MU v Secretary of State for the Home Department: Mandatory Assessment of State Protection & Internal Relocation in Article 3 ECHR Deportation Appeals

Introduction

The Court of Appeal’s decision in MU v Secretary of State for the Home Department ([2025] EWCA Civ 812) revisits the perennial Article 3 ECHR question that arises in deportation appeals by “foreign criminals”: when the feared harm emanates from non-state actors, do decision-makers have to grapple expressly with (a) the availability of effective state protection and (b) the feasibility of internal relocation? The Court answered with an emphatic “yes”, holding that the First-tier Tribunal (“FTT”) and the Upper Tribunal (“UT”) had both erred in law by failing to analyse those elements.

The case also illustrates the Court of Appeal’s readiness to re-make a tribunal decision itself under s. 14(2)(b)(ii) Tribunals, Courts and Enforcement Act 2007 where (i) new, uncontested country evidence fundamentally alters the risk landscape, and (ii) the factual matrix is no longer in dispute.

Parties:

• Appellant (before the Court of Appeal): Secretary of State for the Home Department, represented by Mr Zane Malik KC
• Respondent: MU (Bangladeshi national), represented by Mr James Collins, Counsel
• Court: England and Wales Court of Appeal (Civil Division)
• Coram: Bean LJ, Andrews LJ, King LJ

Summary of the Judgment

1. The respondent, a Bangladeshi citizen who had served six years’ imprisonment for rape in the UK, appealed against a deportation order on Article 3 ECHR grounds, claiming a real risk of serious harm from Awami League supporters on account of prior Bangladesh National Party (“BNP”) activism.
2. The FTT accepted the Article 3 claim, finding sufficiency of protection and internal relocation “not options”.
3. The UT upheld the FTT in a short decision.
4. The Court of Appeal allowed the Secretary of State’s appeal:

• The FTT’s reasons were “seriously flawed” because it never analysed state protection or internal relocation after accepting that the only risk arose from non-state actors.
• Subsequent regime change in Bangladesh (August 2024) and a new CPIN (December 2024) showed that BNP members were now “unlikely” to face persecution; risks had “wholly changed”.
• Exercising its power to re-make the decision, the Court dismissed MU’s human-rights appeal outright.

Analysis

1. Precedents Cited and Relied Upon

• Horvath v SSHD [2001] 1 AC 489 – established that an asylum seeker must show not merely a risk from non-state actors but also that the home state is unwilling or unable to provide effective protection.
• Januzi v SSHD [2006] UKHL 5 – laid down the “reasonableness” test for internal relocation; relocation must be unduly harsh before it is discounted.
• AH (Sudan) v SSHD [2007] UKHL 49 – reiterated that tribunals must confront the internal-relocation question explicitly.
• Otshudi v SSHD [2019] EWCA Civ 873 – Court of Appeal’s power to re-make decisions where findings are inevitable.
• Robinson v SSHD [2019] UKSC 11 – clarified the scope of appeals under the 2002 Act and emphasised careful reasoning in protection claims.

Although the judgment itself does not string-cite all of these authorities, the Court’s criticism of the FTT unmistakably traces its roots to Horvath and Januzi.

2. The Court’s Legal Reasoning

1. Nature of the Risk
   The only evidenced threat came from local Awami League supporters (non-state actors). Once that was accepted, two questions became mandatory: (a) Could Bangladeshi authorities offer protection? (b) Could MU safely move to another part of Bangladesh?
2. Error of Law by the FTT
   The FTT simply asserted, without analysis, that “sufficiency of protection and internal relocation are therefore not options”. The Court labelled this a “non sequitur” because:
   • No evidence suggested national authorities were unwilling or unable to help outside Sylhet.
   • MU’s previous entries (2017 & 2019) attracted no state attention at airports.
   • The risk was localised, pointing to the potential safety of relocation—e.g. Dhaka.
3. Failure of the Upper Tribunal
   The UT compounded the error by offering only a “single short paragraph” of reasons, ignoring the Secretary of State’s pleaded grounds on protection and relocation. That omission justified interference by the appellate court (Robinson principle).
4. Effect of Post-Decision Country Evidence
   The August 2024 overthrow of the Awami League fundamentally changed risk dynamics:
   • The December 2024 CPIN concluded BNP supporters are “unlikely” to be persecuted.
   • The state is now able and willing to protect against rogue or non-state actors.
   Under s. 14(2)(b)(ii) TCEA 2007, the Court can re-make a decision where the outcome is inevitable. The Court found the new evidence “incontrovertible”.

3. Potential Impact of the Judgment

• Tribunal Procedure: FTT judges must provide reasoned conclusions on protection and relocation whenever risk stems from non-state actors. A bare assertion will be treated as an error of law.
• Home Office Litigation Strategy: CPIN changes can be decisive. Where new country material post-dates the Tribunal decision, presenting officers may seek to rely on it even at appellate stage.
• Court of Appeal Jurisdiction: Affirms a robust approach to re-making rather than remitting where (a) factual disputes are absent and (b) updated objective evidence removes any real risk.
• Substantive asylum jurisprudence: Re-emphasises the Horvath/Januzi doctrine—now packaged as an absolute procedural requirement.

Complex Concepts Simplified

• Article 3 ECHR – prohibits torture, inhuman or degrading treatment. In deportation cases, the UK must not return someone to a place where such ill-treatment is a real risk.
• Non-state actors – individuals or groups (e.g., political militants) not part of the official government.
• State protection test (Horvath) – Even where persecution comes from non-state actors, it breaches Article 3 only if the state is unwilling or unable to protect the individual.
• Internal relocation (Januzi) – If harm is geographically limited, the claimant must show it would be “unduly harsh” to live safely elsewhere in the country.
• CPIN (Country Policy and Information Note) – Home Office document summarising current country conditions; frequently cited as objective evidence.
• Re-making a decision – An appellate court or tribunal substitutes its own decision instead of sending the matter back, permissible where further fact-finding isn’t needed.

Conclusion

MU v SSHD is more than a fact-specific reversal; it is a doctrinal reminder that every Article 3 deportation analysis driven by non-state threats must:

1. Confront the adequacy of state protection, and
2. Evaluate whether internal relocation would neutralise the risk without being unduly harsh.

Failure to address those components is an error of law warranting appellate intervention. Moreover, the decision showcases the Court of Appeal’s willingness to wield its re-making power where uncontested, post-hearing country evidence makes the outcome clear, thereby promoting finality and judicial economy. Practitioners must therefore ensure that any Article 3 submissions comprehensively tackle state protection and relocation, and remain alert to evolving country material that could decisively alter the risk calculus.