McPherson v Secretary of State for the Home Department

An appellate tribunal which overturns a decision on one of several independently raised human-rights grounds must ensure that any remaining ground is determined. Under Article 3, the state’s positive obligation to protect a person from ill-treatment by private individuals requires practical and effective protection, but does not require a particular legal form or guarantee safety. Civil remedies backed by penal sanctions may suffice. The question is whether the available protection is effective in practice, having regard to the evidence concerning its operation and enforcement.

The appellant faced deportation to Jamaica after a conviction for supplying a Class A controlled drug. An adjudicator allowed her appeal under Article 3, based on the risk of renewed violence from a former partner and inadequate state protection, but did not determine her Article 8 claim concerning her children.

The Immigration Appeal Tribunal allowed the Secretary of State’s appeal on Article 3 and declined to remit the Article 8 claim. The appellant appealed, challenging both the failure to determine Article 8 and the Tribunal’s approach to the evidence concerning protection under Jamaica’s Domestic Violence Act 1995.

1. Article 8 claim. The Immigration Appeal Tribunal erred in refusing to remit the undecided Article 8 claim. Once the Article 3 decision had been overturned, the appellant remained entitled to a determination of the second ground which she had expressly kept alive.
2. Appellate intervention. The Tribunal was entitled to reconsider the adjudicator’s Article 3 conclusion in light of further evidence placed before it by consent. That evidence corrected the adjudicator’s understanding that the Domestic Violence Act 1995 provided no custodial sanction for breach of a restraining order.
3. Nature of the Article 3 obligation. Article 3 and the Convention jurisprudence require protection which is practical and effective. The state must take reasonable measures to make necessary protection available. It is not a guarantor of safety or of non-violation. Protection need not take the form of criminal law alone; appropriately framed civil remedies, including protective orders backed by penal sanctions, may provide sufficient deterrence.
4. Effectiveness in practice. The Tribunal erred in treating the existence of statutory remedies and possible imprisonment as sufficient. It had to consider whether the remedies were practically effective, including evidence concerning police attitudes, resources, priorities, enforcement of restraining orders and the likelihood that protection could be obtained before renewed violence.
5. The Article 3 and Article 8 claims were remitted to an adjudicator, who could be the original adjudicator if the parties agreed. The court indicated that evidence concerning the Domestic Violence Act, use of restraining orders, enforcement powers and the practical availability of protection would be material. The appeal was allowed with costs, assessed on a public funding basis.

• Immigration Appeal Tribunal: allowed the Secretary of State’s appeal on Article 3, set aside the adjudicator’s decision, and declined to remit the undecided Article 8 claim.
• Court of Appeal (Civil Division): allowed the appellant’s appeal and remitted both Article 3 and Article 8 claims to an adjudicator.