JCK (Botswana) v Secretary of State for the Home Department

For protection claims within section 32 of the Nationality and Borders Act 2022, decision-makers must address its questions expressly and sequentially. The existence of a Convention characteristic and a claimant’s actual subjective fear are determined on the balance of probabilities. The future risk of persecution, sufficiency of protection and internal relocation are determined on the reasonable-likelihood standard.

Section 32(2)(a) asks whether there is a possible Convention ground. It does not require proof at that stage that the characteristic has caused, or will cause, persecution. Credibility may inform subjective fear, but it is not invariably determinative. An error in addressing the first limb will not be material where the tribunal has separately applied the correct lower standard to the ultimate risk assessment.

The appellant, a Botswanan national, claimed asylum and human-rights protection. He alleged persecution by members of the Herero tribe because he was a born-again Christian and rejected an expected tribal leadership role.

The Secretary of State accepted that he was Herero and Christian, but rejected risk, inadequate state protection and the absence of a reasonable internal-relocation alternative. The First-tier Tribunal dismissed the appeal on 30 August 2023. It rejected the account and found no real risk of persecution.

On appeal, the appellant contended that the First-tier Tribunal had misapplied the differing standards of proof under section 32 of the Nationality and Borders Act 2022, departed from factual concessions, and acted unfairly by relying on unput inconsistencies.

1. Appeal dismissed. The First-tier Tribunal erred in its treatment of section 32(2)(a), but the error was not material because it separately assessed future risk under the correct reasonable-likelihood standard.

2. Section 32 requires five questions to be addressed in sequence. Under section 32(2), the decision-maker must decide on the balance of probabilities whether the claimant has a characteristic capable of engaging a Refugee Convention reason and whether the claimant actually fears persecution for that reason. Under section 32(4) and (5), risk of persecution, protection and internal relocation are objective matters assessed on the lower refugee standard.

3. The question under section 32(2)(a) is whether the claimant has a protected or imputed characteristic which could cause fear. It is not whether the claimant can credibly establish that the characteristic has in fact caused persecution or will do so. Where a Convention characteristic is conceded, it should ordinarily be recorded as established.

4. Section 32(2)(b) concerns actual, subjective fear. Historical credibility may bear on that question, but it is distinct from proving past events and is not invariably determinative. Country material may provide context at both stages, but it must be assessed afresh when evaluating objective risk under the lower standard.

5. There was no procedural unfairness. Credibility was squarely in issue and a represented appellant had the opportunity to address obvious inconsistencies in his own evidence. The Tribunal was not required to put every such matter expressly to him. The documentary affidavits added no independent support, and the challenge to internal relocation was immaterial given the sustainable finding of no risk.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s appeal and upheld the dismissal of his protection and human-rights appeal.
• First-tier Tribunal: on 30 August 2023, dismissed the appeal on protection and human-rights grounds.