A v Secretary of State for the Home Department

Fresh evidence in asylum and human-rights appeals is governed by the wider interests of justice. The ordinary requirements for admitting fresh evidence do not apply with the same strictness where removal may expose a person to death or prohibited ill-treatment.

Removal breaches Articles 2 or 3 where substantial evidence establishes a real risk of death or inhuman or degrading treatment from non-state agents. Certainty of harm is unnecessary. Treatment is degrading where it is capable of producing fear, anguish and inferiority that humiliate or debase the victim or break physical or moral resistance.

Being targeted by criminals as an informer does not, without evidence of an actual or imputed political stance, establish persecution for political opinion under the Refugee Convention.

The appellant, a Jamaican citizen, reported a gang member for killing her daughter. The gang subsequently killed her son, threatened her as an informer and remained unwilling to forgive her. After leaving her community, she experienced repeated sexual exploitation while living without family or community support.

An adjudicator dismissed her asylum and human-rights appeal. The Immigration Appeal Tribunal accepted additional aspects of her account but concluded that she could live safely and without undue hardship in previously untried parts of Jamaica. It dismissed her appeal on 19 March 2002.

The Court of Appeal extended time, granted permission and treated the renewed application as the appeal. The central questions were whether further expert evidence should be admitted, whether the feared persecution arose from political opinion, and whether removal would create a real risk contrary to Articles 2 or 3 of the European Convention on Human Rights.

1. Appeal allowed unanimously. Keene LJ delivered the leading judgment. May LJ and Peter Gibson LJ agreed. The removal directions were quashed.

2. The court admitted the further expert evidence. The principles in Ladd v Marshall [1954] 1 WLR 1489 do not apply with the same strictness in public-law cases concerning asylum or Articles 2 and 3. The proper approach is the wider interests of justice. Where removal may endanger life or expose a person to prohibited ill-treatment, anxious scrutiny cannot sensibly be undertaken while relevant and credible evidence is excluded. The new evidence was credible, potentially significant and substantially fuller than the material before the Tribunal.

3. The Refugee Convention claim failed. The appellant was threatened because the gang regarded her as an informer and wanted revenge. Although an imputed political opinion may arise where a person is perceived as supporting law and order, there was no evidence that this gang attributed any political stance to her. Her fear was therefore not shown to arise from political opinion or another Convention reason.

4. Under Section 65 of the Immigration and Asylum Act 1999, an appeal could be allowed where the challenged decision breached the appellant's human rights. Articles 2 and 3 impose absolute obligations, without a proportionality assessment. Removal may violate them where a real risk of death or prohibited treatment comes from non-state agents in the receiving country.

5. The consistent and uncontradicted expert evidence established a real risk that the gang's island-wide network would eventually locate the appellant and seek revenge. The lapse of time and her earlier survival did not remove that risk. The law required a real risk, not certainty that she would be killed.

6. Independently, relocation without family, employment or community support would leave the appellant extremely vulnerable to renewed sexual exploitation. Her previous persistent abuse, exacted as the price of temporary safety, met the concept of degrading treatment. Returning her therefore created a real risk contrary to Article 3 as well as a real risk to life.

7. Remittal was unnecessary. The evidence admitted only one sensible interpretation, and the Court of Appeal was able to determine the human-rights issue conclusively.

1. Court of Appeal (Civil Division): Extended time, granted permission to appeal, admitted the fresh evidence and allowed the appeal under Section 65 of the Immigration and Asylum Act 1999. The removal directions were quashed: [2003] EWCA Civ 175.

2. Immigration Appeal Tribunal: Dismissed the appeal on 19 March 2002. It concluded that previously untried areas of Jamaica offered a safe and reasonable internal relocation alternative.

3. Adjudicator: Dismissed the asylum and human-rights appeal. The threat was not for a Refugee Convention reason, and relocation elsewhere in Jamaica was considered safe and reasonable.