Britton v Secretary of State for the Home Department

Failure to establish a Convention reason for an asylum claim does not answer a separate Article 3 claim. The tribunal must consider independently whether removal would expose the claimant to inhuman or degrading treatment and whether the receiving state provides sufficient protection.

The existence of criminal laws, an armed police force, or an overzealous police response does not, without more, establish effective control of gangs or sufficient protection. The tribunal must engage with relevant country information and claimant-specific evidence and give adequate reasons.

The court left open whether the sufficiency-of-protection test is identical under Article 3 and the Refugee Convention.

A Jamaican national entered the United Kingdom as a visitor, overstayed, and claimed asylum after violence against her family in Jamaica. She alleged that the family had been branded as informers by politically associated gangs and that the Jamaican authorities could not protect them. She also claimed that removal would breach Article 3.

The Secretary of State refused the claims. A special adjudicator dismissed the appeal, and the Immigration Appeal Tribunal dismissed a further appeal. The IAT treated sufficiency of protection as irrelevant after rejecting the Convention-reason claim and relied briefly on the existence and conduct of Jamaican security forces. The central issues were whether the IAT had adequately addressed sufficiency of protection and whether the Article 3 claim required separate consideration.

Lord Justice Tuckey gave the judgment, with Lord Justices Chadwick and Potter agreeing.

1. Appeal allowed. The case was remitted to the Immigration Appeal Tribunal for reconsideration of sufficiency of protection in the light of all the evidence. Costs were awarded to the appellant.
2. The IAT’s view that sufficiency of protection was irrelevant because the appellant had not established a Convention reason was wrong. Failure of the asylum claim did not determine the separate Article 3 claim. If return would expose the appellant and her children to inhuman or degrading treatment without sufficient protection, the human rights claim could succeed.
3. The existence of a criminal justice system and police force did not by itself establish sufficient protection. Nor did an overzealous police force or the use of armed responses show effective control of gang violence. The decision-maker had to consider evidence that the police could not control the gangs or protect targeted individuals, together with relevant country material and the appellant’s evidence, and give adequate reasons.
4. The court noted the submission that the Refugee Convention test, described in Horvath [2001] 1 AC 489 and elaborated in Banomova v Secretary of State for the Home Department [2001] EWCA Civ 807, was the same as the Article 3 test. The contrary argument relied on HLR v France [1998] 26 EHRR 29, R (Dhima) v IAT [2002] INLR 243, and McPherson v Secretary of State for the Home Department [2001] EWCA Civ 1995. The issue had not been fully argued and was left undecided pending findings of fact.
5. The tribunal was directed to consider Secretary of State for the Home Department v Krepel (26th July 2002), although it arose from a renewed application for permission to appeal, because the point had been fully argued.

1. Court of Appeal (Civil Division): allowed the appeal, awarded costs, and remitted the case to the Immigration Appeal Tribunal for rehearing.
2. Immigration Appeal Tribunal: dismissed the appellant’s appeal from the special adjudicator and treated the sufficiency-of-protection issue as irrelevant after rejecting the Convention-reason claim.
3. Special adjudicator: dismissed the appeal against the Secretary of State’s refusal of asylum and rejected the Article 3 claim.
4. Secretary of State for the Home Department: refused asylum and rejected the Article 3 contention.