ASO (Iraq) v Secretary of State for the Home Department
[2023] EWCA Civ 1282
JCK (Botswana) v Secretary of State for the Home Department
8 March 2024
[2024] UKUT 100 (IAC)
Upper Tribunal
Someone claimed asylum in the UK, saying they'd be harmed in their home country. A court decision explained the rules for proving this claim, which involve different levels of proof depending on what's being proven. Although a small mistake was made in the first court case, the higher court agreed with the final decision because the risk of harm was properly assessed.
Key Facts
- •JCK, a Botswanan national, appealed a First-tier Tribunal decision dismissing his asylum claim.
- •The claim was made after June 28, 2022, thus subject to sections 31-39 of the Nationality and Borders Act 2022 (NABA 2022).
- •JCK claimed persecution by fellow Herero tribesmen due to his Christian faith and rejection of tribal leadership.
- •The Respondent accepted JCK was Herero and Christian but denied risk of persecution or insufficient state protection.
- •The First-tier Tribunal dismissed the appeal, finding inconsistencies in JCK's account and lacking supporting evidence.
Legal Principles
Sections 31-36 of NABA 2022 apply to appeals where the claim was made after June 28, 2022.
NABA 2022
In appeals under s32 NABA 2022, each question must be addressed sequentially.
s32 NABA 2022
Question 1 (s32(2)(a)): Determine on the balance of probabilities if the claimant has a Convention ground characteristic.
s32(2)(a) NABA 2022
Question 2 (s32(2)(b)): Determine on the balance of probabilities if the claimant subjectively fears persecution.
s32(2)(b) NABA 2022
Questions 3-5 (s32(4)): Determine on the lower standard of 'reasonable likelihood' if there's a risk of harm, lack of state protection, and no reasonable internal flight alternative.
s32(4) NABA 2022
The 'refugee standard' of 'reasonable likelihood' is a lower standard than the balance of probabilities.
R v Secretary of State for the Home Department ex parte Sivakumaran [1988] AC 958, Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97
Outcomes
The Upper Tribunal dismissed the appeal.
While acknowledging an error by the First-tier Tribunal in failing to accept the Respondent's concession of a Convention ground, the Upper Tribunal found this error immaterial to the overall outcome. The Tribunal's assessment of risk, applying the correct lower standard of proof, was upheld.
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