Husan, R (on the application of) v Secretary of State for the Home Department [2005] EWHC 189 (Admin)

[2005] EWHC 189 (Admin)

Case No CO NO.6499/03

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 24 February 2005

Before

THE HONOURABLE MR JUSTICE WILSON

Between

THE QUEENClaimant

ON THE APPLICATION OF ZAKIR HUSANClaimant

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

Mr Al Mustakim (instructed by Oxford House Legal Department) for Claimant

Miss Jenni Richards (instructed by The Treasury Solicitor) for Defendant

Hearing Hearing dates: 9 and 10 November 2004

Judgment

SECTION A: INTRODUCTION

[1]The claimant is a citizen of Bangladesh who has claimed asylum in the United Kingdom under the Refugee Convention 1951 and has also claimed that his return to Bangladesh would infringe his rights under the Human Rights Convention 1950. When, by letter dated 26 November 2003, the defendant refused his claims, he also issued a certificate, the effect of which is to deprive the claimant of the facility to appeal to an adjudicator against the refusal of his claims while remaining within the United Kingdom. By this claim for judicial review, the claimant challenges the lawfulness of the certificate.

[2]The effect of section 92(4) of the Nationality, Immigration and Asylum Act 2002 (the Act) is that, if an appellant has made an asylum claim or a human rights claim while in the United Kingdom, the prohibition against appealing under section 82(1) from refusal of the claim while he remains in the United Kingdom, provided by section 92(1), does not apply. But the Act makes provisions for cases in which such an appellant is not entitled to rely on section 92(4), with the result that the prohibition against his appealing while he remains in the United Kingdom applies.

[3]The provisions for such cases are contained in section 94 of the Act and lie at the heart of this claim. Section 94 is entitled “Appeal from within United Kingdom: unfounded human rights or asylum claim” and provides as follows: “(1) This section applies to an appeal under section 82(1) where the appellant has made an asylum claim or a human rights claim (or both). (2) A person may not bring an appeal to which this section applies in reliance on section 92(4) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded. (3) If the Secretary of State is satisfied that an asylum claimant or human rights claimant is entitled to reside in a State listed in subsection (4), he shall certify the claim under subsection (2) unless satisfied that it is not clearly unfounded. (4) … (5) 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. (6) The Secretary of State may by order remove from the list in subsection (4) a State or part added under subsection (5).” (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.

[4]In reciting the relevant parts of section 94 of the Act, I have not imported the amendments to it which were introduced by section 27 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 and which came into force on 1 October 2004. The amendments, although not insignificant, do not affect the issues raised in this claim.

[5]In its original form section 94(4) of the Act listed ten states, namely the states which had by then been accepted for accession to the European Union. On 1 May 2004 they duly acceded to the Union and, in the light of the applicability thereafter of Union law to claimants entitled to reside in them, those states have been removed, by section 27(4) of the Act of 2004, from the list in section 94(4) (“the list”). Meanwhile, however, the defendant has used his power under section 94(5) by order to add other states to the list. He has made two orders to that effect. By the second, namely the Asylum (Designated States) (No.2) Order 2003, SI 2003 No.1919, he added seven states, including Bangladesh, to the list with effect from 23 July 2003. The order was made only after a draft had been laid before, and approved by resolution of, each House of Parliament pursuant to section 112(4) of the Act.

[6]The result has been that ostensibly section 94(3) applies to the claimant and thus that, once the defendant refused the claimant’s claims, he was required to certify them as clearly unfounded unless he was satisfied that they were not clearly unfounded.

[7]By this application, the claimant contends that the nature of his claims is such that the defendant could not reasonably have certified them as clearly unfounded whether under section 94(3) or indeed under section 94(2) of the Act. But the claimant raises an initial contention of general importance along with the contention specific to the facts of his case. The general contention is that the defendant’s addition of Bangladesh to the list is unlawful. The claimant contends is that, in relation to Bangladesh, the defendant could not reasonably have been satisfied of the matters of which, by section 94(5), he was required to be satisfied. Specifically, therefore, the contention is that the defendant could not reasonably have been satisfied either that there is in general in Bangladesh no serious risk of persecution of persons entitled to reside there or that removal to Bangladesh of such persons would not in general contravene the U.K.’s obligations under the Human Rights Convention.

[8]On behalf of the claimant Mr Mustakim relies upon material referable to conditions in Bangladesh, much of which was in existence as at the date of the order, namely 22 July 2003, and some of which came into existence after that date. His main argument is that the material in existence as at that date precluded the rational inclusion of Bangladesh in the list on that date. But, if necessary, Mr Mustakim would argue that the material coming into existence after that date should reasonably have driven the defendant to exercise his power under section 94(6) to remove Bangladesh from the list.

[9]The list of states included in section 94(4) of the Act is colloquially known as ‘the `white list’. Earlier asylum legislation had provided for a white list although inclusion in it had very different consequences. For my purposes the importance of the provision for a list in the earlier legislation is that there were legal challenges to the inclusion of two states, namely Pakistan and India, in that list. The legal authority for the compilation of that list derived from sub-paragraph 5(2) of schedule 2 to the Asylum and Immigration Appeals Act 1993, as substituted by section 1 of the Asylum and Immigration Act 1996. In that it preceded the enactment of the Human Rights Act 1998, the sub-paragraph refers only to persecution within the meaning of the Refugee Convention 1951 and has no provision corresponding to that in section 94(5)(b) of the Act. The sub-paragraph provided:

“(2) This sub-paragraph applies to a claim if the country or territory to which the appellant is to be sent is designated in an order made by the Secretary of State by statutory instrument as a country or territory in which it appears to him that there is in general no serious risk of persecution.”

Contingently upon the satisfaction of other pre-requisites, the inclusion of a state in the list provided for by the sub-paragraph had the effect of removing from an applicant who was to be sent there any right of appeal to the Immigration Appeal Tribunal against any subsequent decision by an adjudicator.

[10]In R on the application of Javed and Others v Secretary of State for the Home Department and Another

[2002] QB 129

the Court of Appeal dismissed an appeal by the Secretary of State against the decision of Turner J. that his inclusion, by order, of Pakistan in the list provided for by sub-paragraph 5(2) of schedule 2 to the Act of 1993 was unlawful. In the light in particular of the evidence about the treatment of women in Pakistan which had been surveyed by the House of Lords in R v Immigration Appeal Tribunal, ex parte Shah

[1999] 2 AC 629

and of evidence about the treatment of Ahmadis, a religious minority in Pakistan, the Court of Appeal upheld the decision of the judge that the Secretary of State could not rationally have concluded that there was in general no serious risk of persecution in Pakistan.

[11]Although it agreed with the judge’s conclusion, the Court of Appeal to some extent disagreed with the way in which he had reached it. In its judgment, delivered by Lord Phillips of Worth Matravers M.R, the Court of Appeal said:

“56. Although rational judgment or evaluation was called for from the Secretary of State, what had to be evaluated was the existence of a state of affairs. Whether that state of affairs pertained was a question of fact. If he concluded that Pakistan was a country in which there was in general no serious risk of persecution, the Secretary of State then had to consider a further question which was essentially one of policy: should he designate Pakistan? 57. Thus, on analysis, the challenge made by the applicants to the inclusion of Pakistan in the order was to its legality rather than to its rationality. However, the language defining the state of affairs that had to exist before a country could be designated was imprecise. Whether there was in general a serious risk of persecution was a question which might give rise to a genuine difference of opinion on the part of two rational observers of the same evidence. A judicial review of the Secretary of State’s conclusion needed to have regard to that considerable margin of appreciation. There was no question here of conducting a rigorous examination that required the Secretary of State to justify his conclusion. If the applicants were to succeed in showing that the designation of Pakistan was illegal, they had to demonstrate that the evidence clearly established that there was a serious risk of persecution in Pakistan and that this was a state of affairs that was a general feature in that country. For a risk to be serious it would have to affect a significant number of the populace.”

In a prior passage of its judgment the Court of Appeal had concluded that the court had jurisdiction to determine the validity of subordinate legislation even if it had been subject to the affirmative resolution procedure in Parliament.

[12]In R on the application of Balwinder Singh v SSHD and another

[2001] EWHC Admin 925

, unreported, Burton J. determined a claim that, like Pakistan, India had been the subject of unlawful inclusion in the list provided for by sub-paragraph 5(2) of schedule 2 to the Act of 1993. The claimant, an Indian citizen of Sikh origin from Punjab, claimed that there was such a significant risk of human rights abuse to certain minorities in both Kashmir and Punjab as to preclude a rational conclusion that in general in India there was no serious risk of persecution. In paragraph 20(iv) of his judgment Burton J. noted that the population of Kashmir and Punjab was 0.76% and 2% respectively of the population of India and that those areas represented 2% and 1.5% respectively of the area of India. Although he accepted that there were human rights abuses, particularly in Kashmir, and acknowledged that the fact that a problem was localised did not necessarily preclude a conclusion that it existed in general, he said in paragraph 23(ii):

“But on the facts before me I am not persuaded that the evidence established, clearly or otherwise, to a reasonable Secretary of State that there was a risk of persecution which was a “general feature” in India, and I am certainly satisfied that a decision to the contrary was well within his considerable margin of appreciation. Further, whereas of course even 0.76% of the population of India is a substantial number of people, nevertheless on the evidence the human rights abuses affected only a small percentage of that small percentage, such that it would be difficult to conclude that, in the context of India in general, a significant number of the populace was affected.”

SECTION B: THE CLAIMANT’S HISTORY

[13]The claimant was born in 1972 and seems to have lived all his life until September 2003 in Sylhet, a large city in the northeast of Bangladesh. In his letter of refusal and of certification dated 26 November 2003, the defendant proceeded upon the basis that what the claimant had stated about his life in Bangladesh was true. The claimant’s account was and is that:(a) prior to 2002 he associated with Chhatra Dal, the student wing of the Bangladesh Nationalist Party (BNP), being the dominant partner in the coalition which has ruled Bangladesh since 2001;

(b) in 2002 he changed allegiance by joining the student wing of the Awami League, being the party which held power in Bangladesh prior to 2001 and which is now the chief, and highly vigorous, opposition party;

(d) in about November 2002 two or three members of Chhatra Dal severely beat him up; he did not report it to the police because in his view the police would have taken no effective action and indeed his assailants would have learnt of the report and intensified their attacks upon him;

(e) shortly afterwards members of Chhatra Dal dragged him out of his house and would have beaten him had his neighbours not intervened;

(f) in about February 2003 armed members of Chhatra Dal opened fire on his home and narrowly missed shooting his mother; this incident he did report to the police, who declined to take a written statement from him and apparently did nothing to investigate it;

(g) on a later occasion members of Chhatra Dal slashed his leg with a piece of glass;

(h) in about July 2003 members of Chhatra Dal slashed him with a razor as he was walking through a bazaar and cut his wrist, for which he received medical attention including the insertion of sutures; and

(i) in fear of his life as a result of likely further assaults, he left Bangladesh in September 2003 and arrived in the U.K. in October 2003; and, in November 2003, when apprehended while working illegally in a restaurant in Swansea, he claimed asylum.

[14]In the letter written on behalf of the defendant to the claimant dated 26 November 2003, two main reasons were given for refusal of the claims. The first was that, apart from one visit to the police, the claimant had made no effort to secure protection from the authorities in Bangladesh against the violent acts of Chhatra Dal and had not established that the authorities were unable or unwilling to offer him effective protection. The second related to the alleged facility for the claimant to effect internal relocation. In this respect the context is that, although Bangladesh has roughly the same land area as England and Wales, its population now stands at about 141,000,000; and that on any view it is the most densely populated major country in the world. The defendant’s second reason was that the fact that the claimant was targeted by a student group in Sylhet did not raise a significant risk of analogous ill-treatment in other parts of Bangladesh.

SECTION C: THE LEGISLATIVE HISTORY

[15]In order to enable me better to understand the legislative history surrounding the inclusion of Bangladesh in the list in section 94(4) of the Act, both counsel have invited me to look at passages in the relevant parliamentary debates as well as at other material. But it is clear that nothing said in the debates can count as evidence for the purpose of the central task which lies ahead of me.

[16]Although the Act received the Royal Assent on 7 November 2002, much of it did not immediately come into force. Apart from subsection 94(5), which came into force on 10 February 2003 so as to enable the defendant by order to add states to the list in subsection (4), section 94 did not come into force until 1 April 2003. But, in introducing the Act, the government wanted the provisions for a non-suspensive appeal in relation to asylum claims, i.e. an appeal which did not suspend the appellant’s removal from the United Kingdom during its pendency, to apply immediately, even to claims made prior to the date, namely 1 April 2003, when the provisions for appeals in Part IV of the Immigration and Asylum Act 1999 would be replaced by those in Part 5 of the Act. So it included in the Act a transitional provision, namely section 115, which took effect immediately on 7 November 2002 and in which the provisions in section 94 for a non-suspensive appeal in the event of certification, and in that regard for a list, were substantially replicated.

[17]The regime set up by the Act for non-suspensive appeals, even first-tier appeals to adjudicators, and, within that regime, for a list of states to the citizens of which the regime was apparently intended more readily to apply, was controversial. In an article in The Times on 7 October 2002 Mr Blunkett, then the Secretary of State, explained the operation of the proposed list as follows:

“I’m not going to rule out all examination of these claims. To do so would breach the Refugee Convention and European Convention on Human Rights. But applicants will have to rebut the presumption that their country of origin is safe, and any appeal will have to be from abroad, rather than in the U.K. I will also seek a power to add countries to this list, with the safeguard that I will consult an independent advisory group which I am now establishing about the assessment of risk in the country.”

[18]The group to which the defendant was there referring was the Advisory Panel on Country Information which he would be required to appoint under section 142 of the Act and the function of which was to consider, and make recommendations to him in relation to, the content of reports about conditions in foreign countries which, by the Country Information and Policy Unit (CIPU) of the Immigration and Nationality Directorate, he compiles and publishes. On 5 November 2002 a minister in the defendant’s department confirmed to Parliament what he had in effect said in the article, namely that, before adding a state to the list, he would take into account the views of the panel in relation to it (Hansard, vol. 392, c.210).

[19]In February 2003 the defendant was quick to exercise his power under section 94(5) of the Act to add states to the list. He laid before Parliament a draft order for the addition to the list of seven states; and the order, namely the Asylum (Designated States) Order 2003, SI 2003 No. 970, was duly made and came into force on 1 April 2003. In debates in the First Standing Committee of the House of Commons on Delegated Legislation on 11 March 2003 and in the House of Lords on 31 March 2003, the ministers proposing the motion to approve the draft order explained that the enactment of the original list had had a dramatic effect in dissuading citizens of the listed states from coming to the U.K. to seek asylum. They explained that such dissuasion, coupled with the government’s fast-tracking of the claims of almost all of those who did come from such states by a system of detaining them at Oakington while their claims were despatched in the course only of a few days, had led to the fact that Oakington was by no means full; and that accordingly the defendant wanted to extend the system represented by the list. They said that, in the seven states proposed to be added to the list, persecution and human rights infringements were rare and that, while in no state could there be a guarantee of freedom from such abuses, the criteria set out in section 94(5) (or, more accurately, in its transitional predecessor, namely section 115(8)) were satisfied. They explained that, in identifying the states to be added to the list, the defendant had had regard not only to the CIPU reports but also to the very low ratio of grants of asylum to claims for asylum on the part of citizens of those states; and that the low ratio was the only common factor among the states sought to be added. Confronted with vigorous protests that the Advisory Panel was not yet in place and that the defendant was breaking his promise not to seek to add to the list before taking its views into account, the ministers explained that unfortunately it had proved impossible to establish the panel within the short time available.

[20]On 17 June 2003 the defendant laid the second draft order before Parliament. In it he proposed the addition to the list of seven further states, including Bangladesh. The debate in the House of Lords upon the draft order took place on 4 July 2003 (Hansard, vol. 650, c. 1199 – 1216) and the debate in the same committee of the House of Commons took place on 7 July 2003 (Delegated Legislation Committee Debates c. 3 – 24). In proposing to the House of Lords that the draft order be approved, the minister, Lord Filkin, explained that applications for asylum by citizens of states on the original list remained substantially reduced and that applications by citizens of the seven states added in April were already seen to be reducing. As in March, he explained that central to the draft order was the defendant’s conviction that the criteria in section 94(5) of the Act were satisfied in the case of each of the seven further states; and that the defendant had again chosen the states partly by reference to the particularly low ratio of grants to applications on the part of their citizens, namely, save in one case, less than 2%. He conceded that the Advisory Panel was still not in place and contended that, through no fault of the defendant, there had been snags in its establishment and that it would be in operation by September 2003. In response Lord Goodhart described the list as ‘even worse than the previous one’ and as ‘a disgrace’ (c. 1202, 1204). After quoting extensively from the report of the U.S. Department of State on Bangladesh dated 31 March 2003, he asked ‘by what conceivable standards can Bangladesh be considered suitable for inclusion in the white list?’ (c. 1203 – 1204). Lord Avebury referred to the persecution of Hindus in Bangladesh e.1207) and Earl Russell suggested that to argue that a state was safe because a very high proportion of applications by those from it were found to be unfounded was to argue in a circle. (c. 1209). In reply Lord Filkin stressed that, even where there was a general presumption that a state was safe, the legislation recognised that an individual might be the exception to the rule (c. 1215).

[21]In the debate in the House of Commons committee the minister, Ms Beverley Hughes, defended the proposed inclusion of Bangladesh in the list by reference to three features which have loomed large in Miss Richards’ argument on behalf of the defendant in this court, namely that Bangladesh has signed and ratified all six core U.N. human rights treaties, has a parliamentary system and has a constitution which provides for an independent judiciary (c. 5 – 6). In response Mr Simon Hughes said that he found it difficult to accept that the case for addition to the list could begin to be made in relation to Bangladesh; and he went on to refer to evidence of the persecution of religious minorities as well as to reports by Amnesty International and the Refugee Council. In reply Ms Hughes said that, although it was true that the government continued to raise issues of human rights in relation to individuals in Bangladesh, it did not follow that the vast majority of Bangladeshi nationals were at risk of having their human rights abused (c. 20). She commended the regime of the non-suspensive appeal in appropriate cases on the basis that it ‘gives people the message that it is not worth coming unless they believe that they have a genuine claim’ (c. 21). Following approval by resolution of each House of Parliament, the second order was made on 22 July and came into force on 23 July 2003.

[22]On 21 July 2003, namely the day before the second order was made, the Guardian newspaper commented upon it in a piece entitled ‘Britain ignores Bangladeshi persecution’. In the piece it was suggested that Bangladesh was sliding into a situation in which oppression of minorities was becoming systematic; and it quoted Amnesty International as having expressed grave concern to the government of Bangladesh about mounting human rights abuses and as saying that the addition of Bangladesh to the list ‘made no sense’.

[23]The first meeting of the Advisory Panel on Country Information took place on 2 September 2003. Following a discussion, including reference to the defendant’s promise to consult the panel before states were added to the list, it was made clear that, while the function of the panel was to review, and to make recommendations upon, the content of CIPU reports, on states, including those listed or proposed to be listed under s.94 (4), the panel would not be expected to comment on whether the addition, past or future, of a particular state to the list was appropriate.

SECTION D: EFFECT OF INCLUSION IN THE LIST

[24]What is the effect of inclusion of a state in the list upon a citizen of that state who is an asylum or human rights applicant in the U.K.?

[25]At first sight the answer may seem clear, namely that the criterion for the defendant’s certification under section 94(2) is subject to the terminological reverse, inimical to that citizen’s interests, provided by section 94(3) of the Act. In R (L and another), v SSHD)

[2003] 1 WLR 1230

, however, the Court of Appeal considered whether the terminological reverse in section 94(3) had any measurable legal effect. Following refusal by a judge, two applicants for permission to seek judicial review renewed their applications in the Court of Appeal. They were a mother and a son from the Czech Republic, which had been included in the initial list under section 94(4). Pursuant to the transitional provision contained in section 115 the defendant had, following his refusal of their claims for asylum, certified them as clearly unfounded. The applicants sought by judicial review to challenge the validity of the certificates. In refusing the renewed applications the Court of Appeal compared what was required for the issue of a certificate in relation to a citizen of an unlisted state pursuant to section 115(1)(a) (its successor being section 94(2)) with what was required for the issue of a certificate in relation to a citizen of a listed state pursuant to section 115(6) (its successor being section 94(3)).

[26]In its judgment, delivered by Lord Phillips of Worth Matravers M.R, the Court of Appeal said:

“56. Section 115(1) empowers – but does not require – the Home Secretary to certify any claim “which is clearly unfounded”

. The test is an objective one: it depends not on the Home Secretary’s view but upon a criterion which a court can readily re-apply once it has the materials which the Home Secretary had. A claim is either clearly unfounded or it is not. 57. How, if at all, does the test in section 115(6) differ in practice from this? It requires the Home Secretary to certify all claims from the listed states “unless satisfied that the claim is not clearly unfounded”. It is useful to start with the ordinary process, such as section 115(1) calls for. Here the decision-maker will (i) consider the factual substance and detail of the claim, (ii) consider how it stands with the known background data, (iii) consider whether in the round it is capable of belief, (iv) if not, consider whether some part of it is capable of belief, (v) consider whether, if eventually believed in whole or in part, it is capable of coming within the Convention. If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not. 58. Assuming that decision-makers – who are ordinarily at the level of executive officers – are sensible individuals but not trained logicians, there is no intelligible way of applying section 115(6) except by a similar process of enquiry and reasoning to that described above. In order to decide whether they are satisfied that the claim is not clearly unfounded, they will need to consider the same questions. If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded. If that point is reached, the decision-maker cannot conclude otherwise. He or she will by definition be satisfied that the claim is not clearly unfounded….” In other words the terminological reverse provided in section 94(3) has been construed by the Court of Appeal as so jesuitical as not to have measurable legal effect.

[27]What, then, is the legal effect, if any, of the listing of a state in section 94(4)? In L the Court of Appeal proceeded to seek to answer that question as follows:

“59. There are two linked explanations for the difference of language. One is that, as the applicants’ counsel submits, there is a simple legal distinction between the case of specified countries deemed to be free in general from persecution of minorities by the state or with its acquiescence, to which return is mandatory once a claim is found to be unsustainable; and other countries, to which the Home Secretary may not think it right to require return as a precondition of appeal even though their case has been found on first consideration to be without substance. In the latter class, section 115(1) does not require him to certify; in the former class, section 115(6) compels him to do so. This distinction does not, in itself, afford a complete explanation for the profusion of negatives. But their use corresponds with and emphasises the reason for the dual statutory scheme: that in the specified states, as section 115(8) shows, the background facts can be expected to weigh against a valid asylum claim.”

The successor to section 115(8) is section 94(5). I believe that the Court of Appeal intended the final sentence of paragraph 59 to be taken as the second of the two explanations to which it had referred at the outset.

[28]The first explanation suggested by the Court of Appeal is, as it seemed to imply, of very little practical significance. It seems highly unlikely that, in relation to an applicant entitled to reside in an unlisted state, the defendant, although considering that his claim was clearly unfounded, might choose not to certify it as such. In truth the effects of listing seem to be more operational than legal. As the minister told the House of Commons committee on 7 July 2003, the listing of a state sends those entitled to reside there a message. If they come to know not only that their state is listed but that it is the U.K.’s practice to fast-track applications by the citizens of listed states over a few days while they remain in detention, they will have a strong disincentive to make asylum or human rights claims in the U.K., although the defendant would add, no doubt controversially, that the disincentive is only to those considering whether to make false such claims. On 4 July 2003 in the House of Lords Lord Filkin referred to a ‘general presumption’ that a listed state was safe; and, although Miss Richards does not associate herself with the suggestion that any ‘presumption’ is raised by the inclusion of a state in the list, there is no doubt that such is the perceived effect of listing and indeed that such is a perception which the defendant has been keen to foster. The statistics given to Parliament which chart a dramatic fall in applications by citizens of states once they become listed indicate where the real effect of listing is to be found.

[29]I should add that, at the conclusion of the oral argument, I invited Miss Richards to forward to me a copy of any written guidance given to the defendant’s caseworkers in relation to the effect of listing under section 94(4). She has forwarded an ‘Asylum Policy Instruction’ (API) relating thereto, which is publicly available on the defendant’s website. Although the instruction contrasts the process of certification in relation to the citizen of a listed state with what it calls a ‘case-by-case’ process of certification in relation to the citizen of an unlisted state, it stresses the need to look at the facts of the case before issuing a certificate in relation to a citizen even of a listed state.

SECTION E: THE DEFENDANT’S REPORTS ON BANGLADESH

[30]CIPU publishes a “Report” on Bangladesh, derived from information obtained from a wide variety of sources which it regards as reliable, for the use in particular of those who on the defendant’s behalf determine asylum and human rights claims by citizens of Bangladesh. It has been the practice of CIPU in recent years to revise its report on Bangladesh every six months.

[31]Section 6 of CIPU’s “Assessment” (as it was then called) dated April 2003, i.e. its presentation current when the defendant added Bangladesh to the list in section 94(4) of the Act, is headed ‘Human Rights’ and proceeds for 106 paragraphs. Paragraphs 1 to 3 are sub-headed ‘Overview’. Paragraph 1 reads as follows:

“The Government’s human rights record remained poor and it continued to commit numerous serious human rights abuses. Police brutality, torture, extrajudicial killings, violation of human rights of women and children, arbitrary arrests and detention, and violence and discrimination against the ethnic and religious minorities persisted in 2002. Deaths in custody more than doubled from 2001. Attacks on journalists and efforts to intimidate them by government officials and political party activists increased and both political parties, Awami League and the BNP, employed political violence, causing deaths and numerous injuries. One Bangladeshi human rights activist has commented that the continued trend of torture, rape and death in custody of law enforcers is alarming and that a culture of impunity and political and administrative corruption put at risk the human rights of the citizens. The Government rarely punished persons responsible for torture or unlawful deaths. Prison conditions were extremely poor.”

[32]In the Report dated October 2003 the Overview in section 6 was presented differently. Paragraph 1 became a long recital of the U.N. human rights treaties to which Bangladesh is a party. The second, third and fourth sentences of paragraph 1 of the April 2003 version, which contained the nub of the Overview, were repeated as paragraph 2; but the prefatory sentence, namely that the government’s human rights record remained poor and that it continued to commit numerous serious human rights abuses, was omitted although it was patently justified by the material in the 105 paragraphs which followed. Is it too cynical to wonder whether the preface was thought to sit too uncomfortably with the recent addition of Bangladesh to the list?

[33]In the Report dated April 2004 the Overview in section 6 was substantially recast. After repetition in paragraph 1 of the U.N. treaties to which Bangladesh is a party, paragraph 2 became a quotation from the “Country Reports on Human Rights Practices 2003: Bangladesh”, published by the U.S. Department of State. The quotation was as follows:

“The Government’s human rights record remained poor, and it continued to commit numerous serious abuses. Security forces committed a number of extrajudicial killings. The police; [a] paramilitary organization…; [an] auxiliary organization…; and the army used unwarranted lethal force. The police often employed excessive, sometimes lethal, force in dealing with opposition demonstrators, and the police routinely employed physical and psychological torture during arrests and interrogations. Prison conditions were extremely poor and were a contributing factor in some deaths in custody. Police corruption remained a problem. Nearly all abuses went unpunished, and the climate of impunity remained a serious obstacle to ending abuse and killings. In February [2003] Parliament adopted legislation shielding security forces from any legal consequences of their action, which included numerous abuses during the countrywide anti-crime drive from October 16, 2002, to January 9 [2003]. In the few instances where charges were levied, punishment of those found guilty was predominantly administrative. Violence, often resulting in deaths, was a pervasive element in the country’s politics. Supporters of different political parties, and often supporters of different factions within one party, frequently clashed with each other and with police during rallies and demonstrations. Press reports of vigilante killings by mobs were common.”

In paragraph 4 there was a further quotation from the report of the State Department to the effect that a wide variety of domestic and international human rights groups generally operated independently and without government restriction in Bangladesh and that, while they were often sharply critical of the government, they also practised self-censorship, particularly in relation to politically sensitive cases. In paragraph 3 there was a quotation of statistics provided by a human rights group: namely that in Bangladesh during 2003, 436 people had been killed and 6,281 had been injured in political violence and incidents of human rights violations; that 90 people had died in jails; that 81 others had been killed at the hands of law-enforcing agencies; that 477 children had been killed, 339 injured, 494 raped and 308 abducted; that 1,336 children and women had been raped; and that 337 people had fallen victim to acid-throwing. In paragraph 5 was a reference to the fact that, although the government had promised to establish an independent National Human Rights Commission, it had not yet done so; and a quotation from a report by Amnesty International to the effect that the failure of successive governments effectively to address human rights violations pointed to the desperate need for its establishment.

[34]Section 6 of the CIPU report dated October 2004 presented the Overview in much the same terms.

[35]Other relevant statements in the CIPU assessment dated April 2003 were as follows:(a) that the country was plagued with corruption (para 3.2);

(b) that the entire election campaign in 2001 had been characterised by violence in which at least 140 people had been killed (para 4.38);

(c) that the 1972 Constitution was based on fundamental principles of nationalism, socialism, democracy and secularism and that it aimed to establish a society free from exploitation in which the rule of law, fundamental human rights and freedoms, justice and equality were to be secured by all citizens (para

5.1 );

(d) that under the constitution all citizens were equal and had a right to its protection, that it outlawed arbitrary arrest, detention and discrimination based on race, age, sex, birth, caste or religion and that it afforded freedom of assembly, association, and religious worship to every citizen (para

5.2 );

(e) that Bangladesh was a parliamentary democracy and that there was an active political opposition although violence was a pervasive feature of politics (para 5.7);

(f) that, while the lower courts remained part of the executive and were subject to its influence, the higher judiciary displayed a significant degree of independence and often ruled against the government (para 5.13);

(g) that there was such a backlog of cases awaiting trial that most prison inmates had never been convicted and were awaiting trial (para 5.33);

(h) that the above backlog, together with the corruption encountered in the judicial process, effectively prevented many from obtaining a fair trial and that bribes were paid to court officials more often than not (para. 5.18);

(i) that, although it required an arrested person to be produced before a magistrate within 24 hours, section 54 of the Code of Criminal Procedure effectively allowed the police to arrest anyone at any time for almost any reason and was one of the most easily abused provisions in the Bangladesh legal system (para 5.25);

(j) that under the Special Powers Act the government had sweeping powers to detain any person for up to 30 days without charge to prevent him from performing a ‘prejudicial act’ and that, according to a UN report, this was the most favoured legal instrument of the government for the detention of political opponents as well as of criminals (para 5.27);

(k) that the police were often reluctant to pursue investigations against persons affiliated with the ruling party, that the government frequently used the police for political purposes, that in 2002 there was widespread police corruption and lack of discipline, that security forces committed numerous serious human rights abuses and were rarely disciplined, even for the most egregious actions, and that security forces committed a number of extrajudicial killings (para 6.4);

(l) that, according to a State Department report and notwithstanding its prohibition in the constitution, police routinely used torture, beatings and other forms of abuse while interrogating suspects and that, according to Amnesty International, little effort had been made to suppress the widespread use of torture under successive governments (para 6.6);

(m) that, at the instigation of politicians, police reportedly tortured political opponents, that the government rarely prosecuted those responsible for torture and that a climate of impunity allowed such police abuses to continue (para 6.7);

(n) that, according to human rights observers, the police were frequently used for political purposes and that in 2002, according to Amnesty International, several hundred activists of the Awami League had been arrested without warrant, detained and tortured ahead of a general strike which the league was organising (para. 6.10);

(o) that, in an index of countries ranked according to their respect for press freedom, Bangladesh had been ranked 118th out of 139 (para 6.20);

(p) that, although it established Islam as the state religion (and indeed 88% of the population were Muslim), the constitution guaranteed freedom of religious worship (para 6.30);

(q) that, however, Hindus, who represented 10% of the population, had since 2001 been increasingly targeted for attacks and perceived that discrimimation from the Muslim majority had increased (paras. 6.42 and 6.45);

(r) that Ahmadis, of whom there were fewer than 100,000 in Bangladesh, were regarded as heretics by mainstream Muslims for their belief that Mohammad was not the messiah and that they had in the past been targets of sectarian attacks and harassment, including two attacks on their mosques from one of which they remained excluded (paras 6.47 and 6.48);

(s) that, notwithstanding the constitutional prohibition of any form of discrimination on the basis of sex and at least five enactments designed to protect their rights, women remained mostly in a subordinate position in society and that their basic freedoms had not been effectively protected (paras 6.74 and 6.75);

(t) that, while violence against women was difficult to quantify, recent reports indicated that domestic violence was widespread and that, according to a UN report in 2000, 47% of adult women in Bangladesh reported physical abuse by their male partners (para 6.76);

(u) that in 2002 1,350 women and girls had allegedly been raped, that many rapes went unreported and that, while some rapists received sentences of life imprisonment, others, sentenced by village arbitration councils, received only a fine (para 6.79);

(v) that in 2002 there were 483 victims of acid attacks, of whom more than half were women, and that, while the government seemed determined to address the problem with new laws and special courts, including new laws to criminalize the sale of acid, few perpetrators of acid attacks were prosecuted (para 6.81);

(w) that, although the government had made significant progress in improving the health, nutrition and education of children, more than half of all children remained chronically malnourished and child labour, child prostitution and trafficking persisted (para 6.85);

(x) that the compulsion upon many children to work at a young age frequently resulted in their suffering abuse, common at all levels of society throughout the country, mainly at the hands of employers who made them work in conditions which resembled servitude (para 6.86); and

(y) that violence was endemic between the student political wings of the major national parties (para 6.103).

[36]The bulk of this material is repeated in all three subsequent reports.

[37]A comparison between the CIPU assessment dated April 2003 and its report dated April 2004 reveals the inclusion of the following fresh material in the later report:(a) There was an updated survey of the use in Bangladesh of the Special Powers Act. It referred to an Amnesty International Report dated May 2003 and entitled “Urgent Need for Legal and Other Reforms to Protect Human Rights”, which alleged that each year thousands of people were arbitrarily detained, particularly under the Act, and denied access to judicial remedies (para 5.26).

(b) The paragraphs on torture were updated to replace reference to the State Department’s Report of 2002 with that of 2003. But the references to the more recent report indicated no improvement in enforcing the constitution’s prohibition against torture and cited the Bangladesh Rehabilitation Center for Trauma as saying that in 2003 there had been 1,296 victims of torture, including 115 deaths due to torture, by security forces. The CIPU report went on to include a further quotation from the Amnesty International Report, referred to at (a) above, to the effect that methods of torture included beating with rifle butts, iron rods, bamboo sticks or bottles filled with hot water so that they did not leave marks on the body, hanging by the hands, rape, ‘water treatment’ in which hose pipes were fixed into each nostril and taps were turned on full for two minutes at a time, the use of pliers to crush fingers and electric shocks (paras 6.6 and 6.7).

(c) A State Department report on Religious Freedom was quoted as saying that, while the generally amicable relationship among religions in society contributed to the religious freedom guaranteed by the constitution, the number of Hindu, Christian and Buddhist minorities who experienced discrimination by the Muslim majority had increased in 2003 (para 6.26).

(d) In January 2004 Agence France Presse had reported that the government had banned publications of the Ahmadis after pressure from Islamic hardliners (para 6.39).

(e) The section on women was updated to quote from the Department of State Report for 2003 to the effect that the government did not act effectively to protect their basic rights. Dowry-related killings of women were said to have increased to 261 in 2003 (from 190 in 2002) and that incidents of vigilantism against women, sometimes driven by fatwas directed by religious leaders, occurred, particularly in rural areas, and included the whipping of women accused of moral offences. The number of acid attacks, which were mostly on women and by way of revenge on the part of rejected suitors, had apparently reduced to 337 in 2003 but few perpetrators were yet prosecuted. Victims were left horribly disfigured and often blind. (paras 6.69 and 6.74).

(f) While in 2003 significant progress had been made in improving the health and education of children, slightly more than one half of all children remained chronically malnourished; in 2003, according to human rights groups, 575 children had been abducted, nearly 1300 had suffered unnatural deaths, 3,100 had fallen victim to serious abuses such as rape, torture and acid attacks and 10,000 were working as prostitutes; and, according to a report in 2002 by a Bangladesh government news agency, 400,000 children were homeless (which I take to mean on the streets) (paras 6.75, 6.76 and 6.80).

[38]Revisions made in the CIPU report dated October 2004 included the following:(a) The Awami League had organised a campaign of public demonstrations to take place in April 2004 and in that month, in an attempt to contain them, the police had arrested more than 15,000 people, mainly supporters of the league and of a non-governmental organisation, but that the government had called on the police to stop the mass arrests and not to harass the innocent (para 4.42).

(b) In August 2004 a grenade attack had been launched upon an Awami League rally, as a result of which nineteen people had been killed and 200 injured, including party leaders, and there had been a rising trend of bomb attacks in Bangladesh over the past five years in which more than 140 people had died but in relation to which the police had made arrests in only one case (para. 4.48).

(c) In the section on torture there was inclusion of a reference to the report by Amnesty International for 2003 to the effect that torture remained widespread, that the government failed to implement safeguards against it and that victims included suspected criminals, children and people detained on politically motivated grounds (para 6.6).

(d) The introductory section on Freedom of Religion was expanded, in particular to quote from articles in the (London) Guardian dated 21 July 2003 and in Time Magazine (Asia) dated 12 April 2004. The piece in the Guardian, different from the piece referred to in §22 above though published on the same day, was to the effect that the oppression of religious minorities was becoming systematic; that, although there had been a long tradition of tolerance towards them, Bangladesh was being pushed towards fundamentalism; that, in the words of a lawyer, ‘we are returning to the dark ages’; that leading Islamic scholars were appalled by the rise of fundamentalism; that, in the words of one of them, ‘what we are seeing is the Talibanisation of Bangladesh’ and ‘if we allow them to continue, [minorities] will be eliminated [and] Bangladesh will become a fascist country.’ The piece in Time Magazine, as quoted, referred to the extent of corruption and criminal violence in Bangladesh and observed that the violence was made more toxic by the spread of intolerant Islamic fundamentalism and that, according to Hindus, they were increasingly being intimidated by gangs of Islamic fundamentalists who attacked them in their homes, extorted ransoms from them and warned them to move to India (paras 6.29, 6.30).

(e) The section on the Ahmadis was expanded to include reference to a report by Amnesty International dated April 2004 to the effect that they had been living in fear of attack, looting and killing since around October 2003, that, in addition to the prohibition of their publications, Islamic groups were now pressing for confiscation of their mosques, that the government had acted to prevent crowds from entering their mosques but that it had taken no action against the perpretrators of the hate campaign (para 6.41)

(f) The section on the tribal people of the Chittagong Hill Tracts was greatly enlarged. The tribal people have been involved in a long running and violent dispute over land ownership with Bengali settlers but the dispute was supposed to have been resolved by an accord signed in 1997. The enlarged section quoted a report by Amnesty International dated March 2004 as concluding that, more than six years after the signing of the accord, tribal people continued to live in fear of attacks from Bengali settlers, often carried out with the apparent connivance of army personnel. It went on to quote a report in the Bangladesh Daily Star dated 4 September 2003 to the effect that more than 1,500 tribal people had been displaced by recent ethnic violence. Then it quoted the State Department report for 2003 as saying that extortion from tribal people and kidnapping them for ransom had been rampant in 2003 (paras 6.72, 6.74 and 6.75).

(g) The section on women was expanded to refer to a report dated 3 January 2003 submitted by the state of Bangladesh itself to the U.N. CEDAW (Convention on the Elimination of Discrimination Against Women) Committee. In the report Bangladesh had stated that, according to the constitution, women enjoyed the same status and rights as men in terms of education, health, political process, employment, development processes and social welfare; that in practice they did not enjoy fundamental rights and freedom to the same extent; and that the state was taking a variety of initiatives designed to reduce discrimination and gender-based oppression (para 6.81).

SECTION F: OTHER OBJECTIVE MATERIAL

[39]In relation to circumstances in Bangladesh relevant to asylum and human rights claims the CIPU reports which I have surveyed in Section E above are, I believe, an excellent summary of the reliable material available at the time of their compilation; and, although a mass of sources are cited in the annexes to their reports, it is no surprise that they seem to rely in particular on the reports of the State Department. Nevertheless I have been referred to other material, not referred to in the CIPU reports, which, insofar as it existed prior to July 2003, would have been accessible to the defendant before he added Bangladesh to the list under section 94(4) of the Act and which, insofar as it has come into existence thereafter, would have been accessible to him for the purpose of considering whether it should be removed from the list.

[40]Thus, in relation to women, the International Commission of Jurists explained in a short report dated 3 October 2003 that it had recently undertaken a mission to Bangladesh. It stated that in 1997 the CEDAW Committee had expressed serious concern about the inability of the government of Bangladesh to enforce laws effectively for the protection of women from violence and it continued as follows:

“Today, more than five years later, the situation remains grim, as the violence against women continues unabated and remains a serious human rights concern. Women still frequently face violent attacks, many die as a result of domestic violence and acid attacks on women continue, sparking widespread national and international outrage. NGOs and women’s rights defenders complain of a lack of adequate protection and effective legal remedies for the victims of violence. The failure of the Bangladeshi authorities to take prompt legal action against those accused of perpetrating violence fosters a climate of impunity.”

[41]By report dated 12 January 2004, the Immigration and Refugee Board (IRB) of Canada also addressed violence against women in Bangladesh. It saw fit to quote rival assertions that Bangladesh was either second worst or fourth worst among the nations of the world in terms of violence against women. It quoted statistics for violence against women in the first ten months of 2003, which were said by a prominent women’s organisation in Bangladesh to represent the highest incidence of violence against women there in recent times. The Canadian report acknowledged the numerous laws and other initiatives passed and taken by the government of Bangladesh to protect women but noted that even the government itself, in its report to CEDAW, had acknowledged that there was a need for improved law enforcement and implementation. Indeed it quoted an MP in Bangladesh as having recently stated:

“We have so many laws, but not the rule of law”

. It said that, according to the National Women Lawyers’ Association of Bangladesh, only 10% of acid attackers were ever prosecuted; and that, according to another source, perpetrators bribed police to secure lesser charges.

[42]In relation to the treatment of religious minorities, the IRB of Canada produced a report dated 5 August 2003, the first paragraphs of which were quoted in paragraph 6.45 of the CIPU report dated October 2004. In later paragraphs the Canadian report quoted a New York based organisation for religious minorities in Bangladesh as claiming that Islamic fundamentalists were there conducting ‘ethnic cleansing’ of religious minorities and that every day such people were being raped, murdered and tortured. It cited a report that the police were slow to assist members of religious minorities who had been victims of crimes.

[43]In the State Department’s report on Religious Freedom in Bangladesh dated 15 September 2004, thus no doubt too late for reference in the CIPU report dated October 2004, human rights activists were quoted as noting an increase in religiously motivated violence. The report suggested that acute animosity between the two mainstream political parties often led not only to politically motivated violence but sometimes to heightened tensions between Muslims and Hindus. It recognised that the government had taken steps to promote interfaith understanding, including promotion of the peaceful celebration of a major Hindu holiday, but cited a report that in the first four months of 2004 there had been about 200 incidents of discrimination or violence against religious minorities, including – allegedly - killings, rape, torture, attacks on places of worship, destruction of homes and desecration of items of worship.

[44]Freedom House issued reports on freedom in Bangladesh for 2003 dated 9 July 2003 and for 2004 dated 23 September 2004. Both parties have referred to them and seem to accept that Freedom House is reputable. In the latter report, by way of overview, it said as follows:

“Bangladesh continued in 2003 to be plagued by lawlessness, rampant corruption and violent political polarization, all of which threaten its prospects for consolidating democratic institutions and achieving economic development and reform… Official intolerance toward criticism and scrutiny persisted, with journalists, human rights advocates and leaders and perceived supporters of the political opposition being detained or otherwise harassed throughout the year… Faced with mounting domestic and international frustration with the continued deterioration in law and order, in October 2002, the government deployed nearly 40,000 army personnel in ‘Operation Clean Heart’ as part of an anticrime drive during which thousands were arrested. A further attempt to crack down on crime and lawlessness was made in June 2003, when authorities announced that they intended to deploy paramilitary forces and that police had been given orders to ‘shoot on sight’. Although the policy was initially popular among Bangladeshis weary of rising crime rates and a general climate of impunity for criminals, police and army excesses, including extortion and torture, led to repeated statements of concern from both domestic and international groups during the year.”

[45]On 30 September 2004 the U.K. Foreign and Commonwealth Office published an up-dated “Country Profile” of Bangladesh. Under the sub-heading ‘Recent Political Developments’, the Foreign Office reported:- “Bangladesh has been ranked worst on Transparency International’s Corruption Perceptions Index for the past three years. A bill to set up an Independent Anti Corruption Commission was passed in February 2004 after concerted donor lobbying. There has been almost no progress made on other key reform issues, including the separation of the Judiciary and Executive in lower level courts, and the formation of an independent Human Rights Commission.” Under the heading ‘HUMAN RIGHTS’ the Foreign Office stated:

“Bangladesh has a mixed human rights record. Bangladesh signed the UN Covenant on Civil and Political Rights in September 2000 [and] the other five core human rights instruments… In a report released at the Bangladesh Development Forum on 15 May 2003, Amnesty International (AI) highlighted that successive governments in Bangladesh have failed to curb serious human rights violations arising from the use of legislation and widespread practices in the law-enforcement and justice system which violate international human rights standards. These violations include torture; deaths in custody; arbitrary detention of government opponents and others; excessive use of force leading at times to extrajudicial executions; the death penalty; sporadic attacks against members of minority groups; and acts of violence against women. In this report they highlight their concerns about two specific laws that facilitate endemic human rights violations in Bangladesh: the Special Powers Act…which allows arbitrary detention for long periods of time without charge; and Section 54 of the Code of Criminal Procedure…which facilitates torture in police or army custody. The police are frequently accused of a wide range of human rights violations, of failing to prevent human rights abuses, of breaking a number of laws and of taking bribes. Deaths in police custody are high. There are several hundred thousand people awaiting trial. There are regular allegations that torture is used as a means of questioning. In 2000 AI highlighted the police as major perpretrators of torture, including of children.”

[46]In the weeks prior to the hearing of this claim, which took place on 9 and 10 November 2004, treatment of opposition parties and religious minorities in Bangladesh further deteriorated. By way of protest at the attack on its rally in August 2004, the Awami League planned a rally in Dhaka on 3 October. According to a report by People’s Daily Online dated 29 September 2004, 2200 members of the league, both leaders and workers, had been arrested during the previous four days, apparently in order to suppress the rally; but the police had explained the mass arrests as being part of their regular anti-crime crackdown. It seems, as Miss Richards points out, that the High Court had directed the government to report to it about the arrests. On 12 October 2004 the treatment of the Awami League during the previous two months was raised in the House of Commons at question-time. The minister agreed that the UK government had been shocked by the attack on the rally in August; assured the questioner that it regularly raised concerns about the situation in Bangladesh, including the recent political violence, with the Bangladeshi authorities; and expressed its concern at the deterioration of law and order there.

[47]On 5 November 2004 Amnesty International issued a press release about the position of Ahmadis in Bangladesh. It stated:- “Amnesty International is deeply concerned for the safety of the Ahmadiyya Community in Bangladesh following threats by Islamist groups to attack Ahmadi places of worship during today’s Friday prayers. “The Government of Bangladesh must take decisive action against anti-Ahmadi agitators who have continued to attack members of the Ahmadiyya community. These groups have been allowed to attack Ahmadis with impunity”, Amnesty International said. Last Friday the groups attacked an Ahmadi place of worship …. as a result of which at least eleven Ahmadis received serious injuries. Islamist groups have now threatened to carry out the attacks more frequently and without prior notice. They have named Ahmadi places of worship as the targets of their attacks every Friday during noon prayer time.”

SECTION G: DISCUSSION AND CONCLUSION

[48]The submissions of Mr Mustakim are obvious. They are to the effect that the mountain of material which I have sought to summarise in Sections E and F above precluded any rational conclusion by the defendant in July 2003 that there was in general in Bangladesh no serious risk of persecution of persons entitled to reside there or that removal to Bangladesh of such persons would not in general contravene the UK’s obligations under the Human Rights Convention; and indeed that the material arising since then precludes any later such conclusion. Mr Mustakim therefore submits that the defendant had no power under section 94(5) of the Act to add Bangladesh to the list and indeed that the only course rationally open to him since then has been to exercise the power under section 94(6) to remove it from the list. Mr Mustakim submits that in particular the following groups are at risk of persecution and human rights abuses, namely women, children, religious minorities such as Hindus and Ahmadis, political opponents of the government, and in particular members of the Awami League, and the tribal people of the Chittagong Hill Tracts. I should say that he also seeks to press the risks of such abuses to homosexuals in Bangladesh but I do not regard the evidence in relation to them as being sufficiently substantial to warrant reference.

[49]Inevitably detailed submissions are made on both sides in relation to the significance of the decision of the Court of Appeal in Javed.

[50]An initial point in relation to that authority relates to the fact that the Court of Appeal criticised the trial judge for not having afforded to the defendant a margin of appreciation in relation to his decision to list Pakistan pursuant to sub-paragraph 5(2) of schedule 2 to the Act of 1993 and indeed for having resolved to subject the decision to ‘rigorous examination’. In paragraph 54 of its judgment, the Court of Appeal said:

“ [Counsel for the Secretary of State] submitted that there was no justification in the present case for subjecting the Secretary of State’s decision to particularly rigorous scrutiny … With this submission we agree. Human rights were not put in issue by the accelerated procedure that was adopted in relation to applicants from countries on the White List. Nor, as we shall explain, do we consider the ‘discretionary area of judgment’ to be a particularly narrow one.”

As noted in §9 above, sub-paragraph 5(2) provided for a list of states in which there was in general no serious risk of persecution; and there was no reference in the sub-paragraph to the risk of infringement of human rights. It is otherwise in relation to additions to the list made under section 94(5) of the Act. But Miss Richards submits, with only faint opposition from Mr Mustakim, that it does not follow that I am required to analyse with rigorous scrutiny the defendant’s decision to list Bangladesh thereunder. I agree with her. Such is an exercise required of a court in analysing a decision-maker’s determination in relation to an individual case which is alleged to engage rights under either of the Conventions; and it is not apt to a decision in relation to which, as the Court of Appeal made clear in paragraph 57 of its judgment in Javed (set out in §11 above), a considerable margin of appreciation must be afforded.

[51]Miss Richards submits that there is a fundamental distinction between the treatment of women in Pakistan, as explained in Shah and as adopted by the Court of Appeal in Javed, and any mistreatment, whether of women or other groups, in Bangladesh. The difference, so she submits, is that in Pakistan the mistreatment of women was not simply the result of lack of protection on the part of the state: it was partly tolerated and partly even sanctioned by the state. In Shah, at page 635D to 636E, Lord Steyn noted that, notwithstanding a constitutional guarantee against discrimination on the ground of sex, statutes in Pakistan discriminated against some women, including women who made accusations of rape. He quoted a report by Amnesty International to the effect that several Pakistani laws explicitly discriminated against women; that in some cases the evidence of men but not of women could be received in court; that women, but not men, were subject to the Zina Ordinance, under which about half the women prisoners in Pakistan were held, often for years and without any evidence that they had committed an offence; and that punishments for women in relation to sexual conduct, including stoning to death, were unmatched by punishments for men in that regard.

[52]Miss Richards contrasts the state-sanctioned discrimination against women in Pakistan with what, on paper, is on any view the impressive constitutional commitment of the state of Bangladesh to equal rights for all its citizens and, in relation to women and children, its subscription to all relevant UN conventions. She relies on the fact that in Bangladesh there is a bespoke Ministry for Women and Children; that in 2000 the Prevention of Women and Children Repression Act was passed; that there are women in Parliament and indeed that the Prime Minister of Bangladesh is a woman. More generally she points to the fact that Bangladesh is a parliamentary democracy; that its higher judiciary pursues a healthy independence of government; and that the Human Rights Commission has, albeit belatedly, now been established.

[53]In the last analysis, however, it is the treatment of the citizens of Bangladesh on the ground which section 94(5) of the Act requires the defendant to have addressed. In the light, in particular, of what CIPU calls its use of the police for political purposes and specifically of the evidence of arrest, violence and torture on the part of the police towards its political opponents, it would be impossible to conclude that the government’s own commitment to protect, for example, freedom of speech and of association is as unqualified as the provisions of the constitution require. But, even to the extent that the persecution and human rights abuses documented in the objective material could be said to be perpetrated by non-state agents in Bangladesh, the two Conventions are as much engaged when the state fails to provide a sufficiency of effective protection against them as when it tolerates or sanctions them: see Horvath v SSHD

[2001] 1 AC 489

. As Lord Clyde said in that case at 510H:

“There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the [Refugee] Convention requires to have protected. More importantly there must be an ability and a readiness to operate that machinery.”

[54]Miss Richards proceeds to argue that, if properly analysed, the extent of persecution and of human rights abuses in Bangladesh within the meaning of the Conventions, as evidenced in the objective material, is not sufficiently generalised to preclude the requisite conclusions in section 94(5) (a) and (b) of the Act. She relies strongly on the guidance given by the Court of Appeal in Javed, set out in §11 above, upon the construction of words identical to those in section 94(5)(a), namely that the risk is serious only if it affects a significant number of the populace and that the serious risk has to be a general feature of the state; and she bids me to pay the closest attention to the reasons why, as explained by Burton J. in Balwinder Singh, the evidence of abuses suffered by minorities in Kashmir and Punjab failed to give rise to risks in India of the requisite generality. With characteristic aplomb Miss Richards picks her way through some of the objective material. She points out for example that the statistics, however regrettable, as to the number of those killed and injured in the context of political violence, of women raped or disfigured by acid and of children abducted or homeless are, in the context of a population of 145,000,000, minuscule; and she reminds me that, for example, the Ahmadis (100,000) and the tribal people of the Chittagong Hill Tracts (600,000) together represent much less than 1% of the population.

[55]But there is an answer to Miss Richards’ point and it has, I believe, different strands:(a) The mistreatment of the citizens of Bangladesh is not localised, as was found in Balwinder Singh to be the case in India.

(b) In deciding to add Bangladesh to the list the defendant had to guard against any equation of the number of actual victims of persecution and of human rights abuses, as reported, with the number at risk thereof. There is a nexus between the numbers, hard to compute, but there is certainly not an equation.

(c) Section 94(5) required the defendant to reach a conclusion about circumstances “in general” in Bangladesh and, although some of the relevant material relates to persecution of small minorities, in the end he had to survey the picture cumulatively, globally and indeed generally.

(d) Persecution within the meaning of the Refugee Convention will, by its nature, often be directed towards minorities. At all events women (49.5%) and Hindus (10%) each amount on any view to significant numbers of the populace, as probably do active members of the Awami League.

(e) Indeed it seems that any member of the population, whether or not a member of a particular group, is at risk of having his human rights abused. For, if arrested by the police, he is at risk of protracted unlawful detention, brutality, extortion, physical and psychological torture and even death, on the part of officers who operate in a climate of impunity and trade freedom for bribes.

(f) Equally the human rights of a substantial number of the state’s children, and thus obviously of a vast constituency, are at risk of infringement, particularly under Articles 3 and 4 of the Human Rights Convention.

(g) Just as the defendant was required to look at circumstances in Bangladesh in general, so the authors of much of the objective material have attempted to address it generally as well as in particular. Their conclusion is that a serious risk of persecution and of human rights abuses exists on a general scale. As collected in the CIPU reports, they say, for example that: (i) serious human rights abuses are “numerous”; (ii) violence in politics is “pervasive”; (iii) corruption “plagued” the country; (iv) the use of torture is “widespread”; (v) the use of the police for political purposes is “frequent”; (vi) domestic violence is “widespread”; (vii) the abuse of children is “common at all levels of society throughout the country”; (viii) violence between student wings of political parties is “endemic”; and (ix) oppression of religious minorities is becoming “systematic”. It is all too clear that persecution and human rights abuses are not the isolated problems, at the margins of life in Bangladesh, which, through Miss Richards, the defendant would have me accept. According to the Foreign Office, Bangladesh is ranked worst for corruption in an international index; according to the IRB of Canada it is ranked either second worst or fourth worst in indices of violence against women; and according to CIPU it is ranked 118th out of 139 in an index of press freedom.

[56]As did the ministers in commending the two orders to Parliament in 2003, Miss Richards relies on the very low ratio of grants of asylum by the U.K. to applications for it on the part of citizens of Bangladesh. In 2002, for example, the defendant received about 610 such applications, of which he refused about 440, granted exceptional leave to remain in about 170 and granted asylum only in one or two. Indeed, in their despatch in 2002 of 560 effective appeals from citizens of Bangladesh, adjudicators allowed only 55, being a rate of success less than half of that applicable to all appeals. According to a statement of Mr Walsh, Deputy Director of the defendant’s Asylum and Appeals Policy Directorate, “Those statistics showed that, in general terms, asylum and human rights claims from Bangladesh were not succeeding. That therefore suggested that in general terms there was no serious risk of persecution and that, therefore, Bangladesh was capable of being designated.” Mr Walsh and thus Miss Richards seek to fortify this point by reference to the content of six determinations of the Immigration Appeal Tribunal in or around 2002 in which second appeals by citizens of Bangladesh were dismissed.

[57]My conclusion is that Mr Walsh’s point cannot bear much weight. With respect to him, it does not necessarily follow that the number of invalid claims suggests an absence of serious risk of persecution in Bangladesh. It is not difficult to imagine why the number of aspiring economic migrants from Bangladesh to Europe, and in particular to the U.K, all shrouding their claims with illegitimate invocation of the Conventions, might be unusually high. And one need look no further than some of that IAT determinations on which he relies, in which for example one claim is castigated as “entirely spurious” and another as “completely incredible”, in order to conclude that the statistics may represent a verdict at least as much upon the number of bogus claims by citizens of Bangladesh as upon the acceptability under the Conventions of the likely treatment, if returned to Bangladesh, of honest applicants with at any rate genuine fears.

[58]Finally Miss Richards relies heavily on the margin of appreciation which should be afforded to the defendant’s decision. Conceivably, says Miss Richards, others than the defendant might have concluded in 2003 – or might conclude now – that the criteria in section 94(5) of the Act were – or are – not satisfied in relation to Bangladesh. But, so she submits, the defendant’s decision remains one that was – and is – reasonably open to him.

[59]It is in particular this final argument which, during the months since I reserved judgment, has made me pause anxiously. In section 94(5) Parliament has provided not that the circumstances specified should exist in Bangladesh but that the defendant should be satisfied that they exist. His is the unenviable task of seeking to curb illegal immigration. It was in that context that he made the decision to add Bangladesh to the list; and he claims that it is one of a raft of decisions which have to some extent achieved their object.

[60]There is no doubt that Miss Richards is right to press upon me that in this situation the margin of application is considerable; or, put another way, that the court ought to be particularly cautious before reaching a conclusion that the defendant’s decision falls outside the spectrum of different, yet reasonable, conclusions which might be reached in relation to circumstances in Bangladesh. I believe that I have afforded a proper margin to the defendant’s decision by having striven protractedly to find a rational defence of it. In that endeavour, however, I have failed. I hold that, whether in July 2003, when it was added to the list, or at any time since then, no rational decision-maker could have been satisfied that there was in general in Bangladesh no serious risk of persecution of persons entitled to reside there or that removal of such persons thither would not in general contravene the UK’s obligations under the Human Rights Convention. The objective material drove and drives only one rational conclusion; and it is to the contrary.

SECTION H: CERTIFICATION OF THE CLAIMANT’S CLAIM

[61]In that, as I have held, he has unlawfully included Bangladesh in the list under section 94(4) of the Act, it follows that the defendant’s decision whether to certify the claimant’s claim fell to be made only under section 94(2) and without the additional application of section 94(3). Mr Mustakim argues that, in the event of my conclusion that the inclusion of Bangladesh in the list was unlawful, the decision to certify the claimant’s claim would necessarily be unlawful because it would have been made by means of an unlawful application of section 94(3).

[62]In that regard I disagree with Mr Mustakim. As I have explained in §26, the terminological reverse in section 94(3) of the test set out in section 94(2) has been held in L to have no measurable legal effect. By the API to which I have referred in §29, the defendant acquainted his caseworkers with the content of that decision. Thus it is no surprise that, although in the letter of refusal to the claimant dated 26 November 2003 there are indeed references to the application of section 94(3), the decision to certify is expressed not on the basis that the defendant was not satisfied that the claim was not clearly unfounded but on the basis that the defendant has “decided that [the] claim is clearly unfounded”. It is plain therefore that, even in relation to this applicant from Bangladesh, the defendant has in the event asked himself the right question, namely that posed by section 94(2); and that I must proceed to consider whether, by reference to the facts, he has answered it lawfully.

[63]Although Miss Richards does not abandon the defendant’s contention that the claimant never properly sought protection from the authorities against his assailants and so cannot establish its likely insufficiency, it is not surprising, in the light of the objective material in that regard, that she prefers to press the other main reason given by the defendant for refusal of the claim, namely the facility for the claimant to relocate within Bangladesh. She submits that, although he might again be unsafe in Sylhet, there is no evidence that he would be unsafe in other parts of Bangladesh and, in particular, no evidence that his apostasy from Chhatra Dal has made him a marked man nation-wide or that those who assailed him have the power or inclination to cause him to be tracked down elsewhere in Bangladesh. There is a determination of an adjudicator, Mr Axtell, in Hassan v SSHD on 2 September 2003, in relation to the risk of persecution at the hands of Chhatra Dal, on which, including in relation to the general issue raised by this claim, Mr Mustakim places reliance. Miss Richards points out, however, that in that case a warrant had been issued for the appellant’s arrest and the army and the police were actively searching for him. There is no comparable evidence of any high-level, let alone national, interest in the claimant. At present he seems to have no clear answer to this point which in my view was a sufficient foundation not only for the refusal of his claims but also for the decision to certify under section 94(2) that they were clearly unfounded.

[64]I therefore propose, subject to argument on this form of the order, to make a declaration that the defendant’s inclusion of Bangladesh in the list under section 94(4) of the Act was and is unlawful but otherwise to dismiss the claim.