Factual and Procedural Background
The Secretary of State for the Home Department ("SSHD") appealed against the decision of Upper Tribunal ("UT") Judge Perkins, who allowed the appeal of the Appellant ("PG") against the SSHD's decision to deport him to Sri Lanka on the basis that deportation would breach his rights under Article 3 of the European Convention on Human Rights ("ECHR").
PG is a 50-year-old Sri Lankan Tamil who entered the United Kingdom ("UK") in 2008 on a student visa. Following the expiry of his visa, PG was convicted in 2012 of multiple sexual offences involving minors in the UK and sentenced to four years' imprisonment. After his conviction, PG claimed asylum on the grounds that, as a gay man, he would face a risk of persecution if deported to Sri Lanka.
PG's asylum claim was initially refused due to a presumption of dangerousness arising from his criminal convictions. However, limited discretionary leave to remain was granted in 2013 on the basis that it would be unreasonable to expect PG to live discreetly in Sri Lanka to avoid inhuman or degrading treatment due to his sexuality.
The SSHD subsequently decided to deport PG, maintaining the presumption of dangerousness and concluding that deportation would not breach Article 3 ECHR. PG appealed this decision through the First-Tier Tribunal ("FTT") and the Upper Tribunal ("UT"). The FTT allowed PG's appeal on Article 3 grounds, but the UT initially overturned this decision due to a legal error concerning the departure from country guidance.
Following a re-hearing, UT Judge Perkins allowed PG's appeal, finding that deportation would breach Article 3 ECHR due to the risk of inhuman or degrading treatment on account of his sexuality in Sri Lanka. The SSHD was granted permission to appeal this decision.
Legal Issues Presented
- Whether the deportation of PG to Sri Lanka would breach his rights under Article 3 of the European Convention on Human Rights, specifically protection from torture or inhuman or degrading treatment on account of his sexual orientation.
- Whether the Upper Tribunal properly applied and provided adequate reasons for departing from the relevant country guidance case concerning the treatment of gay men in Sri Lanka ("LH & IP").
- Whether PG's personal circumstances, including his criminal convictions and threats from family members, affect the risk assessment under Article 3 ECHR.
- The appropriate legal approach to assessing risk of persecution or ill-treatment, including the relevance of internal relocation and the possibility of living discreetly.
Arguments of the Parties
Appellant's Arguments
- PG argued that his deportation would breach Article 3 ECHR because, as a gay man, he would face a real risk of inhuman or degrading treatment in Sri Lanka.
- He relied on material postdating the country guidance case LH & IP, including evidence of prosecutions of gay men, reports of police harassment, and the availability of conversion therapy.
- PG submitted that the SSHD had previously accepted in 2013 that it would be unreasonable to expect him to live discreetly in Sri Lanka to avoid persecution.
- He also contended that the legal principles in MI v Switzerland supported the position that living discreetly due to fear of persecution still constitutes a violation of Article 3.
- PG asserted that his personal circumstances, including threats from his wife's family and his criminal convictions, increased his risk of persecution if returned.
Respondent's (SSHD) Arguments
- The SSHD contended that the UT failed to apply the correct legal principles regarding Article 3 ECHR and failed to provide adequate reasons for departing from the country guidance in LH & IP.
- The SSHD argued that prosecutions of gay men in Sri Lanka are rare and that the general situation does not amount to persecution as defined under Article 3.
- It was submitted that the UT did not sufficiently analyse the evidence to justify departure from the country guidance and failed to properly consider PG's personal circumstances in the risk assessment.
- The SSHD maintained that the possibility of internal relocation and the ability to live discreetly in Sri Lanka reduced the risk of persecution to below the threshold required to engage Article 3.
- The SSHD disputed that PG's criminal convictions placed him at additional risk of persecution warranting protection from deportation.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| LH & IP (gay men: risk) Sri Lanka CG [2015] UKUT 73 (IAC) |
Country guidance on treatment of gay men in Sri Lanka and standard for persecution or serious harm. |
Served as the primary country guidance case; court considered whether sufficient grounds existed to depart from it based on new evidence. |
| SG (Iraq) v SSHD [2012] EWCA Civ 940 |
Requirement for very strong grounds supported by cogent evidence to depart from country guidance. |
Used to assess whether UT Judge Perkins and other tribunals properly justified departures from LH & IP. |
| Jain v SSHD [1999] EWCA Crim 3009 |
Definition and scope of "persecution" in the context of sexual offences and private sexual acts. |
Referenced to clarify that prosecution for private sexual acts can amount to persecution. |
| HJ (Iran) v SSHD [2010] UKSC 31 |
Framework for assessing asylum claims based on sexual orientation and the relevance of living openly vs discreetly. |
Applied to evaluate whether PG would live openly or discreetly and the legal significance of that choice. |
| MI v Switzerland (Application no. 56390/21, 12 November 2024) |
Interpretation of Article 3 regarding living discreetly in a persecutory environment. |
Considered in submissions to argue that forced discretion due to fear of persecution constitutes a violation of Article 3. |
| SB (Sri Lanka) v SSHD [2019] EWCA Civ 160 |
Clarification that categories of those at risk of persecution are not closed and consideration of individual circumstances. |
Discussed in relation to whether PG’s criminal convictions place him at risk of persecution. |
| Khasanov & Rakhmanov v Russia (GC) (2022) |
Stepwise approach to assessing real risk of Article 3 violations, focusing on general situation and individual circumstances. |
Guided the court’s approach to risk assessment regarding PG’s deportation. |
| JK & Others v Sweden (GC) (2016) Application no. 59166/12 |
State responsibility for protection from ill-treatment by non-State actors and the requirement for effective protection. |
Referenced to emphasize the relevance of state protection in assessing Article 3 risk. |
| R (RJM) v Secretary of State for Work and Pensions [2009] 1 AC 311 |
Binding authority of Supreme Court decisions and approach to conflicting case law. |
Used to address the legal hierarchy in relation to MI v Switzerland and HJ (Iran). |
Court's Reasoning and Analysis
The court undertook a detailed examination of the evidence concerning the treatment of gay men in Sri Lanka, including the country guidance case LH & IP and subsequent material demonstrating that prosecutions of gay men, while rare, do occur. The court recognized that the previous assumption in LH & IP—that no prosecutions had taken place—was incorrect, but emphasized that the rarity of prosecutions means the guidance remains a relevant starting point.
The court analyzed the legal framework for assessing Article 3 ECHR claims, applying the principles from HJ (Iran) and Khasanov & Rakhmanov, which require consideration of both the general situation in the destination country and the individual's personal circumstances. It acknowledged the necessity of strong, cogent evidence to depart from established country guidance, as mandated by SG (Iraq).
In assessing PG’s personal circumstances, including his criminal convictions and threats from family members, the court found no sufficient evidence that these factors independently or in combination created a real risk of persecution or ill-treatment amounting to a breach of Article 3. The court also noted that internal relocation away from hostile family members was a viable option.
The court identified deficiencies in UT Judge Perkins’ reasoning, particularly a lack of thorough analysis of the evidence justifying departure from LH & IP and insufficient explanation of why PG would face a real risk of persecution on return. While the judge accepted PG’s status as a gay man and acknowledged societal disapproval and some instances of ill-treatment in Sri Lanka, the overall conclusion that deportation would breach Article 3 was not supported by adequate reasoning.
The court also addressed submissions regarding the legal effect of living discreetly, concluding that the Supreme Court’s decision in HJ (Iran) remains binding despite later cases, and that the mere possibility of living discreetly does not negate a claim of persecution if the applicant would be forced to do so out of fear.
Ultimately, the court found that the UT had erred in law by failing to provide sufficient reasons to depart from the country guidance and by inadequately analyzing PG’s risk of Article 3 breach. It held that the factual and legal assessment of PG’s claim is best undertaken by the UT on remittal, given its specialist expertise.
Holding and Implications
The court ALLOWED THE SSHD'S APPEAL against the decision of UT Judge Perkins.
The decision of the UT allowing PG's appeal against deportation on Article 3 grounds was set aside due to insufficient legal reasoning and analysis. The case was remitted to the UT for a further hearing to properly assess whether PG's deportation to Sri Lanka would breach his Article 3 rights, considering both the country guidance and his personal circumstances.
No new legal precedent was established by this decision; rather, the court emphasized adherence to established principles requiring detailed analysis and cogent evidence when departing from country guidance. The direct effect is that PG’s deportation claim must be reconsidered with proper legal reasoning and evidence assessment by the UT.