Secretary of State for the Home Department v CP [2026] EWCA Civ 892

[2026] EWCA Civ 892Case No CA-2025-001723
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
MR JUSTICE BOURNE AND UPPER TRIBUNAL JUDGE HIRST
U1-2024-002381
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10 July 2026
Before
LORD JUSTICE POPPLEWELLLADY JUSTICE ELISABETH LAINGSIR JULIAN FLAUX
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTAppellantCPRespondent
Zane Malik KC (instructed by The Government Legal Department) for AppellantDavid Chirico KC and Patrick Lewis (instructed by Birnberg Peirce) for RespondentHearing Hearing date : 2 July 2026
APPROVED JUDGMENT

Sir Julian Flaux:

[1]The appellant Secretary of State (to whom I will refer as “the SSHD”) appeals, with permission granted by Newey LJ, against the Decision and Reasons of the Upper Tribunal (Bourne J and UTJ Hirst) dated 11 March 2025 by which they allowed the appeal of the respondent (to whom I will refer as “CP”) against the decision of the First-tier Tribunal (“FTT”) dismissing his appeal against the decision of the SSHD to deport him on 2 September 2019 and refuse his protection and human rights claims.

Background

[2]CP is a Jamaican national born in 1984. His mother was an informer to the police in Jamaica. She witnessed a murder committed by the leader of a gang and gave evidence at the trial which led to his conviction and imprisonment. In 1997 she entered the witness protection programme in Jamaica together with CP, another son and a grandson. She came to the United Kingdom in 1999. CP remained in Jamaica still under the care of the witness protection programme. He came to the United Kingdom on 10 May 2001 and was granted leave to enter as a visitor until 9 June 2001. He sought and was granted leave to remain as a student until 15 September 2002. He did not make any subsequent in-time application and has never had further leave to remain.[3]On 2 June 2006 CP claimed asylum. Before a decision was made on that claim, he committed an offence of unlawful wounding on 7 December 2007 which involved stabbing his then partner in the back with a knife, to which he pleaded guilty at trial in 2009. He also committed three offences of burglary in September 2007, February 2008 and March 2008. For all those offences he was sentenced in July 2009 to a total of four years and eight months imprisonment.[4]On 21 January 2010 the SSHD issued CP with a notice of liability to deportation in light of his offending and invited submissions. On 30 November 2010, he was issued with a further notice under section 72 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), stating that his presence in the United Kingdom constituted a danger to thecommunity. He had an asylum interview on 22 December 2010. Whilst that claim to asylum was being considered, he committed an extremely serious offence of vaginal and oral rape of a young woman. On 10 January 2013, he was convicted of two counts of rape after a trial at Wood Green Crown Court and received an extended sentence of 14 years, comprising a 9-year custodial term with an extended licence period of 5 years. Both conviction and sentence were upheld by the Court of Appeal Criminal Division in March 2014. Following release on licence and immigration bail in mid-2022, he was recalled to prison on 25 November 2022. We were informed at the hearing of the appeal that he is currently still in prison.[5]The SSHD served a notice of decision to deport CP in May 2018 and signed the deportation order in September 2018. A further notice under section 72 of 2002 Act was issued by the SSHD in June 2019 stating that his presence in the United Kingdom constituted a danger to the community. Ultimately, his protection and human rights claims were refusd on 2 September 2019 by the SSHD who maintained the decision to deport him. In that decision, the SSHD essentially made three points:(i) that it was unlikely the murderer’s gang in Jamaica would seek to target him some 22 years after the trial;(ii) that he would receive sufficiency of protection from the authorities in Jamaica; and(iii) that it would be possible for him to relocate in Jamaica to somewhere other than Kingston and Westmoreland.[6]His appeal against that decision to the FTT was heard on 21 November 2023. Before the FTT, CP conceded that he was excluded from protection under the Refugee Convention because he could not rebut the presumption in section 72 of the 2002 Act. He also did not seek to argue that his removal would breach Article 8 of the European Convention on Human Rights (“ECHR”). The sole issue before the FTT was whether his removal would breach Article 3 of the ECHR.[7]During the proceedings before the FTT the SSHD contacted the Jamaican Ministry of National Security in relation to the witness protection programme there. In a letter from the Ministry of 13 September 2023, there was an answer to specific questions posed by SSHD as follows (questions in bold): “Firstly, please could you advise on the authenticity of the documentation? The documents are authentic; original was seen on her file. Secondly, please could you advise whether a relevant person, such as [the Appellant], could be accepted back onto the Witness Protection Programme, if they had previously abandoned such protection? Based on the most recent threat assessment, the probability of harm against the family in Jamaica is HIGH, there is also the likelihood of psychological trauma if he returns to Jamaica. There is no guarantee that he will be placed on the Justice Protection Programme if he returns as there are various assessments that will have to be done by various state agencies before such determination can be made. Thirdly, please could advise whether there a discretionary procedure that may be followed by the Jamaican authorities in accepting a relevant person back onto the Witness Protection Programme? Accepting him on the programme is based on the assessments as outlined above. Fourthly, please advise whether either of the above changes if the relevant person was under 18 when they were first admitted onto the Witness Protection Programme? There is no change in the procedure. Finally, does any of the above change if the relevant person was under 18 and they were first admitted onto the WPP before 2001? There is no change.[8]CP took no steps to seek readmission to the witness protection programme in Jamaica. He had commissioned an expert report from Hilaire Sobers, predating the correspondence with the Ministry. Mr Sobers thought that CP would not qualify for witness protection in Jamaica but was not asked to comment on the Ministry’s letter of 13 September 2023.

The decisions of the FTT and the Upper Tribunal

[9]Having set out the facts, the FTT addressed the law from [20] of the Decision onwards. At [21] it set out the legal test for breach of Article 3 in the removal context in Chahal v United Kingdom (1997) 23 EHRR 413 at [74] which is whether: “substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country”.[10]The FTT then referred to the governing Country Guidance in AB (Protection, criminal gangs, internal relocation) Jamaica CG [2007] UKAIT 00018. It referred to the headnote which says:
“The authorities in Jamaica are in general willing and able to provide effective protection. However, unless reasonably likely to be admitted into the Witness Protection programme, a person targeted by a criminal gang will not normally receive effective protection in his home area. Whether such a person will be able to achieve protection by relocating will depend on his particular circumstances, but the evidence does not support the view that internal relocation is an unsafe or unreasonable option in Jamaica in general: it is a matter for determination on the facts of each individual case.”
[11]The FTT also cited [155] of the Determination and Reasons of the Asylum and Immigration Tribunal (“AIT”) in AB:
“Nevertheless, we recognise that apart from the safety-net of this programme, there does appear to be a protection gap. For persons targeted by gangs who are not reasonably likely to be admitted into [the Witness Protection] programme, we think the evidence adduced by Mr Sobers and others strongly points to them not being able to secure protection from the authorities through the range of normal protective functions carried out by the authorities - unless they can internally relocate without being at real risk of detection by their persecutors.”
[12]The FTT then noted at [24] that Mr Lewis on behalf of CP submitted that to succeed in his appeal, what was required was a reasonable likelihood of not being admitted onto the witness protection programme, whereas Mr Mavrantonis for the SSHD submitted that what was required was a real likelihood that CP would be able to join the programme.[13]The FTT then discussed the distinction between the different approaches in a somewhat metaphysical fashion, concluding at [30]:
“My conclusion on this in the present case is that the Respondent’s position is correct. The only question is whether it is reasonably likely that the Appellant would be admitted onto the witness protection programme. This is because both the headnote and paragraph 155 of AB frame the question as whether it is reasonably likely that a person will be admitted on to the witness protection programme. Paragraph 155 says, consistently with the headnote, that the alternative to that case is it being not reasonably likely that the person would be admitted onto the witness protection programme. The Appellant conflates that statement with it being reasonably likely that the person would not be admitted onto the witness protection programme. That misstates the test and in doing so wrongly increases the standard for sufficiency of protection from being that set out in Horvath v Secretary of State for the Home Department [2000] UKHL 37 as: the standard of protection to be applied is not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard which takes account of the duty which the state owes its nationals…It is axiomatic that we live in an imperfect world. Certain levels of ill-treatment may still appear even if steps to prevent this are taken by the state…”” the standard of protection to be applied is not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard which takes account of the duty which the state owes its nationals…It is axiomatic that we live in an imperfect world. Certain levels of ill-treatment may still appear even if steps to prevent this are taken by the state…””
[14]The FTT then noted that this passage was explicitly applied in AB and noted that CP argued in effect that the real risk must be eliminated for sufficiency of protection to apply, which would be wrong.[15]The FTT then turned to the application of the legal principles to the case before it, noting at [33] that Mr Lewis submitted that CP had nevertheless shown that it was not reasonably likely that he would be admitted onto the witness protection programme. It also noted his submission that under the relevant Jamaican statute, relevant factors in deciding whether to include someone in the programme were that person’s criminal record, particularly for crimes of violence and, in effect, mental health issues. It also noted his submission that in practice that record and mental health issues meant that CP was unlikely to be admitted onto the programme. The FTT did not accept that submission.[16]The FTT referred to the Ministry’s statement that there was no guarantee that CP would be placed on the programme if he returned, as there were various assessments that would have to be done by various state agencies before such a determination could be made. The FTT considered that the plain meaning of this was that there was a real possibility that CP would receive protection. If there were not, the authorities could have said that he would not be accepted. The FTT found that it was clear that the Jamaican authorities were respecting and accepting their duty to him as their citizen. They were in a considerably better position than the tribunal to assess the threat to him in Jamaica. The FTT referred to the suggestion that CP had moved to the United Kingdom with the assistance of the witness protection programme because they could not keep him safe. The FTT recognised and did not reject the claim that the witness protection programme had paid for CP to come to the United Kingdom but did not consider that there was sufficient evidence to support the suggestion that it was because they could not keep him safe in Jamaica and said that, overall, it did not accept that the Jamaican authorities could not protect CP.[17]The FTT said at [37] that CP had a strong incentive not to seek assistance from the Jamaican witness protection programme whilst in the United Kingdom because, if it were to be provided, his appeal would be hopeless. It concluded that the deportation of CP would not breach his Article 3 rights.[18]CP appealed that decision on three grounds:(1) that the FTT had misdirected itself as to the correct standard of proof;(2) that in concluding that there was a real possibility that CP could access the witness protection programme, the FTT had failed to consider his serious criminal record and/or his mental health issues which were statutory factors to be considered by the programme; and(3) the FTT also failed to have regard to the evidence that in any event the programme had previously been unable to keep CP safe as a child.[19]On 28 June 2024, the Upper Tribunal granted CP permission to appeal on all grounds. The SSHD had the opportunity to then file a response under rule 24 of the Tribunal Procedure (Upper Tribunal) Rules (“the Upper Tribunal Rules”) but did not take it. The case was originally listed for hearing on 12 December 2024. That day the SSHD noted that, through an administrative error, she had obtained the hearing bundle late. She sought and obtained an adjournment in order to prepare and file a skeleton argument. The case was relisted for hearing on 12 February 2025, but the SSHD did not file a skeleton argument. At the hearing the case for the SSHD was presented by Mr Tufan, a Senior Home Office Presenting Officer.[20]In the Decision and Reasons dated 18 March 2025, the Upper Tribunal stated at [2] that the central issue in the appeal was the standard of proof to be applied in protection or Article 3 cases involving the risk of harm by non-state actors. They said:
“For the reasons set out below, we have concluded that the First-tier Tribunal misdirected itself as to the standard of proof and erred in dismissing the Appellant’s appeal, and we have set aside the decision.”
[21]The Upper Tribunal continued at [3]-[4]:
“3. As it was common ground both before the First-tier Tribunal and before us that the Appellant faced a real risk of harm on return and that there was a real risk that he would not be able to access the Jamaican witness protection programme, we have allowed the appeal. 4. In particular, we have concluded: a. Paragraph 155 and the second sentence of the headnote in AB(Protection, criminal gangs, internal relocation) Jamaica CG [2007] UKAIT 00018 (‘AB’) should not be interpreted literally, but instead read as if the words “reasonably likely to be” were omitted. That reading is consistent with the lower standard of proof applicable to protection and Article 3 cases. b. The correct question, in a case to which the country guidance in AB applies, is whether there is a real risk or reasonable possibility that an individual targeted by criminal gangs will not be able to access reasonable protection through the Jamaican witness protection programme or otherwise. c. The country guidance otherwise set out in AB remains applicable.”
[22]The Upper Tribunal then set out the factual background and the reasoning of the FTT. They also set out the grounds of appeal before turning to Ground 1 which they described at [18] as the crux of the appeal, stating:
“The central question for the Upper Tribunal is whether AB read literally, mis-states the standard of proof to be applied to refugee and Article 3 cases, and whether the First-tier Tribunal misdirected itself in adopting that literal interpretation.”
[23]At [19] they noted that it was well-established in refugee and Article 3 cases that the applicable standard of proof, sometimes referred to as ‘real risk’ or ‘reasonable likelihood’ is significantly below the civil standard of balance of probabilities. They noted that even a 10% chance that the risk will occur may suffice, citing MAH (Egypt) v SSHD [2023] EWCA Civ 216 at [52] and the earlier authorities cited there. They also noted that the lower standard of proof applies both to the assessment of past factual events and the prospective assessment of risk.[24]At [20] the Upper Tribunal stated that in a protection or Article 3 case where the risk is of harm by non-state actors, the assessment of risk incorporates consideration of whether the state is able to provide sufficient protection against such harm. It is required to provide such protection to the standard set out in Horvath v SSHD [2000] UKHL 37, that is to provide “reasonable” protection. They noted that the importance of distinguishing between the risk of harm and the risk of Article 3 ill-treatment was emphasised by the House of Lords in R (Bagdanavicius) v SSHD [2005] 2 AC 668 at [24] which they quoted.[25]At [22] they said that the question of whether return would breach Article 3 therefore requires consideration of both(i) whether there is a risk of harm and(ii) in non-state actor cases whether the state will fail to provide reasonable protection from such harm. The same lower standard of proof applies to both. At [23] they noted that this approach was unchanged by section 32(4) of the Nationality and Borders Act 2022 which makes it clear that in a protection case, the ‘reasonable likelihood’ test applies both to the risk of persecution and to the lack of sufficient protection within the meaning of section 34.[26]The Upper Tribunal went on to say at [24]:
“On a literal reading, the headnote and paragraph 155 of AB indicate that where it can be shown that it is ‘reasonably likely’ that an individual targeted by a criminal gang will be admitted into the Jamaican witness protection programme, then he will receive effective protection and hence not be at risk on return. As Mr Lewis for the Appellant pointed out, a literal reading of ABwould therefore mean that even if there were only a 10% probability that an individual would be admitted to the witness protection programme, and a corresponding 90% probability that he would not, he could not succeed in a protection or Article 3 claim. Mr Lewis submitted that a literal interpretation of ABsets the standard of proof impermissibly high in protection/Article 3 cases and is liable to lead to perverse outcomes in the individual case. We agree.”
[27]The Upper Tribunal said at [25] that on behalf of the SSHD, Mr Tufan urged them not to depart from AB as country guidance, but they did not consider that was the effect of their decision. They considered that looking at the judgment in AB as a whole, and [151] to [155] in particular, the AIT was intending to draw a distinction between individuals who would be admitted to the witness protection programme, whose protection would thereby be secured, and individuals who could not access the programme, in respect of whom the evidence strongly indicated that they could not secure protection unless able to relocate internally without detection by their persecutors.[28]The Upper Tribunal said that although the wording in the second sentence of the headnote mirrors [155] there is no indication that that point was the subject of argument before the AIT in AB. It was not apparent that the AIT was intending to impose a higher standard of proof to be applied in protection/Article 3 cases. The Upper Tribunal in the present case said this was a purely legal issue, not confined to the factual country situation in Jamaica and one which did not appear to have been the subject of argument, so it did not form part of the ratio of AB. Even if that were not the case, a literal reading of [155] and the headnote would be entirely contrary to long-established authority.[29]The Upper Tribunal thus concluded on Ground 1 at [26]:
“We therefore conclude: a. Paragraph 155 and the second sentence of the headnote in AB should not be interpreted literally, but instead read as if the words “reasonably likely to be” were omitted. That reading is consistent with the lower standard of proof applicable to protection and Article 3 cases. b. The correct question for the First-tier Tribunal, in a case to which the country guidance in AB applies, is whether there is a real risk or reasonable possibility that an individual targeted by criminal gangs will not be able to access reasonable state protection through the Jamaican witness protection programme or otherwise. c. The country guidance otherwise set out in AB remains applicable.”
[30]In the section of the Decision headed “Application to this appeal” the Upper Tribunal said at [27] to [29]:
“27. In this appeal it was not in dispute that there was a real risk of harm to the Appellant from non-state actors, namely criminal gangs. Nor was it in dispute that the Jamaican witness protection programme would, if the Appellant was admitted to it, provide Horvath-standard protection. The question for the First-tier Tribunal, applying the lower standard of proof, was therefore whether there was a ‘real risk’ or reasonable likelihood that the Jamaican state would fail to provide reasonable protection against the risk of harm; that is, a real risk that the Appellant would not be able to access the programme. 28. At paragraph 30 of the determination, the First-tier Tribunal concluded that, following a literal reading of the headnote and paragraph 155 of AB, the question was “whether it is reasonably likely that the Appellant would be admitted onto the witness protection programme”
. The Tribunal rejected the Appellant’s submissions to the contrary as wrongly increasing the Horvath standard for sufficiency of protection. 29. We accept Mr Lewis’ submission on behalf of the Appellant that the First-tier Tribunal in this case erred by conflating the standard of proof to be applied to the Article 3 claim with the standard of protection to be provided by the state, and by applying the wrong standard of proof to the Appellant’s ability to access the witness protection programme. On the accepted facts that error was material to the First-tier Tribunal’s decision.”[31]The Upper Tribunal then considered Grounds 2 and 3 of the appeal. They referred to Mr Lewis’ submission about the relevant factors of criminal record and mental health issues under the Jamaican statute used in evaluating the individual’s suitability for the programme. It was unclear whether those factors in CP’s case had been brought to the attention of the Jamaican authorities prior to the response of 13 September 2023, but they created a strong likelihood that CP would not in fact be admitted to the programme. Mr Lewis submitted that the failure to address relevant factors and evidence meant that the FTT’s decision was flawed and required redetermination.[32]At [31] the Upper Tribunal noted that Mr Tufan accepted that if CP succeeded on Ground 1, Grounds 2 and 3 would be ‘swept away’ and the decision would require remaking. However, on the evidence, he submitted there was sufficient to support the judge’s conclusion that CP would obtain protection, so that any error in relation to the evidence was irrelevant.[33]At [32] the Upper Tribunal said that they accepted CP’s submission that the FTT erred by failing to consider the Jamaican statutory factors as those were relevant to the availability and likelihood of state protection. It was less clear that the FTT erred in failing to consider apparent difficulties when CP was previously in the programme given that it was common ground that the programme would provide Horvath-standard protection if available on return. However, given their conclusion on Ground 1 it was not necessary for them to reach a decision on Grounds 2 and 3.[34]Finally, under the heading “Disposal” the Upper Tribunal said at [33] to [35]:
“33 Having found a material error of law on Ground 1, we indicated to the parties our provisional view that the Upper Tribunal could redecide the appeal on the facts as found below, and that given it was common ground that there was a real risk the Appellant would not be admitted onto the witness protection programme on return, the appeal would fall to be allowed. 34. Neither party disagreed with the proposed disposal and Mr Tufan declined an invitation to make further submissions as to whether there was a real risk on return. 35. We therefore set aside the decision of the First-tier Tribunal and remake the decision, allowing the appeal on Article 3 ECHR grounds.”
[35]The Upper Tribunal issued a further Decision on 11 June 2025 refusing permission to appeal to this Court. On 11 November 2025, Newey LJ granted permission to appeal saying that the SSHD’s arguments had sufficient substance for the appeal to have a real prospect of success and that the appeal raised an important point as to the correctness and application of the country guidance in AB.

The grounds of appeal

[36]The SSHD pursues two grounds of appeal before this Court:(1) That the Upper Tribunal impermissibly re-wrote the country guidance in AB and erred in departing from it. The FTT made no error of law, having applied the correct burden of proof and faithfully followed AB. It was not open to the Upper Tribunal to reverse the FTT’s decision;(2) In substituting a fresh decision allowing the underlying appeal, the Upper Tribunal misdirected itself in assuming the appeal had to succeed because there was a real risk that CP would not be admitted to the programme. As a result, the Upper Tribunal failed to consider material issues and engage with relevant evidence.

The parties’ submissions

[37]On behalf of the SSHD, Mr Zane Malik KC submitted that it was procedurally improper for the Upper Tribunal in this case to seek to re-write the country guidance in AB. The FTT had not made any error of law in applying AB. He submitted that [155] of the Determination in AB was not altering the approach to the standard of proof. It was simply adopting an approach that required it to consider all the circumstances of the case. As he put it in his skeleton argument, the Jamaican state will protect those who are reasonably likely to be admitted to the programme. However, if there is an individual who is at risk from criminal gangs and has no real prospect of admission into the programme, they may qualify for protection in the United Kingdom.[38]He submitted that this was entirely consistent with the decisions of the House of Lords in Horvath v SSHD [2000] UKHL 37; [2001] AC 489 and Bagdanavicius v SSHD [2005] UKHL 38; [2005] 2 AC 668 which were both carefully considered and applied by the AIT in AB. Mr Malik relied upon passages in the speeches of Lord Hope of Craighead and Lord Clyde in Horvath. It was common ground that although that case concerned the Refugee Convention, the analysis is equally applicable to Article 3 of the ECHR. At 499G-500A, Lord Hope said:
“To sum up therefore on this issue, I consider that the obligation to afford refugee status arises only if the person's own state is unable or unwilling to discharge its own duty to protect its own nationals. I think that it follows that, in order to satisfy the fear test in a non-state agent case, the applicant for refugee status must show that the persecution which he fears consist of acts of violence or ill-treatment against which the state is unable or unwilling to provide protection. The applicant may have a well-founded fear of threats to his life due to famine or civil war or of isolated acts of violence or ill-treatment for a Convention reason which may be perpetrated against him. But the risk, however severe, and the fear, however well-founded, do not entitle him to the status of a refugee.”
[39]Mr Malik also referred to a passage later in the speech at 500F-H where Lord Hope emphasised that no state can provide complete protection:
“The primary duty to provide the protection lies with the home state. It is its duty to establish and to operate a system of protection against the persecution of its own nationals. If that system is lacking the protection of the international community is available as a substitute. But the application of the surrogacy principle rests upon the assumption that, just as the substitute cannot achieve complete protection against isolated and random attacks, so also complete protection against such attacks is not to be expected of the home state. The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard, which takes proper account of the duty which the state owes to all its own nationals. As Ward L.J. said at p. 44G, under reference to Professor Hathaway's observation in his book at p.105, it is axiomatic that we live in an imperfect world. Certain levels of ill-treatment may still occur even if steps to prevent this are taken by the state to which we look for our protection.”
[40]The same point was made by Lord Clyde at 510F:
“The use of words like "sufficiency" or "effectiveness", both of which may be seen as relative, does not provide a precise solution. Certainly no one would be entitled to an absolutely guaranteed immunity. That would be beyond any realistic practical expectation.”
[41]Mr Malik drew particular attention to [37] of the Decision of the FTT making the point that CP had a strong incentive not to seek the protection of the Jamaican witness protection programme whilst he was in the United Kingdom. When pressed on this point by the Court, he submitted that CP had to test whether he would be admitted to the programme by applying from the United Kingdom. On further questioning by the Court as to whether this was possible, he told us on instructions that there was a framework in place for making an application to the Jamaican authorities from the United Kingdom.[42]He submitted that it was perfectly legitimate for the United Kingdom to return CP to Jamaica to be assessed by the Jamaican authorities. It simply could not be the case that unless he was admitted onto the Jamaican witness protection programme whilst in the United Kingdom, his appeal should be allowed. Mr Malik was unable to say, in answer to a question from Elisabeth Laing LJ, that CP would be sufficiently protected by the Jamaican authorities whilst his application for admission onto the programme was being considered by them. He reiterated the points made in the passages in the speeches in Horvath he had relied upon to the effect that we live in an imperfect world and that there cannot be complete guaranteed protection.[43]In relation to AB, Mr Malik relied upon three passages in the headnote which he submitted reflected that the analysis of the law by the AIT was correct. First, the words “unless reasonably likely to be” which he submitted reflect the analysis in Horvath. If they were omitted, that would elevate the test to one of guaranteed protection. Second, even if it were concluded that CP would not be admitted onto the programme, the word “normally” demonstrated that he was not at risk by default. Third, he emphasised: “effective protection in his home area”, in other words it was not being said that there could not be effective protection in Jamaica as a whole. This was picked up in the second paragraph of the headnote, that the evidence did not support the view that internal relocation was an unsafe or unreasonable option in Jamaica in general.[44]He noted that the AIT had referred specifically to Horvath and Bagdanavicius at [26] of the determination. He also emphasised [150] where the AIT found that the evidence did not bear out that there was a general insufficiency of state protection in Jamaica. In the section headed “Protection against criminal gang violence” he noted what the AIT said about the programme at [153], that despite shortcomings, its record was extremely impressive. As Popplewell LJ pointed out in argument, this was an indication that if you were in the programme, there was a sufficiency of protection, but at [155] the AIT had said there was a “protection gap”, in other words if an individual was not in the programme, there was not sufficiency of protection subject to internal relocation “without being at real risk of detection by [his] persecutors”.[45]Mr Malik was particularly concerned to emphasise that, if the Upper Tribunal considered that the analysis of the law in the Country Guidance in AB was incorrect, the course which they had taken, of, in effect, amending the Country Guidance was impermissible and beyond their jurisdiction. In his skeleton argument he referred the Court to Paragraphs 12.2 and 12.3 of the Senior President of Tribunals Practice Directions for the Immigration and Asylum Chamber of the First-tier Tribunal and the Upper Tribunal (as amended in December 2018). In his oral submissions, he referred the Court to paragraph 10.1 of Senior President of Tribunals Practice Directions for the Immigration and Asylum Chamber of the First-tier Tribunal of 1 November 2024. However, as the text in bold at the end of that Practice Direction makes clear, it only applied to the FTT, not the Upper Tribunal. Accordingly, the text applicable to the Upper Tribunal in the present case is that in paragraphs 12.2 and 12.3 of the December 2018 Practice Direction, although ultimately the difference in wording of the two texts may not matter, given that the Upper Tribunal in the present case was concerned only with whether the AIT in AB had correctly stated the law.[46]Paragraphs 12.2 and 12.4 provide as follows:
“12.2 A reported determination of the Tribunal, the AIT or the IAT bearing the letters “CG” shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal, the AIT or the IAT that determine the appeal. As a result, unless it has been expressly superseded or replaced by any later “CG” determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal: (a) relates to the country guidance issue in question; and (b) depends upon the same or similar evidence. 12.4 Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for appeal on a point of law.”
(emphasis in skeleton argument)[47]It was these provisions which were the basis for Mr Malik’s submission that the course adopted by the Upper Tribunal was procedurally improper and that what they should have done was to convene a fresh Country Guidance Upper Tribunalto consider whether the law was correctly stated in AB. He relied upon the decision of the Court of Appeal in SG (Iraq) v SSHD [2012] EWCA Civ 940; [2013] 1 WLR 41 where Stanley Burnton LJ said at [47]:
“…decision-makers and tribunal judges are required to take Country Guidance determinations into account, and to follow them unless very strong grounds supported by cogent evidence, are adduced justifying their not doing so.”
[48]During the course of argument, Popplewell LJ asked Mr Malik whether there was anything wrong with (5) of the Decision of the Upper Tribunal refusing permission to appeal. He accepted that there was nothing wrong with this paragraph which read:
“First, §§3-4 of the grounds of appeal mischaracterise the nature of country guidance caselaw. As the Upper Tribunal made clear in Abdi Roba v SSHD [2022] UKUT 1 (IAC) at §§11-27, country guidance cases operate as an exception to the principle that findings of fact in one case will not in general bind a subsequent tribunal. The giving of country guidance is intended to ensure consistency of decision-making in cases where the same factual issues arise. As §12.2 of the relevant Practice Direction1 makes clear, a country guidance determination is to be treated as an authoritative finding on the evidence; it operates as a “presumption of fact” (Roba at §24) which is applicable in other cases raising similar factual issues. Country guidance is not however binding on the Upper Tribunal even as to factual issues, and it is certainly not binding authority on points of law. Where a legal interpretation in country guidance is at odds with binding legal authority of the senior courts, the Upper Tribunal must give effect to the latter.”
[49]In a supplementary skeleton argument Mr Malik informed the Court that in another case, EP, a Country Guidance panel was convened to give fresh country guidance on Jamaica, including whether the Country Guidance given in AB should stand. That Upper Tribunal heard the appeal of EP in February 2026. It was informed of the present appeal and has stayed the promulgation of any fresh Country Guidance pending the outcome of this appeal. In his oral submissions, Mr Malik said that in EP the SSHD was also maintaining that the analysis of the law in AB should stand. However, the SSHD said in that case that if the headnote in AB had to be changed, it should read:
“The authorities in Jamaica are in general willing and able to provide effective protection. However, a person targeted by a criminal gang will not normally receive effective protection in his home area unless able to avail himself of the effective protection of the Witness Protection Programme.”
[50]In relation to the second ground of appeal, Mr Malik relied on the second and third passages in the headnote of AB referred to at [43] above:
“normally” and “effective protection in his home area”
. He referred to the section of the Determination in AB headed “Internal relocation” and in particular [164] and [166]:
“164. What, however, would be the position of a person who would not be admitted to the Witness Protection programme? Here the first question to be asked is whether it is reasonably likely they will be traced and targeted in their new place of residence. As already indicated, we do not consider that, except in high profile cases, such persons would face a real risk of being detected by criminal gangs based within the KMA or other inner-city urban areas. But each case will turn on its own facts. 166. We would re-emphasise at this point that what we have just delineated about insufficiency of protection for those unlikely to be accepted into the Witness Protection Programme, only becomes germane in a case where it has first been established that a criminal gang’s behaviour poses a real and serious threat to an individual. In order to show that such a threat exists, it will not suffice to show that a criminal gang dislikes an individual or even that it has made threats of violence: it has to be shown that the gang has a real intent to inflict the threatened serious harm and to carry out its threats. We shall return to the importance of these considerations when we turn to examine the appellant's particular circumstances.”
[51]Mr Malik submitted, on the basis of these passages, that the fact that a person would not be admitted to the witness protection programme was not determinative. Even in such a case the tribunal was required to consider whether it was reasonably likely that the individual would be traced and targeted in the proposed place of relocation. The Upper Tribunal had erred in giving no consideration to this issue. It had also failed to consider whether the gang in question had a real intention to inflict serious harm on CP.[52]In relation to these criticisms, the Court pointed out that the letter from the Jamaican Ministry of 13 September 2023 quoted at [7] above had said: “Based on the most recent threat assessment, the probability of harm against the family in Jamaica is HIGH” (my emphasis) From this it was clear there had been a specific assessment of the risk to CP and his family much more recently than AB. Mr Malik KC also sought to rely on the Country Policy and Information Note (“CPIN”) on fear of organised criminal groups in Jamaica, which was updated to 22 May 2024. This essentially accorded with the assessment in AB. However, as the Court pointed out, both AB and the CPIN were generic whereas the letter from the Ministry was specific to CP and his family.[53]Mr Malik maintained that the Upper Tribunal had erred in not considering the question of internal relocation. However, as the Court pointed out, Mr Tufan, the Senior Presenting Officer, had not made any submissions to the Upper Tribunal about an alternative case concerning the availability of internal relocation when the Upper Tribunal had indicated to the parties their provisional view that they could redecide the appeal on the facts found by the FTT. As Popplewell LJ put to Mr Malik KC, the fact that the letter from the Ministry said that the probability of harm was high “in Jamaica” was no doubt why Mr Tufan felt unable to make further submissions.[54]Mr Malik relied upon the recent decision of this Court in SSHD v OSB [2026] EWCA Civ 647 at [28], referring to the judgment of Haddon-Cave LJ in Singh v Dass [2019] EWCA Civ 360, to submit that even if the internal relocation point was not run by the SSHD in the Upper Tribunal, it was before the FTT, albeit the FTT did not deal with it since it would have made no difference to its decision. He submitted that it was open to the SSHD to raise the point now before this Court and that we should remit the matter to the FTT to reconsider the appeal afresh.[55]On behalf of CP, Mr David Chirico KC submitted that by the time of the hearing before the Upper Tribunal, there was common ground between the parties on three significant issues:(1) that CP faced a real risk of harm on return to Jamaica from criminal gangs ([3] of the Decision of the Upper Tribunal);(2) that if CP were admitted to the witness protection programme, there would be sufficiency of protection ([27] of the Decision of the Upper Tribunal);(3) that there was a real risk CP would not be able to access the witness protection programme ([3] of the Decision of the Upper Tribunal).[56]He submitted that it was important to have these issues of common ground in mind, since there was no application by the SSHD to depart from the common ground. The point made by Mr Malik about whether CP could apply from the United Kingdom for admission onto the programme was not relevant because it was common ground that there was a real risk CP would not be able to access the programme. There was no evidential basis for saying that CP could have done something to improve his prospects which he has not done.[57]In relation to the law, Mr Chirico noted that it was elementary that the standard of proof in Article 3 claims was a “real risk” or “reasonable likelihood” of the individual being subjected to treatment contrary to Article 3 in his home country. This was the same standard as applies under the Refugee Convention. He relied upon R v SSHD ex parte Sivakumaran [1988] AC 958 at 994F where Lord Keith of Kinkel said:
“In my opinion the requirement that an applicant's fear of persecution should be well-founded means that there has to be demonstrated a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country.”
[58]This was now reflected in sections 32 and 34 of Nationality and Borders Act 2022 which provide, so far as relevant:
“32(4) The decision-maker must determine whether there is a reasonable likelihood that, if the asylum seeker were returned to their country of nationality (or in a case where they do not have a nationality, the country of their former habitual residence)— (a) they would be persecuted as a result of the characteristic mentioned in subsection (2)(a), and (b) they would not be protected as mentioned in section 34. 34(2) An asylum seeker is to be taken to be able to avail themselves of protection from persecution if— (a) the State…takes reasonable steps to prevent the persecution by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution, and (b) the asylum seeker is able to access the protection.” (a) they would be persecuted as a result of the characteristic mentioned in subsection (2)(a), and (b) they would not be protected as mentioned in section 34. (a) the State…takes reasonable steps to prevent the persecution by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution, and (b) the asylum seeker is able to access the protection.”
[59]The Act does not apply in the present case because CP claimed asylum before it came into force and his claim relies on Article 3 and not the Refugee Convention (since he is disentitled to refugee status due to his criminal offending). However, these sections effectively codify the existing law in relation to the Refugee Convention and it was not suggested that the law in relation to Article 3 was any different. As Mr Chirico pointed out, section 32 deals with the real risk or reasonable likelihood of harm and section 34(2)(a) deals with protection, reflecting Horvath, that there is an effective system of protection and (b) is the requirement of an ability to access it.[60]In relation to Horvath Mr Chirico pointed out that in the House of Lords it was recognised that, in the case of persecution by non-state agents, there skinheads, the failure of the state to provide protection against the persecution was an essential element: per Lord Hope at 497H and 499H. In relation to the issue as to sufficiency of protection in the individual’s home state, the House of Lords held that the standard to be applied was a practical one, not one which would eliminate all risk and amount to a guarantee of protection, as the appellant had argued: per Lord Hope at 500G-H. In that case the protection was the entire Slovak justice system.[61]Mr Chirico also referred to Bagdanavicius where at [24], Lord Brown of Eaton-under-Heywood said:
“…any harm inflicted by non-state agents will not constitute article 3 ill-treatment unless in addition the state has failed to provide reasonable protection. If someone is beaten up and seriously injured by a criminal gang, the member state will not be in breach of article 3 unless it has failed in its positive duty to provide reasonable protection against such criminal acts.”
[62]Turning to AB itself, Mr Chirico submitted that when the AIT in [155] said “not reasonably likely to be admitted into [the] programme” it meant “reasonably likely not to be admitted”. The literal meaning of the headnote and the paragraph would mean, as the Upper Tribunal in the present case observed at [24], that if there were a 90% chance that an individual would not receive sufficient protection, and only a 10% chance that they would, their Article 3 claim would fall to be dismissed. This is not the law.[63]In relation to ground 2 of the SSHD’s grounds of appeal, Mr Chirico submitted that there had been a series of opportunities for the SSHD to advance Respondent’s Notice points. She could have availed herself of rule 24 of the Upper Tribunal Rules or asked for permission to file further evidence. The hearing in the Upper tribunal had been adjourned at her request in order to file a skeleton argument, which she had then not done. There was then a month between the hearing at which the Upper Tribunal had indicated its preliminary view that it could redecide the appeal and the promulgation of the Decision, during which time the SSHD could have challenged the preliminary view or she could have applied to set aside the Decision for procedural irregularity under rule 43 of the Upper Tribunal Rules.[64]Mr Chirico’s primary submission was that the SSHD had made concessions before the Upper Tribunal as recorded in [33] and [34] of the Decision so that it was not open to her before this Court to raise the issue of the possibility of internal relocation. Even if there were no concessions made, Mr Tufan had had the opportunity to identify the principal controversial issues and, as recorded at [34], had declined to make further submissions.[65]Mr Chirico relied upon two recent decisions of this Court. First, Akhtar v SSHD [2024] EWCA Civ 354 where at [82] Males LJ said:
“It is not a legitimate ground of appeal to this court that the UT has failed to take matters into account when it was never asked to do so and when it has addressed fully the submissions which were made to it.”
[66]Second, AL v SSHD [2026] EWCA Civ 370 where at [80] Elisabeth Laing LJ said: “The Secretary of State's appeal was based on a misconception that if a party is silent about, or does not expressly concede a point, a judge was under a duty to consider all the points which might favour her, ‘even if not expressly relied on’. It required the judge to search for a point and to consider a point which, while obvious, was ‘not so obvious that it was raised by a party at the hearing’. The purpose of the new appeal procedure was to ensure that judges were not required to ‘trawl through the papers’ in order to work out which issues they had to consider. Their job is to ‘deal with the issues that the parties have identified. It is trite that the hearing before the FtT is not a lap in the warm-up for a subsequent appeal in which a party's case can be differently articulated. Parties are expected to advance their cases to their best advantage, permitting a judge to decide between two competing sets of submissions that identify the full extent of the parties’ positions’ (paragraph 31 [of the Decision of the Upper Tribunal]).[67]Accordingly, he submitted this was not a case where the Singh v Dass discretion to allow a new point to be argued before this Court should be exercised.

Discussion

[68]In my judgment, the Upper Tribunal correctly identified the central question raised by CP’s case as being whether there is a real risk or reasonable possibility that an individual such as CP targeted by criminal gangs will not be able to access reasonable protection through the Jamaican witness protection programme or otherwise. In the present case, the evidence from the letter of the Jamaican Ministry of 13 September 2023 was that, based on their most recent threat assessment the probability of harm against CP’s family in Jamaica was high. This was obviously a reference to a much more recent threat assessment than the country guidance in AB in 2007. It was also specific to CP and his family, unlike either the findings in AB or the CPIN. Furthermore, it was referring to the probability of harm in Jamaica generally, not just in Kingston and Westmoreland. It is no doubt because of that high probability of harm in Jamaica generally that, despite being invited to do so, Mr Tufan did not feel able to make any submissions about the possibility of internal relocation in the event that CP was not accepted onto the witness protection programme.[69]The letter from the Ministry also made it clear that there was no guarantee that CP would be accepted onto that programme and that assessments by various Jamaican state agencies would have to be undertaken before a decision was made as to whether he would be accepted onto the programme. Two of the statutory factors which the Jamaican authorities would take into account were his serious criminal record and his mental health issues. It is unclear whether the Ministry were aware of those matters at the time the letter was written but, as the Upper Tribunal recorded at [32] of their Decision, they were relevant to the availability and likelihood of state protection in CP’s case.[70]On the basis of that material, there was a real risk that CP would not be able to access the Jamaican witness protection programme, as was common ground before the Upper Tribunal, recorded in [3] of the Decision. Applying the correct standard of proof to that material, CP clearly satisfies that standard. As Singh LJ put it in MAH (Egypt) v SSHD [2023] EWCA Civ 216 at [52]:
“It is also well established that the standard required is less than a 50% chance of persecution occurring. Even a 10% chance that an applicant will face persecution for a Convention reason may satisfy the relevant test: see Cardozo-Fonseca, at 440, cited by Lord Keith in Sivakumaran, at 994; and Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, a decision of the High Court of Australia given by Mason CJ, cited with approval by Brooke LJ in Karanakaran v Secretary of State for the Home Department [2000] 2 All ER 449, at 464.”
[71]I consider that the Upper Tribunal were correct to conclude that the headnote and [155] of the Determination in AB do not accurately reflect that standard of proof and that they were entitled to decide that both should not be read literally. Of the various possible rewritings of the first paragraph of the headnote, I consider that put forward by the SSHD in EP quoted at [49] above is the clearest application of the correct standard of proof and that the headnote and [155] should be amended accordingly.[72]For the avoidance of doubt, since this is a point of law, there was no question of it not being open to the Upper Tribunal to put right the incorrect analysis of the law as to the burden of proof in AB. As the Upper Tribunal recorded in (5) of the Decision refusing Permission to Appeal (with which Mr Malik KC did not quibble) and as [12.2] of the relevant Practice Direction quoted at [46] above makes clear a country guidance determination is authoritative on the evidence and operates as a presumption of fact applicable in other cases raising similar factual issues. However, it is not binding on the Upper Tribunal even as to factual issues and certainly not on points of law. Mr Malik’s submission that the Upper Tribunal should not have interfered with the headnote in and [155] of AB without convening a fresh Country Guidance panel is misconceived. In any event it is open to the Court of Appeal to decide that the law has been incorrectly stated in a Country Guidance case before the tribunal, as I have done in this judgment. Ground 1 of the grounds of appeal must be dismissed.[73]On the basis of the material before the Upper Tribunal and, specifically, the letter from the Jamaican Ministry, the Upper Tribunal was entitled to conclude that, unless CP was admitted onto the witness protection programme, he faced a real risk of harm if returned to Jamaica, in other words, outside the programme, there would not be sufficiency of protection. It follows that the criticisms levelled by the SSHD at the Decision of the Upper Tribunal in ground 2 of the grounds of appeal are misplaced.[74]There was no basis for any suggestion that internal relocation would have provided CP with sufficient protection, which would have been completely inconsistent with the threat assessment of the Ministry of a high probability of harm to CP and his family in Jamaica generally, not limited to specific areas. Mr Malik’s reliance on the phrase “effective protection in his home area” in the headnote in AB as demonstrating that the evidence did not support the view that internal relocation was an unsafe or unreasonable option in Jamaica in general may have been the case on the facts of AB. However, in the present case, there is specific evidence in the Ministry letter that there was a high probability of harm to CP and his family in Jamaica generally which points clearly to internal relocation not providing a sufficiency of protection outside the witness protection programme.[75]In any event, the SSHD did not put forward any evidence that internal relocation would have provided sufficient protection nor did Mr Tufan advance any submissions to that effect. Rather, he accepted (as recorded in [31] and [33]-[34] of the Decision) that if CP succeeded on ground 1 of his appeal, the Upper Tribunal could redecide the appeal on the findings of fact made by the FTT, which is what the Upper Tribunal then did. The passages from Akhtar and AL set out at [65] and [66] above make it clear that there is no basis for any criticism of the Upper Tribunal in taking that course.

Conclusion

[76]For these reasons, the appeal of the SSHD is dismissed.

Elisabeth Laing LJ

[77]I agree.

Popplewell LJ

[78]I also agree.