Practice and Procedure


PUBLISHED February 7, 2003

The fact that the appellant had not shown a Refugee Convention reason in support of her application for asylum was no answer to her claim under Art.3 European Convention on Human Rights.Appeal from the decision of the Immigration Appeal Tribunal ('IAT') on 10 July 2002 to dismiss the appellant's appeal from the decision of the special adjudicator to dismiss her appeal from the secretary of state's refusal to grant asylum and rejection of her application on human rights grounds. The appellant ('B') had arrived from West Kingston, Jamaica, and was granted leave to enter the United Kingdom as a visitor for six months. In April 2001 B applied for asylum on the basis that she was afraid to return to Jamaica because her family were suspected of being informants and had been subjected to violence by gangs associated with the two main political parties. Three of B's cousins had been murdered, her family house had been burnt down, and her daughter had received threats directed at the whole family. There was expert evidence before the special adjudicator stating that in Jamaica informers were regarded as the lowest form of life who ran very high risks, that politically motivated gangs enforced loyalty through violence, and that the police did not provide adequate protection. The special adjudicator rejected the asylum claim on the basis that B had not shown that she would be persecuted for membership of a social group or for political opinion and that the over zealous security forces provided sufficient protection, and rejected the human rights claim for the same reasons. Leave to appeal to the IAT was granted on the basis that the special adjudicator had not given sufficient reasons. The IAT rejected the challenge on the basis that consideration of the sufficiency of protection was of no relevance and B had failed to discharge the burden of proof that she would be persecuted for a Refugee Convention reason or would be subjected to ill treatment that would breach her rights under Art.3 European Convention on Human Rights. B argued that the IAT had not given proper or any reasons for rejecting her human rights claim. The secretary of state argued that: (i) the IAT had in fact found that there would be sufficient protection and, as the test under the Refugee Convention was the same as that under Art.3 of the Convention, the determination should stand; and (ii) the fact that the criminal law system and police force were not always effective in controlling gangs did not mean that there was insufficiency of protection.HELD: (1) The fact that B had not shown a Refugee Convention reason, so could not claim asylum, was no answer to her Art.3 claim. The IAT had not dealt satisfactorily with the sufficiency of protection issue. This was reason enough for the decision to be reconsidered. The fact that security forces in Jamaica were over zealous did not mean that they could provide sufficient protection. (2) Whether the test for the purposes of Art.3 was the same as for the Refugee Convention was not decided. However, the decision in Secretary of State for the Home Department v Krepel (2002) EWCA Civ 1265 should be considered by any tribunal or court having to decide the point, even though it was a decision on a renewed application for permission to appeal.Appeal allowed. Matter remitted to the IAT.

[2003] EWCA Civ 227