Secretary of State for the Home Department v PG

In an Article 3 removal case, risk must be assessed by reference to the foreseeable consequences of removal, the general situation in the receiving country and the person’s circumstances. The stepped assessment first asks whether a group is systematically exposed to ill-treatment and, if not, whether special distinguishing features create a real risk. Country guidance is an important starting point and must be followed unless very strong grounds supported by cogent evidence justify departure. A tribunal departing from guidance must analyse both the new material and the evidence underlying the guidance. It must give reasoned findings on general and individual risk. Where that analysis is missing, remittal to the specialist tribunal may be appropriate.

The Secretary of State appealed against the Upper Tribunal’s decision of 12 June 2023 allowing PG’s appeal against deportation to Sri Lanka on Article 3 grounds. Earlier, the First-tier Tribunal had allowed the appeal, but the Upper Tribunal set that decision aside for inadequate reasons concerning departure from the country guidance in LH & IP (gay men: risk) Sri Lanka CG [2015] UKUT 00073 (IAC). On rehearing, the Upper Tribunal again allowed PG’s appeal, relying on evidence of prosecutions and societal hostility towards gay men. The central issues were whether the Upper Tribunal had lawfully departed from the country guidance and whether it had adequately reasoned its conclusion that PG faced a real risk of Article 3 ill-treatment.

1. Disposition. The appeal was allowed. The Upper Tribunal’s decision could not stand, and the Article 3 issue was remitted to the Upper Tribunal for a further hearing. Lord Justice Jeremy Baker gave the judgment, with Lady Justice Asplin and Lord Justice Bean agreeing.
2. Article 3 assessment. The court applied the approach described in Khasanov & Rakhmanov v Russia (GC) and JK & Others v Sweden (GC). The tribunal must assess the foreseeable consequences of removal in light of the general situation and the individual’s circumstances. It should first consider whether a group is systematically exposed to ill-treatment and whether the applicant belongs to that group. If systematic exposure is not established, further special distinguishing features are required. Risk from non-State actors also requires consideration of whether the receiving State can provide appropriate protection. Internal relocation is relevant only where the person can travel to, enter and settle in the proposed area.
3. Country guidance. The guidance in LH & IP remained the starting point. Under R (SG (Iraq)) v Secretary of State for the Home Department [2012] EWCA Civ 940, guidance must be followed unless very strong grounds supported by cogent evidence justify departure. The tribunal must analyse both the new evidence and the evidence considered in the guidance case. The Upper Tribunal was entitled to consider Galabada, which demonstrated that prosecutions and convictions for same-sex offences had occurred. However, it was wrong to treat the reasoning in LH & IP as dependent solely on the absence of prosecutions. The public circumstances in Galabada also mattered: as explained by Jain v Secretary of State for the Home Department [1999] EWCA Crim 3009, public sexual conduct may be subject to lawful interference regardless of sexual orientation.
4. Errors below. The Upper Tribunal had not sufficiently analysed the country evidence or explained why PG’s general and personal circumstances established a real risk of persecution or degrading treatment. The earlier grant of discretionary leave in 2013 could not substitute for a properly reasoned assessment in light of the later country guidance. The court did not need to resolve the suggested inconsistency between MI v Switzerland and HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31. In any event, absent wholly exceptional circumstances, the Court of Appeal and tribunals must follow Supreme Court authority, applying R (RJM) v Secretary of State for Work and Pensions [2009] 1 AC 311.

• Court of Appeal (Civil Division): appeal allowed; the Upper Tribunal’s decision was set aside and the matter remitted for a further hearing. [2025] EWCA Civ 133.
• Upper Tribunal: on 12 June 2023, allowed PG’s appeal on the basis that deportation would breach Article 3 ECHR.
• Upper Tribunal: on 9 October 2020, allowed the Secretary of State’s appeal against the First-tier Tribunal, set aside its decision for material error of law and retained the rehearing in the Upper Tribunal.
• First-tier Tribunal: on 10 December 2019, allowed PG’s appeal against deportation on Article 3 grounds.