New Precedent: The Imperative for Cogent Evidence in Departing from Country Guidance on Article 3 Deportation Cases

Introduction

The case of Secretary of State for the Home Department v PG ([2025] EWCA Civ 133) presents a pivotal development in the interplay between immigration control and human rights protection under Article 3 of the European Convention on Human Rights (ECHR). The appellant, PG, a 50‐year‐old Sri Lankan of Tamil ethnicity, has a complex legal history involving a student visa, subsequent criminal convictions for sexual offences involving minors, and an asylum claim based on his sexual orientation. PG contends that his deportation to Sri Lanka would expose him to a real risk of inhuman and degrading treatment due to the prevailing legal and social climate towards gay men in Sri Lanka. At the heart of the dispute lies whether the existing country guidance regarding the treatment of gay people – particularly the case of LH & IP – should be adhered to or whether compelling post‐2015 evidence permits a departure from that guidance when considering risks under Article 3. This case pits the immigration interests of the UK government against human rights protections for individuals who may face persecution on account of their sexuality, and it involves multiple judicial bodies including the Upper Tribunal, the First-Tier Tribunal, and ultimately the Court of Appeal.

Summary of the Judgment

In its decision dated 12 June 2023, UT Judge Perkins allowed PG's appeal, finding that his deportation to Sri Lanka would breach his Article 3 ECHR rights. The judge evaluated evidence including postguidance material such as the Galabada decision, various reports, and country-specific data that highlighted prosecutorial practices and the risk of societal persecution. Notwithstanding the apparent rarity of prosecutions under Sri Lankan law, the possibility of coercion, abuse by state actors, and the general climate of disapproval towards gay people informed the conclusion that PG’s removal would amount to degrading treatment. The judgment critically examined the approach to departing from the established country guidance (LH & IP) and held that any departure requires “very strong grounds supported by cogent evidence.” Despite PG’s criminal convictions and past difficulties to rebut a presumption of dangerousness, the weight of evidence concerning the treatment of gay individuals ultimately influenced the decision.

Analysis

Precedents Cited

The judgment rests on a careful reading of several important precedents:

• LH & IP (gay men: risk) Sri Lanka CG [2015] UKUT 73 (IAC): This case forms the foundation of the country guidance regarding the risk levels faced by gay men in Sri Lanka. The guidance generally held that the treatment of gay men did not reach the threshold of persecution or serious harm. However, the judgment notes that the evidence on which LH & IP was based – chiefly, the absence of prosecutions – has been challenged by more recent material.
• SG(Iraq) v SSHD [2012] EWCA Civ 940: This decision underscored that any departure from established country guidance requires the presentation of “cogent evidence giving very strong grounds” for doing so. The failure to provide such evidence was critical in determining material errors in lower tribunal decisions.
• HJ (Iran) v SSHD [2010] UKSC 31: Although this decision framed the analysis of discrimination against gay individuals, its principles are here reappraised in light of more recent decisions such as MI v Switzerland, which is argued to have altered the understanding of such risks.
• SB (Sri Lanka) v SSHD [2019] EWCA Civ 160: This case provided further insight into categorising groups at risk of persecution and argued that the categories are not closed. It has been cited to suggest that even individuals with criminal convictions may face persecution, thereby influencing the debate on the significance of PG’s personal circumstances.

Legal Reasoning

The legal reasoning in the judgment reflects a nuanced and multi-step analysis:

1. Assessment of the General Situation vs. Personal Circumstances: The court emphasized the need to first consider the general environment in Sri Lanka, relying on country guidance cases to establish whether gay men are categorically subject to persecution. This includes juxtaposing the relatively infrequent prosecutions with the evidence that prosecutions do occur and that there is a climate of hostility.
2. The “Cogent Evidence” Requirement: Following the framework set out in SG(Iraq), the judge underscored that departing from well-established country guidance such as LH & IP requires very strong, cogently presented evidence. UT Judge Perkins’ reliance on postguidance materials such as the Galabada case, media reports, and human rights watchdog data was critically scrutinized, with the court concluding that his analysis was inadequate.
3. Risk Analysis under Article 3: The decision carefully adopts the stepped risk assessment from Khasanov & Rakhmanov v Russia and HJ (Iran), which demands not only an evaluation of the general risk facing a particular group, but also the individual applicant’s circumstances. Although acknowledging conflicting evidence on the actual frequency of prosecutions, the judge ultimately must decide whether the risk faced by PG meets the threshold of “inhuman or degrading treatment.”
4. Role of Prior Administrative Decisions: The court considered prior administrative decisions and policy instructions, such as the SSHD’s discretionary leave decision in 2013, thereby emphasizing continuity in PG’s claim and the underlying risks. Notwithstanding PG’s past criminal record, the consistent application of human rights safeguards plays a crucial role in determining his fate.

Impact on Future Cases

The implications of this judgment are far-reaching for both immigration law and human rights jurisprudence in the UK:

• Clearer Evidentiary Requirements: Future tribunals will be held to a higher standard when seeking to depart from established country guidance. Decisions will now require well-documented, cogent, and strong evidence before altering the starting point provided by previous cases.
• Balancing National Security and Human Rights: Although serious criminal convictions continue to influence deportation decisions, applicants may still invoke Article 3 rights if they can demonstrate that deportation would lead to inhuman or degrading treatment in the country of return.
• Guidance on Internal Flight Alternatives: The framework for assessing whether internal relocation within a destination country offers a safe harbor is reiterated and refined, ensuring that risk assessments consider both state and non-state actor conduct.
• Future Immigration Litigation: This decision will likely serve as a precedent in future cases where the interplay between country guidance, evolving evidence, and Article 3 assessments is central, thereby ensuring that decisions are both consistent and context-sensitive.

Complex Concepts Simplified

Several legal concepts emerge in this judgment that merit plain-English explanation:

• Country Guidance: This is essentially a set of conclusions and recommendations based on an assessment of the human rights situation in a given country. In this case, it relates to the treatment of gay men in Sri Lanka.
• Departure from Guidance: Tribunals may choose not to follow existing country guidance, but only if they can show with very strong evidence that conditions have changed or that the guidance is no longer applicable.
• Article 3 ECHR Risk Assessment: This involves a detailed evaluation of whether an individual, if deported, would face treatment that is so severe it violates the prohibition on torture or inhuman or degrading treatment.
• Internal Flight Alternative: This refers to the possibility that an individual can relocate within a country to avoid persecution. The judgment makes clear that safeguards must be in place for such an option to be effective.

Conclusion

The Court of Appeal’s analysis in Secretary of State for the Home Department v PG importantly reinforces that any deviation from established country guidance—specifically relating to the treatment of gay men in Sri Lanka—requires robust and cogent evidence. In the absence of such evidence, the risk assessment regarding deportation under Article 3 ECHR rights must continue to give significant weight to existing guidance. Although PG’s criminal record raises concerns of dangerousness, his unique circumstances as a gay man—combined with evolving evidence regarding the treatment of LGBTQ+ persons in Sri Lanka—demand a cautious approach when balancing state interests against human rights obligations. This judgment not only clarifies the evidentiary thresholds required to depart from country guidance but also underscores the necessity for a meticulous, step-by-step risk analysis in deportation cases. Ultimately, it signals that tribunals must provide clear, well-reasoned explanations if they intend to override established guidance, thereby setting a new standard in the adjudication of Article 3 claims in the context of immigration.

In summary, this case establishes a critical precedent for future deportation challenges: while country-specific guidance provides an essential starting point, any departure from that guidance must be firmly grounded in cogent evidence that convincingly demonstrates a real and substantial risk of persecution. This balanced approach ensures that immigration control does not override fundamental human rights.