Summary of Judgment
Factual and Procedural Background
The Respondent is a national of The State, born in 1984. His mother acted as a police informer, gave evidence at a murder trial and entered a witness protection programme in The State. The mother relocated to The City in 1999. The Respondent travelled to The City in 2001 and was granted temporary leave to enter and later student leave; he thereafter had no further leave to remain. He claimed asylum in 2006.
Between 2007 and 2013 the Respondent committed a series of criminal offences, including unlawful wounding, burglary and, while an asylum claim remained under consideration, two counts of rape for which he was convicted in 2013 and received an extended sentence. He has remained in custody and was recalled to prison in November 2022.
The Appellant issued notices of liability to deport and formal deportation documents between 2010 and 2019, and on 2 September 2019 refused the Respondent's protection and human rights claims and maintained the deportation decision. The Respondent appealed to the First-tier Tribunal ("FTT"), conceding exclusion from refugee protection and not advancing an Article 8 claim; the sole issue was whether return would breach Article 3 ECHR.
During FTT proceedings, the Appellant contacted Company C (the relevant Ministry in The State). Company C replied on 13 September 2023 that the documentary record was authentic, that the probability of harm to the family in The State was "HIGH", that there was no guarantee of placement on the Witness Protection Programme and that various assessments by state agencies would be required before readmission could be determined.
The FTT dismissed the Respondent's Article 3 claim in November 2023. The Respondent appealed to the Upper Tribunal which (in a decision promulgated March 2025) concluded the FTT had erred on the applicable standard of proof in relation to access to the Witness Protection Programme, remade the appeal and allowed it on Article 3 grounds. The Appellant sought permission to appeal to this Court; permission was granted and the Appellant's appeal was heard on 2 July 2026.
Legal Issues Presented
- Whether the Upper Tribunal was correct to conclude that the headnote and paragraph 155 of AB (Protection, criminal gangs, internal relocation) Jamaica CG [2007] UKAIT 00018 should not be read literally insofar as they appear to require that it be "reasonably likely" that an individual would be admitted to the Witness Protection Programme in order for state protection to be sufficient, and whether that literal reading misstates the lower standard of proof applicable in protection/Article 3 cases.
- Whether the Upper Tribunal exceeded its jurisdiction or otherwise erred in effectively amending country guidance rather than convening a fresh Country Guidance panel.
- Whether, in remaking the appeal in favour of the Respondent, the Upper Tribunal failed to consider material evidence or issues (notably internal relocation and statutory factors relevant to admission to the Witness Protection Programme).
Arguments of the Parties
Appellant's Arguments
- The Upper Tribunal impermissibly re-wrote the country guidance in AB; the FTT applied AB correctly and there was no error of law.
- AB's language reflects the Horvath approach: sufficiency of protection is a practical standard and the phrase "unless reasonably likely to be admitted" does not alter the standard of proof; omission of that phrase would wrongly elevate the test to require guaranteed protection.
- Where an individual is not reasonably likely to be admitted to the programme, the tribunal must still consider whether internal relocation would avoid detection and risk; the Upper Tribunal failed to do so.
- Procedurally, the Upper Tribunal should have convened a Country Guidance panel if it considered AB to be wrong; practice directions require adherence to country guidance unless cogent reasons exist to depart.
- The Upper Tribunal's decision to remake the appeal assumed the Respondent's success because of a real risk of non-admission to the programme without properly engaging with evidence or allowing the Appellant to advance submissions (including on internal relocation).
Respondent's Arguments
- There was common ground before the Upper Tribunal that (i) the Respondent faced a real risk of harm on return, (ii) admission to the Witness Protection Programme would provide Horvath-standard protection, and (iii) there was a real risk the Respondent would not be able to access the programme.
- The correct standard in protection/Article 3 cases is the "real risk" or "reasonable likelihood" standard (significantly below balance of probabilities); the headnote/paragraph 155 in AB, read literally, would impose an impermissibly high standard.
- The Appellant had multiple procedural opportunities to raise issues (including rule 24 and other avenues) and did not press internal relocation before the Upper Tribunal; the Appellant cannot run fresh arguments on appeal where they were not advanced below.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Chahal v United Kingdom (1997) 23 EHRR 413 |
Test for Article 3 removal risk: whether "substantial grounds" exist to believe the person would face a real risk of Article 3 treatment if expelled. |
The FTT relied on this formulation of the Article 3 test; the Court treated it as the governing articulation of risk. |
| AB (Protection, criminal gangs, internal relocation) Jamaica CG [2007] UKAIT 00018 |
Country guidance on sufficiency of state protection in The State and role of the Witness Protection Programme, including headnote and paragraph 155 addressing admission to the programme and internal relocation. |
The Upper Tribunal concluded that the headnote and paragraph 155 should not be read literally insofar as they appear to require "reasonably likely to be" admission; the Court of Appeal agreed that those passages should be read consistently with the lower standard of proof. |
| Horvath v Secretary of State for the Home Department [2000] UKHL 37; [2001] AC 489 |
State must provide "reasonable" (practical) protection; standard is not one of guaranteed elimination of all risk. |
Both tribunals and the Court applied Horvath as setting the standard for sufficiency of protection if the state provides reasonable protection; used to emphasise distinction between risk of harm and sufficiency of protection. |
| R (Bagdanavicius) v SSHD [2005] 2 AC 668 |
Importance of distinguishing between risk of harm and risk of Article 3 ill-treatment and the state's duty to provide protection. |
Quoted and applied to show the need to assess whether the state would fail to provide reasonable protection in non-state-actor cases. |
| MAH (Egypt) v SSHD [2023] EWCA Civ 216 |
Affirms that the standard required in protection cases is less than 50% and that even a 10% chance may suffice. |
Cited by the Upper Tribunal and Court to support the proposition that a low probability of harm can satisfy the real risk standard. |
| R v SSHD ex parte Sivakumaran [1988] AC 958 |
Describes "well-founded fear" as a reasonable degree of likelihood that persecution will occur. |
Relied upon by the Respondent to support the applicable standard of proof. |
| Cardozo-Fonseca |
Authority cited for the proposition that a low probability may suffice to establish risk (as referenced in the judgment). |
Used in support of the lower-standard analysis; cited but not elaborated in detail. |
| Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 |
Authority cited for the proposition that a low probability can satisfy the test. |
Cited in support of the proposition that even a 10% chance may meet the relevant test. |
| Karanakaran v Secretary of State for the Home Department [2000] 2 All ER 449 |
Discusses standards of proof in asylum/refugee context. |
Cited in the Court's discussion of standards of proof; relied on by prior authorities referenced in the judgment. |
| SG (Iraq) v SSHD [2012] EWCA Civ 940; [2013] 1 WLR 41 |
Principle that country guidance determinations should be followed unless strong, cogent evidence justifies departure. |
Relied upon by the Appellant to argue that the Upper Tribunal should not have departed from AB; Court considered SG in assessing the extent to which country guidance binds tribunals. |
| Abdi Roba v SSHD [2022] UKUT 1 (IAC) |
Explains that country guidance operates as an authoritative presumption of fact but is not binding on the Upper Tribunal on points of law. |
Quoted by the Upper Tribunal to support its authority to correct legal misstatements in a country guidance determination. |
| SSHD v OSB [2026] EWCA Civ 647 |
Recent authority referenced on procedural/argument matters and citation to Singh v Dass. |
Cited in submissions on procedural propriety and whether points could be raised; considered by the Court in the context of procedural arguments. |
| Singh v Dass [2019] EWCA Civ 360 |
Addresses the discretion to allow new points to be argued at appellate stage. |
Relied on in submissions about whether the Appellant could advance new arguments on appeal; the Court applied the principles in assessing procedural fairness. |
| Akhtar v SSHD [2024] EWCA Civ 354 |
Authority for the proposition that an appeal is not a vehicle to raise issues the tribunal was never asked to consider. |
Cited by the Respondent to resist late-raised arguments by the Appellant; the Court accepted the relevance of this procedural principle. |
| AL v SSHD [2026] EWCA Civ 370 |
Confirms that judges are not required to search for points not advanced by the parties and should decide between the sets of submissions presented. |
Relied on by the Respondent and cited by the Court in support of the approach taken by the Upper Tribunal when parties did not press certain lines of argument. |
Court's Reasoning and Analysis
The Court (Judge Flaux delivering the approved judgment, with Judges Laing and Popplewell agreeing) analysed whether the Upper Tribunal had erred in law in its treatment of the AB country guidance and the standard of proof applicable in protection/Article 3 cases involving non-state actors.
The Court accepted the Upper Tribunal's premise that the applicable standard in both the risk of harm and the question whether the state will provide reasonable protection is the lower "real risk" or "reasonable likelihood" standard (significantly below the civil balance of probabilities). The Court noted authorities (including MAH (Egypt), Sivakumaran, Cardozo-Fonseca and others) establishing that even a low probability (e.g. 10%) may satisfy the risk threshold.
The Court examined the AB headnote and paragraph 155 and agreed with the Upper Tribunal that a literal reading of the phrase "reasonably likely to be" in those passages would impose an impermissibly high standard in protection/Article 3 cases. The Court held that paragraph 155 and the second sentence of the headnote in AB should not be read literally and that they should be understood consistently with the lower standard of proof applicable in such cases.
The Court further considered the factual material before the Upper Tribunal, notably Company C's letter of 13 September 2023 stating that the probability of harm to the family in The State was "HIGH" and that there was no guarantee of readmission to the Witness Protection Programme because various state assessments would be required. The Court treated that material as specific and recent evidence, distinct from the generic findings in AB.
On the basis of that material and the accepted common ground before the Upper Tribunal (that there was a real risk of harm and a real risk that the Respondent would not be able to access the programme), the Court concluded that applying the correct (lower) standard of proof the Respondent satisfied the threshold for Article 3 protection. The Court also held that the Upper Tribunal was entitled, as a matter of law, to correct the legal analysis in AB and that it was not procedurally impermissible for the Upper Tribunal to address the point rather than convene a fresh Country Guidance panel.
The Court rejected the Appellant's contention that the Upper Tribunal erred by remaking the appeal without adequately addressing internal relocation or other matters: the Court noted the Appellant had ample procedural opportunities to press those points before the Upper Tribunal, did not do so, and did not seek to challenge the Upper Tribunal's provisional view when invited. Moreover, the specific threat assessment in Company C's letter (high probability of harm in The State generally) undermined the prospect that internal relocation would provide sufficient protection.
Holding and Implications
APPEAL DISMISSED
Holding: The Court dismissed the Appellant's appeal. It upheld the Upper Tribunal's conclusion that AB's headnote and paragraph 155 should not be read literally so as to impose a higher standard than the established "real risk" standard, and it affirmed the Upper Tribunal's decision to remake the appeal and allow the Respondent's Article 3 claim.
Implications: The direct effect is that the Upper Tribunal's remake allowing the Respondent's Article 3 claim stands and the deportation decision was set aside on Article 3 grounds. The Court affirmed the principle that country guidance determinations are authoritative on the evidence but are not binding on points of law and that tribunals may correct legal error in country guidance; the judgment applied existing authorities on the standard of proof and on procedural limits to raising new issues on appeal. The Court did not purport to create broader legal principles beyond its application of established authorities to the facts before it.
Anonymization note: All individuals and specific institutional names appearing in the provided opinion have been replaced with generic placeholders (e.g., "Appellant", "Respondent", "Judge [Last Name]", "Attorney [Last Name]", "Company A/B/C", "The State", "The City") in accordance with the summary requirements. Precedent citations are reproduced as they appear in the provided opinion.