Background
CP is a Jamaican national whose mother became a witness to a murder committed by a gang leader after testifying at trial that led to his conviction. The family entered Jamaica’s witness protection programme in 1997 and CP came to the United Kingdom in 2001, initially as a visitor. He subsequently applied for asylum in 2006, but while his claim was pending, he committed serious crimes including wounding (2007) and rape (2013), for which he received an extended 14-year sentence. Following his release and subsequent reimprisonment, the Secretary of State decided in September 2019 to deport him to Jamaica and refused his protection and human rights claims.
CP appealed on Article 3 ECHR grounds, arguing that return to Jamaica would expose him to a real risk of harm from the gang whose leader his mother had testified against, and that he would not be admitted to the Jamaican witness protection programme. The First-tier Tribunal dismissed his appeal, finding it was reasonably likely he would be admitted to the programme. CP appealed to the Upper Tribunal, which allowed his appeal on the basis that the First-tier Tribunal had applied an incorrect standard of proof.
The Court’s Holding
The Upper Tribunal held that the correct legal standard in Article 3/refugee protection cases involving risk from non-state actors requires consideration of whether there is a “real risk” or “reasonable possibility” that the state will fail to provide reasonable protection—not whether it is “reasonably likely” protection will be available. The Upper Tribunal clarified that the country guidance case AB (Protection, criminal gangs, internal relocation) Jamaica CG [2007] UKAIT 00018 should not be read literally on this point, as a literal reading would impose an impermissibly high standard of proof inconsistent with the longstanding principle that the threshold in protection cases is significantly lower than the civil balance of probabilities standard.
The Lower Tribunal had effectively conflated the standard of proof applicable to Article 3 claims (the lower “real risk” standard) with the standard of protection to be provided by the state (the Horvath standard of “reasonable” rather than absolute protection). Where an individual faces a real risk of harm from criminal gangs and there is a real risk he will not be admitted to the witness protection programme, that individual meets the threshold for Article 3 protection. Since it was common ground in the case that there was a real risk CP would not be admitted to the programme on return, the Upper Tribunal allowed his appeal.
Key Takeaways
- In Article 3 and refugee protection cases involving non-state actor harm, the correct question is whether there is a real risk the home state will fail to provide reasonable protection, not whether protection is reasonably likely to be available.
- The “real risk” standard applicable to protection cases is significantly lower than the civil standard of balance of probabilities and can be satisfied by a probability as low as 10%.
- Country guidance cases must be interpreted consistently with the established low standard of proof in protection law; literal readings that would impose a higher standard are impermissible.
- A respondent facing deportation need not exhaust domestic remedies or apply for protective programmes while in the UK before his claim can be assessed.
Why It Matters
This decision clarifies a significant ambiguity in how country guidance cases should be applied in Article 3 claims, particularly where protection depends on access to specific programmes in the receiving state. It confirms that the lower standard of proof in refugee and Article 3 cases applies not only to the assessment of past events and prospective harm, but also to whether state protection mechanisms will actually be accessible to the individual. The Upper Tribunal’s reinterpretation prevents country guidance cases from inadvertently elevating the burden of proof in protection claims above the established threshold, which would contravene binding House of Lords authority in Horvath and Bagdanavicius.
For practitioners handling deportation cases involving criminal gang persecution and witness protection programmes, this decision underscores that the availability of formal protective mechanisms must be assessed under a real-risk standard, and that evidence of past difficulties accessing such programmes, criminal records, or mental health factors that may affect admission decisions are material to whether the individual faces a real risk of unprotected persecution on return.