Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002381

First-tier Tribunal No: PA/08770/2019

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 18 March 2025

Before

MR JUSTICE BOURNE
UPPER TRIBUNAL JUDGE HIRST

Between

CP
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Lewis of counsel, instructed by Birnberg Peirce Solicitors
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

Heard at Field House on 12 February 2025

Order Regarding Anonymity

This is a protection appeal. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction and summary
1. The Appellant is a Jamaican national who appeals from the decision of the First-tier Tribunal promulgated on 19 December 2023 dismissing his protection and human rights appeal. The core of the Appellant’s claim was the risk of harm by criminal gangs in Jamaica.
2. The central issue in this appeal is the standard of proof to be applied in protection or Article 3 ECHR cases involving the risk of harm by non-state actors. For the reasons set out below, we have concluded that the First-tier Tribunal misdirected itself as to the standard of proof and erred in dismissing the Appellant’s appeal, and we have set aside the decision.
3. As it was common ground both before the First-tier Tribunal and before us that the Appellant faced a real risk of harm on return and that there was a real risk that he would not be able to access the Jamaican witness protection programme, we have allowed the appeal.
4. In particular, we have concluded:
a. Paragraph 155 and the second sentence of the headnote in AB (Protection, criminal gangs, internal relocation) Jamaica CG [2007] UKAIT 00018 (‘AB’) should not be interpreted literally, but instead read as if the words “reasonably likely to be” were omitted. That reading is consistent with the lower standard of proof applicable to protection and Article 3 cases.
b. The correct question, in a case to which the country guidance in AB applies, is whether there is a real risk or reasonable possibility that an individual targeted by criminal gangs will not be able to access reasonable protection through the Jamaican witness protection programme or otherwise.
c. The country guidance otherwise set out in AB remains applicable.
Background
5. The Appellant is a Jamaican national born in 1984. When the Appellant was a child, his mother acted as a police informant for a number of years and was the main prosecution witness in a murder trial which led to the conviction and imprisonment of a gang leader. In 1997 the Appellant’s mother entered the witness protection programme in Jamaica together with the Appellant, her other son and her grandson.
6. The Appellant’s mother came to the UK in 1999. The Appellant remained in Jamaica and was transferred to several different locations by the witness protection programme. On 10 May 2001 the Appellant arrived in the UK with leave to enter as a visitor. He was subsequently granted leave to remain as a student until 15 September 2002 and thereafter became an overstayer.
7. On 2 June 2006 the Appellant claimed asylum. Whilst that application was pending, he committed offences of unlawful wounding and burglaries. On 24 July 2009 he was sentenced for those offences to 4 years and 8 months’ imprisonment. He committed a further offence of rape, for which on 8 March 2013 he was sentenced to 9 years’ imprisonment with an extended licence of 5 years. Following release on licence, he was recalled to prison on 25 November 2022.
8. On 2 September 2019 the Respondent made a decision to deport the Appellant. The Respondent concluded that the Appellant was excluded from refugee protection under s72 Nationality, Immigration and Asylum Act 2002 and that his removal would not breach Article 3 ECHR.
9. The Appellant appealed. Prior to the hearing before the First-tier Tribunal, the Respondent contacted the Jamaican Ministry of National Security with a number of specific questions as to whether the Appellant’s family had been under the protection of the Jamaican witness protection programme and whether the Appellant would be accepted back into the programme if returned to Jamaica, to which the Ministry responded on 13 September 2023 as follows [questions in bold]:
“Firstly, please could you advise on the authenticity of the documentation?
The documents are authentic; original was seen on her file.
Secondly, please could you advise whether a relevant person, such as [the Appellant], could be accepted back onto the Witness Protection Programme, if they had previously abandoned such protection?
Based on the most recent threat assessment, the probability of harm against the family in Jamaica is HIGH, there is also the likelihood of psychological trauma if he returns to Jamaica. There is no guarantee that he will be placed on the Justice Protection Programme if he returns as there are various assessments that will have to be done by various state agencies before such determination can be made.
Thirdly, please could advise whether there a discretionary procedure that may be followed by the Jamaican authorities in accepting a relevant person back onto the Witness Protection Programme? [sic]
Accepting him on the programme is based on the assessments as outlined above.
Fourthly, please advise whether either of the above changes if the relevant person was under 18 when they were first admitted onto the Witness Protection Programme?
There is no change in the procedure.
Finally, does any of the above change if the relevant person was under 18 and they were first admitted onto the WPP before 2001?
There is no change.”
10. The appeal came before the First-tier Tribunal on 21 November 2023. The First-tier Tribunal dismissed the appeal on the basis that there was a ‘real possibility’ that the Appellant would be able to access the witness protection programme, and that he would therefore not be at risk on return.
11. Permission to appeal to the Upper Tribunal was refused by the First-tier Tribunal but granted by the Upper Tribunal on all grounds on 28 June 2024.
12. The appeal came before us at an error of law hearing on 12 February 2025. Having heard submissions from the parties, we announced our decision at the end of the hearing with reasons to follow. Those reasons are set out below.
The reasoning of the First-tier Tribunal
13. At the hearing before the First-tier Tribunal the Appellant accepted that he could not rebut the presumption of exclusion from refugee protection, and the only question for the Tribunal to determine was therefore whether his removal would breach Article 3 ECHR.
14. The First-tier Tribunal judge correctly directed himself that the test for a breach of Article 3 ECHR was whether “substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country” (Chahal v UK (1997) 23 HRR 413. He recognised that the standard of proof applicable in Article 3 cases (a ‘real risk’ or ‘reasonable likelihood’) is a lower standard than the civil “balance of probabilities” standard.
15. The judge then directed himself by reference to the relevant country guidance case, AB (Protection, criminal gangs, internal relocation) Jamaica CG [2007] UKAIT 00018. The headnote of AB, which reflects paragraph 155 of the decision, provides, so far as is material:
“The authorities in Jamaica are in general willing and able to provide effective protection. However, unless reasonably likely to be admitted into the Witness Protection programme, a person targeted by a criminal gang will not normally receive effective protection in his home area…” (emphasis added)
16. On the basis of a literal reading of AB, the judge concluded that where there was a reasonable likelihood that the Appellant would be accepted onto the witness protection programme, he would not be at risk on return to Jamaica. On the evidence the judge concluded that there was “a real possibility” that the Appellant would in fact be able to access the programme, and that therefore he was not at risk of Article 3 ill-treatment on return.
17. The Appellant sought permission to appeal on three grounds: (i) that the First-tier Tribunal had misdirected itself as to the correct standard of proof; (ii) that in concluding that there was a real possibility that the Appellant could access the programme the First-tier Tribunal had failed to consider the Appellant’s serious criminal record and/or his mental health issues, which were statutory factors to be considered by the programme; and (iii) the First-tier Tribunal had also failed to have regard to the evidence that in any event the witness protection programme had previously been unable to keep the Appellant safe as a child.
Ground 1
18. Ground 1 is the crux of this appeal. The central question for the Upper Tribunal is whether AB, read literally, mis-states the standard of proof to be applied to refugee and Article 3 cases, and whether the First-tier Tribunal misdirected itself in adopting that literal interpretation.
19. It is well established that in refugee and Article 3 ECHR cases, the applicable standard of proof, which is sometimes referred to as a ‘real risk’ or ‘reasonable likelihood’, is significantly below the civil standard of balance of probabilities. Even a 10% chance that the risk will occur may suffice: see, for example, MAH (Egypt) v SSHD [2023] EWCA Civ 216 at §52, citing authorities including R v SSHD ex parte Sivakumaran [1988] AC 958 and Karanakaran v SSHD [2000] 2 All ER 449. The lower standard of proof applies both to the assessment of past factual events and to the prospective assessment of risk.
20. In a protection or Article 3 case where the risk is of harm by non-state actors, the assessment of risk incorporates consideration of whether the state is able to provide sufficient protection against such harm. The state is required to provide protection against harm by non-state actors to the standard set out in Horvath v SSHD [2000] UKHL 37; that is, to provide ‘reasonable’ protection.
21. The importance of distinguishing between the risk of harm and the risk of Article 3 ill-treatment was emphasised by the House of Lords in R (Bagdanavicius) v SSHD [2005] 2 AC 668 at §24:
“In cases where the risk ’emanates from intentionally inflicted acts of the public authorities in the receiving country’ (the language of D v United Kingdom 24 EHRR 423, 427) one can use those terms interchangeably: the intentionally inflicted acts would without more constitute the proscribed treatment. Where, however, the risk emanates from non-state bodies, that is not so: any harm inflicted by non-state agents will not constitute article 3 ill-treatment unless in addition the state has failed to provide reasonable protection.”
22. The question of whether an individual’s return will breach Article 3 therefore requires consideration of both (i) whether there is a risk of harm, and (ii) in non-state actor cases, whether the state will fail to provide reasonable protection from that harm. The lower standard of proof applies to both issues.
23. That approach is unchanged by s32(4) Nationality and Borders Act 2022, which makes it clear that in a protection case the ‘reasonable likelihood’ test applies both to the risk of persecution and to the lack of sufficient protection within the meaning of s34 of the Act.
24. On a literal reading, the headnote and paragraph 155 of AB indicate that where it can be shown that it is ‘reasonably likely’ that an individual targeted by a criminal gang will be admitted into the Jamaican witness protection programme, then he will receive effective protection and hence not be at risk on return. As Mr Lewis for the Appellant pointed out, a literal reading of AB would therefore mean that even if there were only a 10% probability that an individual would be admitted to the witness protection programme, and a corresponding 90% probability that he would not, he could not succeed in a protection or Article 3 claim. Mr Lewis submitted that a literal interpretation of AB sets the standard of proof impermissibly high in protection/Article 3 cases and is liable to lead to perverse outcomes in the individual case. We agree.
25. On behalf of the Respondent, Mr Tufan urged us not to depart from AB as country guidance. But we do not consider that that is the effect of our decision. In our view it is clear that on a proper reading of the judgment in AB as a whole, and paragraphs 151-155 in particular, the Upper Tribunal was intending to draw a distinction between individuals who would be admitted to the witness protection programme, whose protection could thereby be secured, and individuals who could not access the programme, in respect of whom the evidence strongly indicated that they could not secure protection unless able to relocate internally without detection by their persecutors. Although the phrasing used in the second sentence of the headnote mirrors paragraph 155 of the judgment, there is no indication that the point was the subject of argument before the Upper Tribunal. It is certainly not apparent from AB that the Upper Tribunal was intending to impose a higher standard of proof to be applied to protection/Article 3 cases. That is a purely legal issue, not confined to the factual country situation in Jamaica, and one which does not appear to have been the subject of argument. It does not therefore form part of the ratio of AB. Even if that were not the case, a literal reading of paragraph 155 and the headnote of AB would be entirely contrary to long-established authority.
26. We therefore conclude:
a. Paragraph 155 and the second sentence of the headnote in AB should not be interpreted literally, but instead read as if the words “reasonably likely to be” were omitted. That reading is consistent with the lower standard of proof applicable to protection and Article 3 cases.
b. The correct question for the First-tier Tribunal, in a case to which the country guidance in AB applies, is whether there is a real risk or reasonable possibility that an individual targeted by criminal gangs will not be able to access reasonable state protection through the Jamaican witness protection programme or otherwise.
c. The country guidance otherwise set out in AB remains applicable.
Application to this appeal
27. In this appeal it was not in dispute that there was a real risk of harm to the Appellant from non-state actors, namely criminal gangs. Nor was it in dispute that the Jamaican witness protection programme would, if the Appellant was admitted to it, provide Horvath-standard protection. The question for the First-tier Tribunal, applying the lower standard of proof, was therefore whether there was a ‘real risk’ or reasonable likelihood that the Jamaican state would fail to provide reasonable protection against the risk of harm; that is, a real risk that the Appellant would not be able to access the programme.
28. At paragraph 30 of the determination, the First-tier Tribunal concluded that, following a literal reading of the headnote and paragraph 155 of AB, the question was “whether it is reasonably likely that the Appellant would be admitted onto the witness protection programme”. The Tribunal rejected the Appellant’s submissions to the contrary as wrongly increasing the Horvath standard for sufficiency of protection.
29. We accept Mr Lewis’ submission on behalf of the Appellant that the First-tier Tribunal in this case erred by conflating the standard of proof to be applied to the Article 3 claim with the standard of protection to be provided by the state, and by applying the wrong standard of proof to the Appellant’s ability to access the witness protection programme. On the accepted facts that error was material to the First-tier Tribunal’s decision.
Grounds 2 and 3
30. In relation to grounds 2 and 3, Mr Lewis noted that under s4 of the (Jamaican) Justice Protection Act 2001 (“the 2001 Act”), the Administrative Centre’s discretion whether to admit an individual to the programme required consideration of relevant factors, including an individual’s criminal record and the results of any medical, psychological or psychiatric examination or evaluation to determine the individual’s suitability for the programme. It was unclear whether those factors in the Appellant’s case had been brought to the attention of the Jamaican authorities prior to the response of 13 September 2023, but they created a strong likelihood that the Appellant would not in fact be admitted to the programme. Lastly, the judge had failed to acknowledge evidence from a social worker dated 27 June 2005 which supported the Appellant’s contention that he had not been safe in Jamaica even within the programme. The failure to address relevant factors and evidence meant that the First-tier Tribunal’s decision was flawed and required redetermination.
31. Mr Tufan accepted that if the Appellant succeeded on Ground 1, Grounds 2 and 3 would be ‘swept away’ and the decision would require remaking. On the evidence, however, he submitted that there was sufficient evidence to support the judge’s conclusion that the Appellant would obtain protection. Any error in relation to the evidence was not material.
32. We accept the Appellant’s submission that the First-tier Tribunal erred by failing to consider the statutory factors under s4 of the 2001 Act, as those were relevant to the availability and likelihood of state protection in the Appellant’s case. We consider it less clear that the Tribunal erred in failing to consider the apparent difficulties encountered when the Appellant was previously in the witness protection programme, given that it was common ground that the programme would provide Horvath-standard protection if available on return. However, given our conclusion on Ground 1 it is not necessary for us to reach a decision on Grounds 2 or 3.
Disposal
33. Having found a material error of law on Ground 1, we indicated to the parties our provisional view that the Upper Tribunal could redecide the appeal on the facts as found below, and that given it was common ground that there was a real risk the Appellant would not be admitted onto the witness protection programme on return, the appeal would fall to be allowed.
34. Neither party disagreed with the proposed disposal and Mr Tufan declined an invitation to make further submissions as to whether there was a real risk on return.
35. We therefore set aside the decision of the First-tier Tribunal and remake the decision, allowing the appeal on Article 3 ECHR grounds.

Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
The Appellant’s appeal is allowed on Article 3 ECHR grounds.

L Hirst

Judge of the Upper Tribunal
Immigration and Asylum Chamber
11 March 2025