MB v The Secretary of State for the Home Department

Where a person faces a real risk of persecution or serious harm from Jaamat al Muslimeen, the authorities in Trinidad and Tobago are presently unable to provide effective protection. Although the state is willing to detect, prosecute and punish serious crime, systemic failures in policing and criminal justice prevent effective protection in the short or longer term. This extends to witnesses and potential witnesses in serious organised-crime cases, whether or not they are admitted to a witness-protection programme.

The appellant, a national of Trinidad and Tobago, claimed asylum after leaving the country. He had previously been involved with Jaamat al Muslimeen (JAM), had fallen out with it after refusing to perform his assigned role in the 1990 attempted coup, and feared reprisals.

An Immigration Judge accepted that he faced a risk of violence from JAM but dismissed his appeal, finding sufficient state protection. The Court of Appeal later set aside that determination by consent and remitted the case to the Upper Tribunal. It directed the Tribunal to determine only whether the Trinidad and Tobago authorities could provide sufficient protection and operate an effective system to prevent persecution or serious harm by non-state actors. The earlier factual findings were preserved.

1. Appeal allowed. The preserved findings established that the appellant faced a real risk of violence from JAM because of his previous involvement, his withdrawal immediately before the attempted coup, and his subsequent anti-JAM and pro-government stance.
2. The issue was not the state’s willingness to protect its citizens. The Tribunal accepted that the authorities were willing to operate a system for the detection, prosecution and punishment of persecutory or seriously harmful acts. The decisive issue was whether that system could provide effective protection in practice.
3. The country material and expert evidence demonstrated a current crisis in policing and criminal justice. Relevant features included very serious violent crime, low detection and conviction rates, inadequate resources, corruption, weak witness protection, intimidation and the killing of witnesses. Reforms had not yet produced a significant improvement.
4. The inability to protect witnesses and potential witnesses in serious organised-crime proceedings materially reinforced the conclusion that the state could not effectively protect a person facing a comparable risk outside a formal protection scheme. The appellant required protection on permanent return, not merely protection for hours or days.
5. On the preserved facts and the updated evidence, the appellant had a well-founded fear of persecution for actual and/or imputed political opinion. There would be an insufficiency of state protection. He was therefore entitled to refugee status under the 1951 Refugee Convention and protection under Article 3 of the European Convention on Human Rights. The earlier Immigration Judge had materially erred in law.

• Upper Tribunal (Immigration and Asylum Chamber): on remittal, allowed the appeal after finding that effective protection would not be available on return.
• Court of Appeal: on 8 March 2010, by consent, allowed the appeal from the Asylum and Immigration Tribunal, set aside its determination and remitted the case for a second-stage reconsideration limited to sufficiency of protection.
• Asylum and Immigration Tribunal: determination promulgated on 26 March 2009 dismissed the appeal against the respondent’s removal decision of 13 April 2004.