Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004175
First-tier Tribunal No: PA/00416/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 18 August 2026

Before

UPPER TRIBUNAL JUDGE BULPITT

Between

Secretary of State for the Home Department
Appellant
and

OSB
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr N Wain, Senior Home Office Presenting Officer
For the Respondent: Mr S Tawiah, Counsel instructed by Averoes Solicitors

Heard at Royal Courts of Justice on 3 August 2026

Order Regarding Anonymity

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
(1) Introduction

1. In this determination I remake a decision in respect of the OSB’s appeal against the refusal of his protection claim on refugee grounds. It follows a protracted history of hearings in the First-tier Tribunal (FTT) and the Upper Tribunal (UT) of the Immigration and Asylum Chamber which I set out in more detail below. For reasons I will explain when setting out the history, I am only making a decision in respect of OSB’s protection claim on refugee grounds and I am not considering his claim to protection on human rights grounds.

2. My decision follows a hearing in which I heard evidence from the appellant and submissions from Mr Wain and Mr Tawiah. I am grateful to both advocates and those instructing them for the helpful submissions that were made.

(2) Background

3. OSB is now 41 years old and is a citizen of St Kitts and Nevis. He arrived in the United Kingdom in February 2022, saying he wanted to visit for 3 weeks. He was refused leave to enter on suitability grounds, at which point he raised a protection claim.

4. The basis of OSB’s protection claim is that from the age of 15 he was involved with a criminal gang in St Kitts, committing criminal offences and spending time in prison as a result, including a five year sentence imposed in respect of a shooting and three periods of remand accused of murder. In 2018 he participated in a “peace programme”, which involved him turning away from crime and working with the police to persuade gang members to move away from criminal activity. OSB claims that, as a result of his participation in the programme, gang members who now consider him to be a police informer want to kill him and have made attempts to take his life. OSB claims that the police in St Kitts are unable to protect him from this threat and therefore he claims that he is a refugee because he has a well-founded fear of persecution in St Kitts because of his imputed political opinion and the state authorities there are unable or unwilling to protect him.

5. Immediately after his asylum interview had been conducted, OSB was arrested and remanded in custody in relation to a request that he be extradited to Saint Maarten to stand trial, accused of a murder committed in 2011. OSB’s extradition was ordered by DJ Goldspring in March 2023 and an appeal against that decision was dismissed by Kerr J in February 2025 ([2025] EWHC 183 (Admin)). OSB has not yet been extradited to stand trial because the Extradition Act 2003 prohibits extradition before an asylum claim is finally determined, but he has remained remanded in custody.

6. On 14 March 2023 the Secretary of State for the Home Department (SSHD) issued a decision refusing OSB’s protection claim. In that decision she accepted OSB’s account of being a gang leader who has served sentences of imprisonment for crimes and been acquitted of other crimes. The SSHD rejected, however, OSB’s claim that his life is at risk in St Kitts as a result of his participation in the peace programme. OSB appealed against the SSHD’s decision to the First-tier Tribunal.

7. A panel consisting of First-tier Tribunal Judges Robinson and Hughes heard OSB’s appeal on 7 November 2023. In a decision (“determination 1”) promulgated following that hearing, the panel found that: OSB’s account of the threat to his life in St Kitts was likely to be true; he did have a well-founded fear of persecution as a result of his imputed political opinion; and he would not receive adequate protection in St Kitts. Accordingly, the panel allowed OSB’s protection appeal on refugee grounds and on human rights grounds, finding that his return to St Kitts would be incompatible with his rights under articles 2 and 3 of the European Convention on Human Rights.

8. The SSHD appealed to the Upper Tribunal against the panel’s decision, arguing that: (1) the panel had erred by failing to apply the presumption arising from section 72 of the Nationality Immigration and Asylum Act 2002 (the 2002 Act) that OSB is excluded from protection under the Refugee Convention; and (2) the panel had reached an irrational conclusion that there was insufficient protection available in St Kitts or had failed adequately to explain that finding.

9. Upper Tribunal Judge O’Brien heard the SSHD’s appeal and, in his decision (“determination 2”), he found that the panel had erred by failing to apply section 72 of the 2002 Act and failing to consider whether OSB was excluded from the protection of the Refugee Convention. Judge O’Brien therefore set aside the panel’s decision to allow OSB’s appeal on refugee grounds. Judge O’Brien found, however, that the panel’s finding that there would not be a sufficiency of protection available to OSB in St Kitts was rational and adequately explained. He therefore preserved all the findings of fact made by the panel in determination 1 and the panel’s decision to allow OSB’s appeal on human rights grounds. Judge O’Brien then remitted OSB’s appeal to the First-tier Tribunal so that the same panel of Judges could apply section 72 of the 2002 Act, consider whether OSB was excluded from protection under the Refugee Convention and make a new decision regarding OSB’s appeal on refugee grounds.

10. First-tier Tribunal Judge Robinson heard OSB’s remitted appeal alone on 25 February 2025 and provided her decision in “determination 3” on 10 March 2025. Judge Robinson found that OSB had rebutted the presumption that he constitutes a danger to the community of the United Kingdom and therefore that he was not excluded from protection under the Refugee Convention. Judge Robinson accordingly allowed the appeal on refugee grounds again. The SSHD appealed against Judge Robinson’s decision again.

11. In a decision promulgated on 27 March 2026 (“determination 4”) the President of the Upper Tribunal (Immigration and Asylum Chamber) and I found that determination 3 involved an error of law such that it must be set aside. For convenience I have attached determination 4 as an annex to this decision. Having set aside determination 3, we issued directions for the relisting of OSB’s appeal in the Upper Tribunal so that a fresh decision could be made in respect of OSB’s protection appeal on refugee grounds.

12. It remains the case therefore that the appellant’s protection appeal has been allowed on human rights grounds. The outstanding question is whether, applying section 72 of the 2002 Act, the appellant is excluded from the protection of the Refugee Convention and consequently cannot succeed in his protection appeal on refugee grounds.

(3) The Legal Framework

13. The applicable legal framework for making a decision on the outstanding question of whether OSB is excluded from the protection of the Refugee Convention is set out at [13] – [16] of determination 4 which is annexed to this decision.

14. In addition to those paragraphs, on 23 March 2026 the Court of Appeal gave judgment in Secretary of State for the Home Department v KD [2026] EWCA Civ 349 which involved consideration of whether KD, having been convicted of the particularly serious crime of murder, was excluded from the protection of the Refugee Convention. The judgment of Lord Justice Peter Jackson with which Arnold LJ and Dove LJ agreed, included the following passages which the parties agreed provide relevant guidance to me today:

47. The assessment of whether a person who has committed a particularly serious crime constitutes a danger to the community involves consideration of the nature of the crime, the likelihood of further serious offending, and the level of harm that might result.
….
51. All assessments of dangerousness depend on their facts. In this case, the index offence and the feared harm were of such gravity that, in order to displace the statutory presumption, KD would have had to show that the likelihood of future serious offending was so low that it could effectively be discounted….

(4) Analysis

15. Without taking a formulaic approach I have found it helpful to follow [41] of Secretary of State for the Home Department v KD and to structure my assessment of whether OSB constitutes a danger to the community by considering (1) the nature of his crime, (2) the likelihood of further serious offending, and (3) the level of harm that might result.

Nature of the Crime

16. It is a remarkable feature of this case that, despite the fact more than four years have passed since OSB made his protection claim and despite the extradition proceedings that have taken place, no official record of OSB’s criminal convictions in St Kitts and Nevis has ever been adduced. Instead, the evidence of OSB having been convicted of an offence and sentenced to a period of imprisonment of at least two years (and therefore to have been convicted of a particularly serious crime) comes from his own admissions in his asylum interview and subsequent witness statements which the SSHD have accepted to be accurate and correct.

17. The appellant described in his asylum interview being “accused of another shooting, and I was found guilty for that case and received 19 years in prison, went to appeal and I got a five year sentence which was three years.” He gave no further description of the nature of that “shooting” offence in his first witness statement dated 9 June 2023 other than that it occurred when he was nineteen years old. In a second statement dated 28 July 2026 he said that “I was not found in possession of the firearm but was convicted under the strict firearms legislation applicable in my country.” When I asked him about the conviction as he was giving oral evidence, the appellant explained that it involved “a vehicle coming into the area and someone ran through an alley and shot at the vehicle, the vehicle had two or three shots in it and I got arrested a few days later and charged with shooting with intent”.

18. This description of the offence must be viewed in the context of OSB’s admission that at this time he was a member of the KMS gang and that gang life involved “fighting, battling, stabbing. If you came west you could get beat up, shot up, chopped up with a machete. If you went east it was the same thing” (see asylum interview Q110).

19. On the basis of this evidence, which comes from OSB’s own candid admissions which I accept as true, I find that the crime OSB was convicted of committing and for which he served a sentence of five years imprisonment, was a crime of an especially grave and dangerous nature. It involved the discharge of a gun in a public place in a callous and reckless manner. I find it was deliberate and likely to have been targeted towards rival gang members but that it risked the lives not only of those directly targeted but also any member of the public who happened to be in the area at the time. The offence will have had a considerable impact on the community who were unquestionably placed in danger by this offence.

20. In addition to the particularly serious crime that led to his serving a sentence of imprisonment, the evidence is that OSB was involved in further criminality during his years as part of the KMS gang. OSB describes during that time working his way up the hierarchy to become a leader of the gang. He described how that time involved fighting, battling, stabbing, shooting and chopping with a machete. He also describes selling “drugs like coke and weed” to earn money during that time. The country expert instructed to prepare a report on behalf of OSB, Newrish Nital describes OSB embracing the nomenclature “fearless” and that “[h]e got involved and led his followers in criminal activities and antisocial conducts for many years.” In his evidence before me OSB explained that his position as a leader of the KMS gang involved him giving instructions to “foot soldiers” in the gang.

21. The appellant also explained in his asylum interview that he has spent time in prison on remand accused of murder but said that he was acquitted of those allegations. Newspaper reports confirm that OSB was charged with and then acquitted of, an allegation that he shot and killed Gregory Mills while he was sat in his car in May 2017. Another newspaper report records that OSB was charged with shooting and wounding David Thomas in June 2011. In his most recent witness statement OSB says that he was remanded in custody facing allegations of murder on three occasions – between July 2002 – July 2003, between October 2015 and July 2016 and between May 2017 and January 2019. He is in addition currently remanded in custody and awaiting extradition accused of a murder in 2011 committed in the context of a feud about the trafficking of cocaine, in which Mr Amador Jones was shot six times near a snack bar in St Maarten.

22. During the hearing before me that SSHD raised for the first time the suggestion that OSB had been convicted of the offence of murder based on a comment made in an expert report by Dr Julia Kozma. In that report Dr Kozma said “[OSB] also concedes that in the past, before a previous conviction for murder in 2005, he was a member of a gang.” I do not consider this brief reference in a detailed report on the subject of prison conditions to a murder conviction to be persuasive evidence that OSB has actually been convicted of murder. Had there been such a conviction I would expect the SSHD to have provided objective evidence of it. OSB has consistently said that he has always been acquitted of the allegations of murder he has faced and I consider that more likely to be correct. The repeated allegations that the appellant has been involved in shootings of rival gang members is however entirely consistent with the appellant’s own account of his life as a leader of the KMS gang and that if someone came to the wrong part of St Kitts during that time, they risked being stabbed, chopped with a machete or shot by members of the gang which he led.

23. It is apparent from this evidence and I find, that for almost two decades OSB was involved in serious criminality of an extremely grave nature, involving the use of guns and other weapons and the infliction of serious violence on others. OSB’s very serious violent criminality during this time unquestionably had a considerable adverse effect on the community. He was also involved in the supply of illegal drugs which likewise would have had an adverse effect on the community.

Likelihood of further serious offending

24. OSB’s case is that despite his previous involvement in serious criminality, there is no likelihood of further serious offending because whilst in prison on remand in 2019 he changed his course and worked with rival gang leaders to establish the peace programme in St Kitts. In his most recent statement OSB says that following his release from prison in 2019 he has not been involved in criminal offending or gang activity either in St Kitts or since 2022 in the United Kingdom. OSB argues that there is no likelihood of further serious offending now.

25. In determination 1, having placed considerable weight on letters from Assistant Commissioner of Police Mr Adolph Adams, Attorney General of St Kitts and Nevis Mr Gareth Wilkin, and Community Development Officer Delroy Prentice, the panel found that OSB’s account of being an instigator of the peace programme in 2019 with the intention of stopping violence and ending gang activities was likely to be true. In determination 3 the Judge further found that OSB had not offended following his release from prison in 2019 and that from 2019 until he left St Kitts and came to the United Kingdom OSB was living as a law-abiding citizen. Those findings of fact have been preserved.

26. The factual matrix for an assessment of the likelihood of further serious offending therefore is that after eighteen years of entrenched serious criminality while he was part of the KMS gang between 2001 and 2019, the appellant has not in the seven years since 2019 committed any further criminal offences, though for four of those seven years he has been in prison awaiting extradition.

27. The submission on behalf of OSB is that in these circumstances, OSB has reformed from his previous criminal involvement and the likelihood of him committing a serious offence in the future can be effectively discounted. In support of that submission OSB advances a report by “Independent Risk Assessor/Registered Probation Officer/Award Winning Author” Rabina Haque. In that report Ms Haque concludes that OSB “poses a medium-low risk of harm to the public, known persons, prisoners and to children” and presents “a medium-low risk of re-offending and a medium-low risk of causing serious harm to the public”. Particular weight is placed on Ms Haque’s comment that her assessment “present (sic) a comparative and evidence-based judgement that the probability of future harm is minimal, not non-existent.”

28. I have concerns about the rigour of the assessment undertaken by Ms Haque and consequently about the weight that can be attributed to her assessment of risk. In section 3 of the report, Ms Haque identifies that the report is based on a telephone interview with OSB and “documentary records” which included the previous determinations of the Tribunal a letter of instruction, counsel’s opinion plus unspecified “other supporting letters, included (sic) Witness Statements”. Ms Haque refers to OSB having “demonstrated a significant history of gang affiliation in Saint Kitts and, to my understanding, his previous conviction for a number of serious offences.” Ms Haque acknowledges in her report however that she had no “sight of” the murder allegation OSB currently faces, and she does not mention the specific shooting conviction which led to OSB’s imprisonment. Given her apparent lack of clarity about the offences OSB has committed, when he committed them and what they involved, it is difficult to see how Ms Haque applied a standardised actuarial risk assessment tool to assess the risk OSB poses. Further, without any information about the address at which it is proposed OSB would reside or the cousin with whom he would reside, it is difficult to understand how they are considered to be “a protective factor by providing structure and reducing exposure to criminogenic influences”. Likewise, it is hard to understand the conclusion that “the presence of supportive and positive relationships may represent a protective factor in the future” when Ms Haque acknowledges that OSB’s imprisonment has limited his ability to develop relationships in the United Kingdom. It is notable in this context that Ms Haque does not appear to have had any contact with OSB’s son. Overall, given the limited information that was at her disposal I do not consider the assessment of risk by Ms Haque to carry great weight.

29. In any event the assessment of Ms Haque was that the appellant poses a medium-low risk of reoffending and a medium-low risk of causing serious harm to the public. It is hard to reconcile this assessment with the suggestion that the probability of future harm is minimal. In my judgment the assessment of a “medium-low” risk does not indicate that the likelihood of re-offending can be discounted, but actually points towards the conclusion that the past offending suggests a likelihood for further offending.

30. Turning to OSB’s conduct while in the United Kingdom, it is in my judgment significant that when OSB first arrived in the United Kingdom his response to his initial encounter with immigration officers was to lie about his intentions and claim he only intended to visit for three weeks when his evidence is that in fact he intended to stay in the United Kingdom. Having been remanded in custody as a result of the extradition proceedings, there is evidence that OSB has been more cooperative. A reference from a coach in the StandOut programme which operates in HMP Wormwood Scrubs, identifies that OSB has engaged in purposeful activity and shown a positive commitment to his personal development. The reference further says that OSB has been given a responsible role as a Team Leader in the Main Stores of the prison. These are positive factors which indicate OSB’s ability to positively contribute to society.

31. Bringing this all together, I give weight to the positive steps that OSB took in 2019 to instigate and participate in the peace programme which indicate OSB’s intention to distance himself from criminality. I also have regard to positive work OSB has done while in prison in the United Kingdom and the fact that in the United Kingdom OSB would be separated from the gang conflicts which were a feature of his criminality in St Kitts. I cannot however conclude that the likelihood of OSB re-offending can be discounted. The reality is that for almost all of his adult life OSB has either been involved in criminality as part of a gang or has been in prison facing allegations of serious criminality. As previously described his criminality has been deeply entrenched and has involved him not only offending himself but also leading “foot soldiers” in criminality. In these circumstances notwithstanding his attempts to promote peace in St Kitts and his engagement with the StandOut Programme while in prison in the United Kingdom, I conclude that given his criminal history there remains a likelihood of OSB being involved in further serious offending.

The Level of Harm that might result

32. If OSB were to repeat the criminal offending with which he has been involved in the past, there can be no sensible doubt that the result would be a high level of harm. OSB admits that his years in the gang involved fighting, stabbing and shooting. His conviction was for a very serious shooting offence. His role as a leader of “foot soldiers” was significant. The harm feared therefore is especially grave.

Conclusion

33. The burden is on OSB to rebut the presumption that because he has been convicted of a particularly serious offence he constitutes a risk to the community of the United Kingdom. Whilst I acknowledge the steps OSB has taken to turn away from his past offending by participating in the peace programme in St Kitts, I do not find that he has succeeded in rebutting that presumption. OSB’s past offending has been deeply entrenched over a considerable period of time and has involved offending of extreme gravity. The likelihood of him returning to such serious offending cannot be discounted and the level of harm that would be caused if he did so is high. In all these circumstances I conclude that OSB does constitute a danger to the community of the United Kingdom and as such he may not claim the benefit of Article 33(1) of the Refugee Convention.

34. As previously stated this conclusion does not affect the preserved finding in determination 1 that the removal of the appellant to St Kitts would be incompatible with his rights under Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Notice of Decision

The removal of OSB from the United Kingdom would not breach the United Kingdom’s obligations under the Refugee Convention and his appeal is on refugee grounds therefore dismissed

Luke Bulpitt

Judge of the Upper Tribunal
Immigration and Asylum Chamber

4 August 2026

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004175
First-tier Tribunal No: PA/00416/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

.....................................................

Before

THE HONOURABLE MR JUSTICE LAVENDER, PRESIDENT
UPPER TRIBUNAL JUDGE BULPITT

Between

Secretary of State for the Home Department
Appellant
and

OSB
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr N Wain, Senior Home Office Presenting Officer
For the Respondent: Mr S Tawiah, Counsel instructed by Averoes Solicitors

Heard at Field House on13 January 2026

Order Regarding Anonymity

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

(1) Introduction

1. This is an appeal by the Secretary of State for the Home Department (“the SSHD”), with permission granted by Upper Tribunal Judge Perkins, against the decision of First-tier Tribunal Judge Robinson on 10 March 2025 (“determination 3”) that OSB, who had been convicted of a particularly serious crime, as defined in section 72 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) had rebutted the presumption under that section that he constitutes a danger to the community of the United Kingdom and therefore that he was not excluded from protection under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and its Protocol (“the Refugee Convention”).

2. Pursuant to section 12(1) of the Tribunals, Courts and Enforcement Act 2007, the issue for us is whether the making of determination 3 involved the making of an error on a point of law.

3. As we will explain, this appeal is solely concerned with OSB’s claim to protection on refugee grounds and is not concerned with his claim to protection on human rights grounds.

(2) Background

4. OSB is 40 years old and a citizen of St Kitts and Nevis. He arrived in the United Kingdom in February 2022, saying he wanted to visit for 3 weeks. He was refused leave to enter on suitability grounds, at which point he raised a protection claim.

5. The basis of his protection claim is that from the age of 15 he was involved with a criminal gang in St Kitts, committing criminal offences and spending time in prison as a result, including a five year sentence imposed in respect of a shooting. He became the leader of the gang and between May 2017 and January 2019 he was remanded in custody, charged with murder, before he was eventually found not guilty of that offence. In 2018 he participated in a “peace programme”, which involved him turning away from crime and working with the police to persuade gang members to establish peace and to move away from criminal activity. This peace programme led to a significant reduction in gang crime in St Kitts. OSB claims, however, that, as a result of his participation in the programme, gang members who now consider him to be a police informer want to kill him and have made attempts to take his life. OSB claims that the police in St Kitts are unable to protect him from this threat and therefore he claims that he is a refugee because he has a well-founded fear of persecution in St Kitts because of his imputed political opinion and the state authorities there are unable or unwilling to protect him.

6. After his asylum interview had been conducted and while the SSHD was considering his protection claim, OSB was arrested and remanded in custody in relation to a request that he be extradited to Saint Maarten to stand trial, accused of a murder committed in 2011. OSB’s extradition was ordered by DJ Goldspring in March 2023 and an appeal against that decision was dismissed by Kerr J in February 2025 ([2025] EWHC 183 (Admin)). OSB has not yet been extradited to stand trial.

7. On 14 March 2023 the SSHD issued a decision refusing OSB’s protection claim. In that decision she accepted OSB’s account of being a gang leader who has served sentences of imprisonment for crimes and been acquitted of other crimes. The SSHD rejected, however, OSB’s claim that his life is at risk in St Kitts as a result of his participation in the peace programme, finding his account to be internally inconsistent, inconsistent with external evidence, lacking in detail and implausible. Alternatively, the SSHD found that, if his life were at risk in St Kitts, OSB would receive adequate protection from the state authorities in that country. OSB appealed against the SSHD’s decision to the First-tier Tribunal.

8. A panel consisting of First-tier Tribunal Judges Robinson and Hughes heard OSB’s appeal on 7 November 2023. In a decision (“determination 1”) promulgated following that hearing, the panel found that: OSB’s account of the threat to his life in St Kitts was likely to be true; he did have a well-founded fear of persecution as a result of his imputed political opinion; and he would not receive adequate protection in St Kitts. Accordingly, the panel allowed OSB’s protection appeal on refugee grounds and on human rights grounds, finding that his return to St Kitts would be incompatible with his rights under articles 2 and 3 of the European Convention on Human Rights.

9. The SSHD appealed to the Upper Tribunal against the panel’s decision, arguing that: (1) the panel had erred by failing to apply the presumption arising from section 72 of the 2002 Act that OSB is excluded from protection under the Refugee Convention; and (2) the panel had reached an irrational conclusion that there was insufficient protection available in St Kitts or had failed adequately to explain that finding.

10. Upper Tribunal Judge O’Brien heard the SSHD’s appeal and, in his decision (“determination 2”), he found that the panel had erred by failing to apply section 72 of the 2002 Act and failing to consider whether OSB was excluded from the protection of the Refugee Convention. Judge O’Brien therefore set aside the panel’s decision to allow OSB’s appeal on refugee grounds. Judge O’Brien found, however, that the panel’s finding that there would not be a sufficiency of protection available to OSB in St Kitts was rational and adequately explained. He therefore preserved all the findings of fact made by the panel in determination 1 and the panel’s decision to allow OSB’s appeal on human rights grounds.

11. Judge O’Brien then remitted OSB’s appeal to the First-tier Tribunal so that the same panel of Judges could apply section 72 of the 2002 Act, consider whether OSB was excluded from protection under the Refugee Convention and make a new decision regarding OSB’s appeal on refugee grounds.

12. First-tier Tribunal Judge Robinson (the Judge) heard OSB’s remitted appeal alone on 25 February 2025 and provided her decision in determination 3 on 10 March 2025. We will consider determination 3 in detail below, but, in brief, the Judge found that OSB had rebutted the presumption that he constitutes a danger to the community of the United Kingdom and therefore that he was not excluded from protection under the Refugee Convention. She accordingly again allowed the appeal on refugee grounds.

(3) The Legal Framework

13. The definition of a refugee in the Refugee Convention includes a person who, owing to a well-founded fear of persecution for reasons of his imputed political opinion, is outside his country of nationality and is unable to avail himself of the protection of that country. Article 33(1) of the Refugee Convention prohibits the refoulement of a refugee, i.e. the return of the refugee to the frontiers of territories where his life or freedom would be threatened on account of his imputed political opinion. However, Article 33(2) of the Refugee Convention provides that the benefit of that provision may not be claimed by:

“a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.”

14. Section 72 of the 2002 act applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention. So far as is relevant, the version of section 72 applicable in this case provides as follows:1

“(3) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if –
(a) he is convicted outside of the United Kingdom of an offence,
(b) he is sentenced to a period of imprisonment of at least two years, and
(c) he could have been sentenced to a period of imprisonment of at least two years had his conviction been a conviction in the United Kingdom of a similar offence.
….
(6) A presumption under subsection …(3) … that a person constitutes a danger to the community is rebuttable by that person.”

15. In EN (Serbia) v Secretary of State for the Home Department [2010] QB 633; [2009] EWCA Civ 630, the Court of Appeal considered Article 33(2) of the Refugee Convention and section 72 of the 2002 Act. Stanley Burnton LJ delivered the Court’s judgment, with which Laws LJ and Hooper LJ agreed. Of relevance to the issues before us, he held at [39] that Article 33(2) of the Refugee Convention imposes two requirements on a state asserting that a refugee is excluded from protection: (i) the refugee’s conviction of a particularly serious crime; and (ii) his constituting a danger to the community. At [45] he held that the words “particularly serious crime” in Article 33(2) are clear and that they restrict drastically the offences to which the Article applies. With regard the second requirement, he went on to say:

“45. … So far as “danger to the community” is concerned, the danger must be real, but if a person is convicted of a particularly serious crime and there is a real risk of its repetition, he is likely to constitute a danger to the community.

46. The claimants submitted that article 33(2) requires that the danger to the community must be causally connected to the particularly serious crime of which the person has been convicted. I would accept that normally the danger is demonstrated by proof of the particularly serious offence and the risk of its recurrence, or of the recurrence of a similar offence. I would also accept that the wording of article 33(2) reflects that expectation. But it does not expressly require a causal connection, and I do not think that one is to be implied. By way of example, I do not see why a person who has been convicted of a particularly serious offence of violence and who the State can establish is a significant drug dealer should not be liable to refouled under article 33(2). In any event, it seems to me that a disregard for the law, demonstrated by the conviction, would be sufficient to establish a causal connection between the conviction and the danger. If so, the suggested added requirement of a causal connection has little if any practical consequence.”

16. Stanley Burnton LJ went on to hold that section 72 is to be interpreted as creating rebuttable presumptions in relation to both of the requirements of Article 33(2), i.e. in relation to the seriousness of the crime and in relation to danger to the community (see [80]) and that, interpreted in that way, it is compatible with Article 33(2) of the Convention. At [66] of his judgment he explained the application of section 72 as follows:

“… Under section 72, it is for the Secretary of State to establish that the person in question has been convicted of a relevant offence. In practice, once the State has established that a person has been convicted of what is on the face of it a particularly serious crime, it will be for him to show either that it was not in fact particularly serious, because of mitigating factors associated with its commission, or that because there is no danger of its repetition he does not constitute a danger to the community.

(4) Determination 3

17. It was common ground before the Judge and before us that the “shooting” offence that resulted in OSB being sentenced to five years’ imprisonment was a particularly serious crime and therefore that the first requirement imposed on the state by Article 33(2) of the Refugee Convention had been met. At [9] of determination 3, the Judge identified that the issue she had to resolve was whether the presumption that OSB constitutes a danger to the community of the United Kingdom, which applies as a result of section 72(3) of the 2002 Act, can be rebutted, stating at [11] that “I need to be satisfied on the balance of probabilities that the section 72 presumption has been rebutted.” At [16] the Judge expressly directed herself to [45] of EN (Serbia) and the meaning of “danger to the community” in this context.

18. At [13]-[15] the Judge set out the preserved findings of fact made in determination 1. Those findings included that: OSB was a gang member from the age of 15 or 16; he became a gang leader; while in prison in 2017 OSB initiated a peace programme with the support of the Assistant Commissioner of Police Operations Directorate; OSB worked with him and other government authorities after his release from prison in 2019; the programme brought rival gangs together with a view to stopping the violence; and as a result of his work with the police and government authorities OSB’s life was under constant threat from 2020 until he left St Kitts in early 2022.

19. At [17]–[20] the Judge considered the evidence of OSB’s extradition proceedings, which had not been before her at the time of determination 1, explaining that she attached little weight to the fact OSB was described in Kerr J’s judgment as a “high risk prisoner” because, “I have not seen the relevant statements made by the St Maarten public prosecutor and from this brief reference in the High Court decision it is not possible to determine the context in which the reference to ‘high risk prisoner’ was made and relevance to my assessment with regards to section 72 of the 2002 Act.”

20. At [21] the Judge considered OSB’s past criminal behaviour. Because of its significance to this appeal, it is helpful to set out this paragraph in full:

“Considering the past criminal behaviour of the Appellant, his conviction for a shooting for which he was sentenced to 19 years in prison, reduced to 5 years on appeal, is not disputed. The Appellant also referred in the substantive asylum interview to being in prison “at least three or four times” for serious offences or accusations prior to leaving St Kitts in 2022, having been the leader of a criminal gang which he has been a member of from the age of 15 or 16 and been involved in fighting and stabbing and selling drugs. However, no further details have been provided by either side regarding additional convictions to that accepted for the shooting and accordingly the past criminality of relevance in my consideration is that alone.”

21. At [22] the Judge considered the SSHD’s argument that the murder OSB is accused of committing in 2011 and for which he is awaiting extradition and trial, is evidence of there being a danger of him repeating the original particularly serious crime. She concluded, however, that, as there had been no conviction in respect of the 2011 matter and no risk assessment, she was not satisfied that “the danger to the community arising from this particular matter is real.”

22. At [23]–[26] the Judge considered the SSHD’s assertion that OSB had exaggerated his role in the peace programme and that there were discrepancies in the evidence about OSB’s conduct during and after the peace programme. The Judge noted the preserved findings from determination 1 and the oral evidence which OSB gave in the hearing before her, which she stated was consistent with those findings. The Judge then analysed OSB’s account and the documentary evidence before rejecting the SSHD’s assertion and affirming that the credibility of OSB’s account had been accepted as a matter of fact.

23. At [27]–[31] the Judge set out her conclusion that OSB no longer constitutes a danger to the community. At [28] she found that OSB had demonstrated a significant degree of rehabilitation since the conviction which had resulted in a five year sentence of imprisonment, in particular his involvement in the peace programme and his living in St Kitts as a law-abiding citizen from 2018 to 2022. She noted that there was no further evidence of rehabilitation following OSB coming to the United Kingdom in 2022, but she bore in mind that for most of his time in the United Kingdom OSB had been detained as a result of the extradition proceedings. At [29] the Judge repeated that no evidence had been adduced of any convictions other than that for the shooting and noted that on the evidence there had been no further convictions since OSB’s release from prison in 2019. At [30] the Judge confirmed her overall conclusion that there is not currently a real risk of a particularly serious crime being repeated.

(5) The Appeal to the Upper Tribunal

24. The SSHD was granted permission to appeal on three grounds:

(1) In ground 1 it is argued that the Judge erred in her assessment of whether OSB constitutes a danger to the community. Within this ground, it is argued that the Judge misapplied the guidance in EN (Serbia) and erred: by only considering OSB’s conviction for shooting as relevant to the assessment of whether OSB constitutes a danger to the community; by discounting his other criminality; and when considering the 2011 murder for which OSB is awaiting extradition.

(2) In ground 2 it is argued that the Judge’s decision to attach little weight to the description in the extradition proceedings of OSB being a “high risk prisoner” was irrational.

(3) In ground 3 it is argued that the Judge failed to consider submissions made by the presenting officer that the evidence about OSB’s involvement in the peace programme was exaggerated.

25. Mr Wain, who drafted the grounds of appeal, elucidated on them in his helpful skeleton argument and oral submissions to us. We intend no disrespect by not repeating those submissions here, but will refer to them where necessary to explain our decision.

26. OSB served a reply to the grounds of appeal in compliance with rule 24 of the Tribunal’s Procedure Rules and Mr Tawiah submitted a helpful skeleton argument which he relied upon in his oral submissions. Again, we intend no disrespect by not repeating those submissions in full and we will refer to them where necessary to explain our decision. In brief, however,

(1) In response to ground 1, it is argued that the Judge correctly applied EN (Serbia) and found that there was no danger of repetition of serious crime. It is argued that the Judge’s treatment of the extradition proceedings and the outstanding allegation of murder OSB faces was lawful and that her conclusion that those proceedings did not mean that the danger to the community was “real” was one she was rationally entitled to reach. It is argued that the Judge took into account all the evidence of OSB’s criminal background and that, in the absence of further details about his previous criminal history, the Judge’s conclusion that only the shooting conviction was relevant was lawful.

(2) In response to ground 2, it is argued that the Judge’s treatment of the evidence that OSB is a high risk prisoner was rational.

(3) In response to ground 3, it is argued that the SSHD was seeking to go behind preserved findings made in determination 1 and that the Judge rationally deemed OSB’s account of his involvement in the peace programme to be credible.

(6) Analysis

27. There is agreement about the law which the Judge had to apply to resolve this appeal. It is accepted by OSB that his self-confessed conviction for a shooting offence and the five year sentence of imprisonment that resulted from that conviction means, applying section 72 of the 2002 Act, that it is presumed that he constitutes a danger to the community of the United Kingdom and that, unless he can rebut that presumption, he is excluded from refugee protection as a result of Article 33(2) of the Refugee Convention. As the Judge identified, the issue she had to resolve was whether the appellant had on balance rebutted that presumption.

28. When considering that issue, the Judge recognised the guidance provided at [45] of EN (Serbia), set out at [15] above, about the words “danger to the community” and that she was required to assess whether there was a real risk of OSB, having been convicted of a particularly serious offence, repeating such an offence. It is perhaps significant, however, that the Judge did not acknowledge [46] of EN (Serbia), which is also set out at [15] above, and which identifies that there is no requirement for a causal link between the specific criminality that brings the presumption into play and the danger the person constitutes to the community. Instead, as that paragraph makes clear, the evaluative assessment of whether a person who has committed a particularly serious crime constitutes a danger to the community requires consideration of all the evidence in order to determine whether there is a real risk of a particularly serious crime being repeated.

29. The issue, therefore, for the Judge was whether OSB could establish that there was no danger of him repeating a particularly serious offence and, consequently, that he did not constitute a danger to the community. That was an evaluative assessment which the Judge had to make in the light of all of the evidence and, in particular, in the light of the evidence of OSB’s past criminality. We are satisfied that the Judge did err in the way identified in ground 1 and that she impermissibly restricted her consideration of OSB’s criminality to the conviction for a shooting offence which resulted in a five year sentence.

30. The evidence which was before the Judge and which needed to be considered as part of that evaluation included OSB’s own evidence about his criminality in his asylum interview. In that interview he was asked “What was gang life like?” and replied “We were fighting, battling, stabbing. If you came west you could get beat up, shot up, chopped up with a machete. If you went east it was the same thing.” He also described in that interview joining the gang at the age of 15 or 16, working his way up the hierarchy of the gang to become a leader, twice being accused of murder and spending time in prison on remand as a result, being imprisoned at least four or five times and being accused of gang fights. The evidence adduced by OSB further included the report of Newrish Nital, which described OSB as one of the earliest gang members in St Kitts, who embraced the nomenclature “fearless”, and stated that he “got involved and led his followers in criminal activities and antisocial conducts for many years and had been arrested, charged, tried, convicted, and sentenced and incarcerated on several occasions.”

31. In the light of this evidence, we agree with the SSHD that the Judge’s assessment of OSB’s past criminal behaviour at [21] of her decision, which is set out in full at [20] above, involved an error of law. The Judge made reference in that paragraph to some of the evidence of OSB’s extensive criminality, but concluded that only the shooting offence, which resulted in a five year sentence, was relevant to her consideration. The Judge’s explanation for that startling conclusion is that no further details were provided regarding convictions, other than the conviction for the shooting offence. This reasoning suggests that the Judge was limiting her consideration to convictions which had been formally evidenced, rather than weighing all the evidence of criminality. We recognise the Judge’s frustration about the limited evidence that was adduced about OSB’s criminality. However, the unchallenged evidence which was before the Judge demonstrated that for more than sixteen years OSB was involved in both committing and leading others to commit crimes of the most serious kind. This evidence was unquestionably something which needed to be factored into an assessment of whether OSB constitutes a danger to the community of the United Kingdom. By closing her mind to that evidence and instead only treating evidence of a single conviction as relevant to her assessment, the Judge made an error of law as identified in ground 1.

32. Likewise, we consider that the Judge’s consideration at [22] of the 2011 murder allegation which OSB currently faces similarly involved an error of law. We take the Judge to mean that she concluded that the 2011 murder allegation OSB faces does not suggest that he is a danger. The reason for that conclusion expressed by the Judge is the fact there had been no conviction in respect of the 2011 murder and no risk assessment conducted. This reasoning again suggests that the Judge was limiting herself to only evidence of convictions when assessing whether OSB constitutes a danger. The correct position, as already identified, is that the Judge was required to make an assessment on the basis of all of the evidence in the round. The Judge was entitled to observe and take into consideration the fact that the murder allegation is unproven and that it relates to an incident that occurred as long ago as 2011. Where an allegation has been proven to the criminal standard, resulting in a conviction, it will attract considerable weight. That does not mean, however, that where the allegation has not yet been considered by a criminal court the evidence of the allegation is of no value. The fact that there is an outstanding allegation that OSB was involved in the shooting of a man six times in a feud about the trafficking of cocaine was unarguably of relevance to the required evaluation of whether there is a risk that he would repeat a particularly serious offence. The relevance of the 2011 allegation is even greater given the unchallenged evidence that this is the third time OSB has been accused of murder. It was not sufficient for the Judge to discount this evidence simply on the basis that it was an unproven allegation.

33. We find, therefore, that the Judge’s application of the test identified in EN (Serbia) and her evaluation of whether OSB had rebutted the presumption that he constitutes a danger to the community involved an error on a point of law. What was required was an evaluation of the risk of OSB repeating the commission of a particularly serious offence. That evaluation needed to have regard to all of the evidence of OSB’s past criminality on the one hand and the evidence of his rehabilitation on the other hand in order to decide whether there was a real risk of OSB relapsing and committing a particularly serious offence. Instead, it is apparent from [21] of her decision that the Judge restricted her consideration of OSB’s criminality to the single conviction for a shooting offence which led to a five year sentence of imprisonment, despite the unchallenged evidence of his involvement with far more criminal activity over a sustained period of time. It is equally apparent from [22] of her decision that in her evaluation the Judge impermissibly discounted relevant evidence about OSB being charged with murder and awaiting extradition for trial on the basis that it was an allegation and not a conviction.

34. We find this to be a material error of law which requires the Judge’s decision to be set aside and a fresh evaluation of the risk of OSB repeating a particularly serious crime to be undertaken, having regard to all of the evidence. We have considered whether we can undertake that evaluation on the basis of the evidence already before us, but we note that OSB gave oral evidence before the Judge and we do not have a clear record of that evidence. We conclude that it would be unfair to remake the decision in those circumstances without hearing from OSB, as doing so would deprive OSB of the benefit of any positive impression he may make when giving evidence. We therefore adjourn the appeal to enable OSB to give evidence before us and to enable a fresh assessment to be undertaken of the risk of OSB repeating a particularly serious crime.

35. Given our conclusion that the first ground of appeal is made out and that determination 3 must be set aside it is not necessary to deal with the second or third grounds of appeal at any length. However:

(1) We did not find there to be any merit in the suggestion that the Judge’s treatment of the comment that OSB is a “high risk prisoner” was irrational. This single comment made in the context of the extradition proceedings was open to various interpretations and emphases and the Judge’s conclusion that little weight was to be attributed to the comment was one that a reasonable and rational Judge could reach.
(2) In his submissions before the Judge Mr Wain sought to argue that there was inconsistent evidence about whether OSB had committed further offences after his release from prison and about the extent of his participation in the peace programme in 2019. He pointed to evidence from the Attorney-General of an ongoing gang war in 2023 and to the content of Mr Nital’s report. Before us, Mr Wain argued under the third ground of appeal that the Judge had failed to deal with these submissions and that her finding that OSB has not offended since his release in 2019 was flawed. We find no merit in those submissions. The letter from the Attorney-General and the evidence of Mr Nital provided no basis for concluding that OSB had offended after 2019. The fact that there is an on-going gang war does not mean that OSB was involved in that war. The Judge was rationally entitled to reach the conclusion that OSB’s account of his involvement in the peace programme was true and rationally entitled to make the finding that OSB has not re-offended since his release from prison in 2019. We find no error in the Judge’s finding that OSB was living as a law-abiding citizen following his release from prison in 2019. As the Judge acknowledged, however, the weight of that finding is somewhat reduced by the fact that for much of the time since his release he has been detained awaiting extradition in connection with the 2011 murder.

(7) Notice of Decision

36. The decision of the Judge contains an error of law and is set aside.

37. The appeal is adjourned for a remaking hearing before one or both of the members of this panel.

Upper Tribunal Judge Bulpitt

Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 March 2026