Secretary of State for the Home Department v CP

In an Article 3 claim concerning harm by non-state actors, the assessment includes whether there is a real risk that the individual will be unable to access reasonable state protection. A reasonable possibility of obtaining protection does not answer that question. The practical standard of sufficient protection must be distinguished from the standard of proof governing access to it.

Country guidance provides authoritative factual findings, but its legal analysis does not bind the Upper Tribunal. An incorrect legal standard may be corrected without convening a fresh country guidance panel. Specific evidence of nationwide danger may establish that internal relocation would provide insufficient protection. A tribunal which addresses the issues advanced by the parties cannot ordinarily be criticised on appeal for failing to consider an alternative case which was never put to it.

CP, a Jamaican national, entered a witness protection programme as a child after his mother gave evidence against a gang leader. He subsequently moved to the United Kingdom and committed serious criminal offences. The Secretary of State maintained a decision to deport him and refused his protection and human rights claims. CP accepted that section 72 of the Nationality, Immigration and Asylum Act 2002 excluded him from refugee protection. His appeal concerned only Article 3 of the European Convention on Human Rights.

The Jamaican Ministry of National Security assessed the probability of harm to CP’s family in Jamaica as high. It stated that admission to the witness protection programme depended on further assessments. The First-tier Tribunal dismissed CP’s appeal because there was a real possibility that he would receive protection through the programme.

The Upper Tribunal set aside that decision. It held that the relevant inquiry was whether there was a real risk that CP would be unable to access reasonable protection. It remade the decision and allowed his Article 3 appeal on the agreed factual basis. The Secretary of State appealed, challenging the correction of the country guidance in AB (Protection, criminal gangs, internal relocation) Jamaica CG [2007] UKAIT 00018 and the failure to consider alternative protection through internal relocation.

Held, unanimously dismissing the appeal, that the Upper Tribunal had applied the correct legal standard and was entitled to remake the decision allowing CP’s Article 3 appeal.

1. The central question was whether there was a real risk or reasonable possibility that a person targeted by criminal gangs would be unable to access reasonable protection through the Jamaican witness protection programme or otherwise. The applicable standard was below the balance of probabilities. Even a 10% chance of persecution could satisfy the relevant test. The Upper Tribunal had correctly distinguished the standard of proof governing access to protection from the practical standard of protection required of the receiving state. The latter did not demand guaranteed immunity from harm. MAH (Egypt) v SSHD [2023] EWCA Civ 216 applied (paras 59, 68–71).

2. The headnote and paragraph 155 of AB (Protection, criminal gangs, internal relocation) Jamaica CG [2007] UKAIT 00018 inaccurately expressed the standard of proof. A reasonable likelihood of admission to the programme did not exclude a real risk of inability to obtain protection. The clearest correction was that the Jamaican authorities were generally willing and able to provide effective protection, but a person targeted by a criminal gang would not normally receive effective protection in his home area unless able to avail himself of the programme’s effective protection. The headnote and paragraph 155 should be amended accordingly (para 71).

3. A country guidance determination was authoritative on the evidence and operated as a factual presumption in cases raising similar issues. It was not binding on the Upper Tribunal even as to factual issues, and certainly not on points of law. Paragraph 12.2 of the applicable Practice Directions supported that distinction. The Upper Tribunal could correct the legal analysis without convening a fresh country guidance panel. The Court of Appeal could also determine that country guidance had misstated the law (para 72).

4. The Ministry’s assessment was recent, specific to CP and his family, and concerned danger throughout Jamaica. His criminal record and mental health issues were relevant to admission to the programme. The evidence established the agreed real risk that he would be unable to access it. The Upper Tribunal was entitled to conclude that protection outside the programme would be insufficient. Generic country guidance about internal relocation did not answer the specific nationwide threat assessment (paras 68–70, 73–74).

5. In any event, the Secretary of State had presented neither evidence nor submissions supporting internal relocation before the Upper Tribunal and had accepted its proposed remaking on the existing findings. The principles in Akhtar v SSHD [2024] EWCA Civ 354 and AL v SSHD [2026] EWCA Civ 370 precluded criticism of the tribunal for failing to address an alternative case which had not been advanced. The Secretary of State’s appeal was dismissed (paras 75–76).

• Court of Appeal (Civil Division): Dismissed the Secretary of State’s appeal in [2026] EWCA Civ 892 , leaving the Upper Tribunal’s decision allowing CP’s Article 3 appeal in place.
• Upper Tribunal (Immigration and Asylum Chamber): Allowed CP’s appeal on the standard of proof ground, set aside the First-tier Tribunal’s decision and remade the decision by allowing the appeal on Article 3 grounds. It subsequently refused the Secretary of State permission to appeal; Newey LJ granted permission in the Court of Appeal.
• First-tier Tribunal: Dismissed CP’s appeal against the Secretary of State’s decision of 2 September 2019 maintaining his deportation and refusing his protection and human rights claims.