1) Introduction
In Secretary of State for the Home Department v CP [2026] EWCA Civ 892, the Court of Appeal (Civil Division)
dismissed the Secretary of State’s appeal from the Upper Tribunal (Immigration and Asylum Chamber).
The case concerned a Jamaican national facing deportation following very serious criminal convictions.
CP was excluded from Refugee Convention protection because he could not rebut the presumption in section 72 of the
Nationality, Immigration and Asylum Act 2002 (danger to the community), and he did not pursue Article 8 ECHR.
The sole issue was whether removal would breach Article 3 ECHR, given an asserted real risk of gang violence in Jamaica and the
question whether CP could obtain “sufficient protection” from the Jamaican state—particularly through the Jamaican witness protection programme.
The central legal controversy was how to apply the “real risk / reasonable likelihood” standard of proof when the alleged Article 3 harm comes from
non-state actors, and state protection is said to depend on admission to a specific protection scheme. That controversy arose from the wording of
the country guidance in AB (Protection, criminal gangs, internal relocation) Jamaica CG [2007] UKAIT 00018.
2) Summary of the judgment
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The Court of Appeal held that the Upper Tribunal was right to conclude that the wording in the headnote and at paragraph [155] of
AB (Protection, criminal gangs, internal relocation) Jamaica CG [2007] UKAIT 00018 should not be read literally if it would impose an
impermissibly high standard of proof in protection/Article 3 cases.
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The correct question is whether there is a real risk / reasonable possibility that the person will not be able to
access reasonable state protection (including, where relevant, through the witness protection programme).
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The Court confirmed that country guidance is authoritative as a “presumption of fact” on country-evidence issues, but it is not binding on points of law.
The Upper Tribunal (and the Court of Appeal) can correct a misstatement of law in country guidance without convening a new country guidance panel.
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On the facts, there was specific evidence from the Jamaican Ministry of National Security that the “probability of harm” to the family in Jamaica was “HIGH” and
that admission to the programme was not guaranteed; on the accepted position before the Upper Tribunal, there was a real risk CP could not access the programme,
so Article 3 was breached.
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The Secretary of State’s attempt to revive internal relocation arguments failed, both because they were inconsistent with the specific “HIGH” risk assessment and
because they had not been advanced in the Upper Tribunal when invited to do so.
3) Analysis
3.1 Precedents cited
The Court’s treatment of standard of proof and state protection is anchored in well-established authority:
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Chahal v United Kingdom (1997) 23 EHRR 413:
the removal test under Article 3 is whether “substantial grounds have been shown for believing” there is a “real risk” of prohibited treatment.
This frames the overall Article 3 inquiry in deportation/removal contexts.
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R v SSHD ex parte Sivakumaran [1988] AC 958:
the “well-founded fear” test requires a “reasonable degree of likelihood” of persecution; this underpins the “real risk / reasonable likelihood” standard
later expressed across refugee and Article 3 risk assessments.
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Horvath v Secretary of State for the Home Department [2000] UKHL 37:
in non-state actor cases, international protection is “surrogate” and arises only where the home state is “unable or unwilling” to provide protection.
Critically, the standard of protection is not a guarantee; it is a practical, reasonable standard in an imperfect world.
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R (Bagdanavicius) v SSHD [2005] 2 AC 668:
harm by non-state actors is not Article 3 ill-treatment unless the state fails to provide reasonable protection; the decision emphasises separating
(i) risk of harm and (ii) failure of protection.
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MAH (Egypt) v SSHD [2023] EWCA Civ 216:
confirms the low threshold—sometimes described as potentially satisfied even by a 10% chance—applicable to both past facts and future risk assessment.
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SG (Iraq) v SSHD [2012] EWCA Civ 940; [2013] 1 WLR 41:
cited for the obligation to follow country guidance unless strong grounds with cogent evidence justify departure—relevant to the Secretary of State’s argument,
though the Court distinguished the position where the issue is one of law, not country fact.
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Akhtar v SSHD [2024] EWCA Civ 354 and AL v SSHD [2026] EWCA Civ 370:
applied to reject criticisms of the Upper Tribunal for not dealing with points not pursued before it, reinforcing modern appellate discipline in immigration appeals.
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SSHD v OSB [2026] EWCA Civ 647 (and by reference Singh v Dass [2019] EWCA Civ 360):
invoked by the Secretary of State to argue a new/renewed point could be taken; the Court did not accept this assisted on the facts and procedural posture here.
3.2 Legal reasoning
(a) The key legal correction: standard of proof for “access to protection”
The Court accepted the Upper Tribunal’s diagnosis of the problem in AB (Protection, criminal gangs, internal relocation) Jamaica CG [2007] UKAIT 00018:
the phrasing “unless reasonably likely to be admitted into the Witness Protection programme” (headnote) and the similar wording in paragraph [155] can be read to mean
that, if there is any “reasonable likelihood” of admission, a claim fails—even if it is far more likely that admission will not occur.
That literal reading would invert the protective logic of Article 3 and refugee-risk assessment: a claimant could be refused despite a high probability
that the state will not protect them, merely because there remains some chance of access to the protective mechanism. The Court agreed that this would impose
an impermissibly high standard, inconsistent with Sivakumaran, MAH (Egypt) v SSHD [2023] EWCA Civ 216, and the settled “real risk” approach.
The Court therefore endorsed the reframing adopted by the Upper Tribunal: the tribunal must ask whether there is a real risk / reasonable possibility
that the person will not be able to access reasonable state protection (including the witness protection programme).
(b) Reconciling “sufficiency of protection” (quality) with “real risk” (probability)
The Court treated the First-tier Tribunal’s error as a conflation of two distinct ideas:
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Horvath-standard protection: the quality of the protection the state provides need only be reasonable/practical, not absolute.
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Real risk / reasonable likelihood: the probability that the claimant will suffer Article 3 harm (including because protection cannot be accessed)
is assessed on a low threshold.
The Court’s approach preserves Horvath (no requirement of guaranteed safety) while insisting that the claimant does not have to prove,
on a balance of probabilities, that protection will fail; it is enough to establish a real risk that it will fail in practice (including because admission to a programme is uncertain).
(c) The status of country guidance and the Upper Tribunal’s authority
A major procedural submission was that the Upper Tribunal had “re-written” country guidance impermissibly and should instead have convened a new country guidance panel.
The Court rejected this. Relying on the Senior President of Tribunals’ Practice Directions (notably paragraph 12.2), it reiterated:
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Country guidance is authoritative as to country-evidence findings (“a presumption of fact” for like cases on similar evidence).
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It is not binding as a matter of law; where guidance misstates legal principle, the Upper Tribunal and Court of Appeal must apply binding higher authority.
The Court went further by indicating the “clearest” amendment to the AB headnote (as advanced by the Secretary of State in separate proceedings) should be adopted:
“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.”
(d) Application to CP: specific evidence and internal relocation
The Court emphasised the importance of the September 2023 letter from the Jamaican Ministry of National Security: it contained a family-specific and recent threat assessment,
describing the probability of harm in Jamaica as “HIGH”, and it stated there was “no guarantee” of placement on the programme because multiple state agencies would assess the case.
Against that background, the Court held:
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There was a real risk CP could not access the programme (a matter recorded as common ground before the Upper Tribunal).
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Absent programme admission, the evidence supported the conclusion that sufficient protection would not be available, and internal relocation was not a realistic answer
given the “HIGH” risk “in Jamaica” generally.
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Procedurally, the Secretary of State could not fault the Upper Tribunal for failing to address internal relocation when it had not been advanced there,
particularly after the Upper Tribunal invited further submissions and none were made.
3.3 Impact
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For Jamaican gang-risk cases: tribunals applying AB (Protection, criminal gangs, internal relocation) Jamaica CG [2007] UKAIT 00018 must avoid any reading that
makes protection turn on a claimant proving it is more likely than not that they will be excluded from the witness protection programme. The question is whether there is a
real risk that they will be unable to access it (and thus face Article 3 risk).
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For country guidance generally: the decision draws a firm boundary—country guidance is not a safe harbour for legal misstatements. Where guidance embeds (even inadvertently)
an incorrect legal test, the Upper Tribunal and appellate courts can correct it without convening a new country guidance panel.
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For appellate practice: the Court reinforced that appellate criticism cannot be founded on points not pursued below, aligning with the approach in
Akhtar v SSHD [2024] EWCA Civ 354 and AL v SSHD [2026] EWCA Civ 370.
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For evidence-gathering: case-specific, recent threat assessments from competent state bodies may outweigh generic country materials (including CPINs) on the
intensity and geographic spread of risk and the viability of internal relocation.
4) Complex concepts simplified
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“Real risk” / “reasonable likelihood”:
a low probability threshold. The claimant does not need to show harm is more likely than not—only that there is a real possibility.
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Non-state actor harm and “sufficiency of protection”:
if the feared harm comes from criminals (not the state), Article 3 is engaged only if the state cannot/will not provide reasonable protection.
The state is not required to guarantee safety, but it must operate an effective system the person can actually access.
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Access vs adequacy:
even if a protection programme is effective in principle, the legal question includes whether there is a real risk the person cannot access it in practice.
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Country Guidance (“CG”):
a mechanism to ensure consistency on recurring country-evidence issues. It is authoritative on facts/evidence assumptions, but it does not override binding legal tests.
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Internal relocation:
whether moving to another part of the country would avoid the real risk. It is fact-sensitive; in this case, the evidence indicated a high probability of harm across Jamaica.
5) Conclusion
[2026] EWCA Civ 892 establishes that in Article 3 (and analogous protection) claims involving non-state actors, the “real risk / reasonable likelihood” standard applies not only
to the risk of harm but also to whether the claimant will be able to access reasonable state protection. It corrects the potentially misleading phrasing in
AB (Protection, criminal gangs, internal relocation) Jamaica CG [2007] UKAIT 00018 and confirms that the Upper Tribunal and appellate courts may rectify legal misstatements in
country guidance without convening a new country guidance panel. On the particular facts—especially the recent, individualised Jamaican threat assessment and the absence of any guaranteed
route into witness protection—CP’s removal would breach Article 3.