladeshi nationals supported the conclusion that Bangladesh was generally safe for returnees.
• The Plaintiff’s refusal to seek protection from authorities and the availability of internal relocation justified refusal of his claim and certification under section 94(2).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R on the application of Javed and Others v Secretary of State for the Home Department and Another [2002] QB 129	Judicial review of the Secretary of State’s decision to include a state in a list of safe countries requires showing that the evidence clearly establishes a serious risk of persecution generally affecting the country; a margin of appreciation is afforded.	The Court applied the principle that the Defendant’s decision to include Bangladesh must be rational and within a margin of appreciation, but found that the evidence did not justify inclusion.
R on the application of Balwinder Singh v SSHD [2001] EWHC Admin 925	Localized human rights abuses do not necessarily preclude a rational conclusion that there is no general serious risk of persecution in the entire state.	The Court distinguished localized abuses in India from the broader systemic issues in Bangladesh, finding the latter more pervasive and general.
Horvath v SSHD [2001] 1 AC 489	The Refugee Convention requires a system of effective domestic protection; failure or inability of the state to provide such protection engages the Convention.	The Court recognized that state failure to protect against persecution or human rights abuses satisfies the Convention’s protections.
R (L and another) v SSHD [2003] 1 WLR 1230	Interpretation of the certification tests in sections 94(2) and 94(3) of the Act and their practical equivalence.	The Court held the terminological difference between sections 94(2) and 94(3) is without measurable legal effect, guiding the analysis of certification in this case.

Court's Reasoning and Analysis

The Court began by examining the statutory framework under the Nationality, Immigration and Asylum Act 2002, focusing on section 94, which governs appeals from within the United Kingdom where claims are certified as clearly unfounded, and the power to designate states as safe under section 94(4) and (5).

The Court noted that the Defendant had added Bangladesh to the list by order, following parliamentary approval, and that this designation had the effect of restricting the Plaintiff’s right to appeal from within the UK pursuant to section 94(3).

In considering the legality of the designation, the Court reviewed extensive objective material from the Defendant’s Country Information and Policy Unit (CIPU) reports and other credible sources, demonstrating widespread and systemic human rights abuses in Bangladesh, including police brutality, political violence, discrimination against minorities, and violence against women and children.

The Court applied the legal principles established in the leading case of Javed, which affirms that the Defendant’s decision is subject to judicial review with a margin of appreciation but must be rational and based on the evidence. The Court recognized that the risk of persecution must be serious and generally affect a significant number of the populace.

While the Defendant argued that the abuses were not sufficiently general or serious to preclude listing Bangladesh, the Court found that the material showed pervasive and systemic problems affecting multiple substantial groups within the population, including women, minorities, political opponents, and children.

The Court rejected the Defendant’s reliance on low asylum grant rates as insufficient to demonstrate safety, noting that such statistics may reflect a high number of unfounded claims rather than actual safety in Bangladesh.

Accordingly, the Court concluded that no rational decision-maker could have been satisfied that Bangladesh met the statutory criteria for inclusion in the list, either at the time of listing or subsequently.

Regarding the Plaintiff’s individual claim, the Court found the Defendant’s refusal justified on the basis that the Plaintiff had not shown he could not relocate safely within Bangladesh, and no evidence suggested a national-level threat comparable to other cases relied upon by the Plaintiff.

Holding and Implications

The Court held that the Defendant’s inclusion of Bangladesh in the list under section 94(4) of the Nationality, Immigration and Asylum Act 2002 was unlawful because the Defendant could not have reasonably been satisfied that the statutory criteria were met.

However, the Court dismissed the Plaintiff’s claim for judicial review in respect of the certification of his individual asylum and human rights claims, finding the Defendant’s refusal lawful based on the facts of the Plaintiff’s case, particularly the availability of internal relocation.

The direct effect of this decision is that Bangladesh should not be regarded as a designated state under section 94(4), affecting the certification and appeal rights of asylum seekers from Bangladesh. No new precedent was established beyond the application of existing principles concerning judicial review, margin of appreciation, and statutory interpretation of the Act.