United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI- 2024-005669
	First-tier Tribunal No: HU/02156/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 17 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE SMITH

DEPUTY UPPER TRIBUNAL JUDGE P LEWIS

 

Between

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

KM

[ANONYMITY DIRECTION MADE]

Respondent

Representation :

For the Appellant: Mr M Parvar, Senior Home Office Presenting Officer

For the Respondent: Mr D Chirico KC, Counsel instructed by Bindmans LLP

 

Heard at Field House on Tuesday 11 February 2025

 

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant (KM) is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant. Failure to comply with this order could amount to a contempt of court.

The reason for the continuation of the anonymity direction is the risk which the Appellant claims to face in Jamaica. We make clear that it is not to protect the Appellant's identity as a criminal offender.

DECISION AND REASONS

 

BACKGROUND

1.       This is an appeal by the Secretary of State. For ease of reference, we refer to the parties as they were in the First-tier Tribunal. The Respondent appeals against the decision of First-tier Tribunal Judge G Baffa promulgated on 17 October 2024 ("the Decision") allowing the appeal on human rights grounds (Article 3 ECHR) on the basis that the Appellant would be at risk on return to Jamaica. The Judge did not find it necessary to determine the Appellant's appeal on Article 8 ECHR grounds. For completeness, we also record that, although the Appellant claims to be at risk on return to Jamaica, he has not claimed asylum.

2.       The Appellant is a national of Jamaica. He came to the UK in 2006 with entry clearance for six months. He was granted leave to remain in 2008 until 2012 which leave was extended to August 2020.

 

3.       The Appellant was convicted of driving offences and then drug related offences in 2014. On 18 November 2022, the Appellant was convicted of two offences of being concerned in the supply of Class A drugs and sentenced to four years and eleven months in prison. As a result of that offending, the Appellant's application for further leave was rejected by a decision dated 7 November 2023 refusing the Appellant's human rights claim and notifying him that he would be deported to Jamaica. The refusal of the human rights claim is the decision here under appeal. The Respondent has also made a supplementary decision as directed by the First-tier Tribunal in response to the Article 3 claim.

 

4.       The Appellant claims that on return to Jamaica he will be at risk from organised criminal gangs (OCGs). Although never personally threatened or harmed, the Appellant comes from a family who he says have a high profile in Jamaica as "gang informers" and it is as a result of his family association that he will be at risk on return. The Appellant's grandmother is in the UK. In 2003, her appeal against removal was allowed by the Court of Appeal based on a risk on return to Jamaica. In 2006, the Appellant's mother's and aunt's appeals were allowed by the Tribunal. In 2019, the Appellant's great-uncle's appeal was allowed by the First-tier Tribunal. The Appellant's mother was granted leave to remain as recently as October 2021 and his great-uncle was granted indefinite leave to remain on humanitarian protection grounds in February 2024. One of the Appellant's relatives (his uncle) remains in Jamaica but is said to be confined to his home.

 

5.       The Appellant has returned to Jamaica on two occasions since coming to the UK, once for a funeral of a family member and once to attend a festival. We come to more detail about those visits below.

 

6.       The Judge set out the detail of the previous determinations of the family's appeals at [§49] to [§64] of the Decision. The Appellant relied in his appeal on an expert report of Dr Damion Blake dated 28 June 2024 ("the Expert Report"). The Judge set out what he saw as the relevant passages from the Expert Report at [§65] to [§68] of the Decision.

 

7.       The Judge was referred by the Appellant's representative and the Respondent's supplementary decision letter to the Country Policy and Information Note entitled "Jamaica: Fear of organised criminal groups" Version 4.0 dated July 2022 ("the CPIN"). The Judge referred to the CPIN at [§104] of the Decision.

 

8.       The Judge found that the Appellant would be at risk from OCGs as a result of his family association ([§101] and [§102] of the Decision). He did not accept that the passage of time would have attenuated that risk. He also did not place weight on the fact that the Appellant had returned to Jamaica for two visits ([§103]). He found at [§105] and [§107] of the Decision that there would not be a sufficiency of protection, and that the Appellant could not internally relocate within Jamaica to avoid the risk. He therefore allowed the appeal.

 

9.       The Respondent appeals on two grounds summarised as follows:

 

Ground one: the Judge failed to have regard to or direct himself in accordance with relevant country guidance, namely AB (Protection - criminal gangs - internal relocation) Jamaica CG [2007] UKAIT 00018 (" AB (Jamaica)").

 

Ground two: the Judge failed to "properly grapple" with evidence and/or failed to give adequate reasons for his conclusions in relation to that evidence. In particular, it is said that the Judge did not give weight to (1) the Appellant's visits to Jamaica or (2) the fact that the Appellant's uncle had remained in Jamaica for a lengthy period without incident. It is also said that the Judge gave inadequate reasons to explain his conclusions that there would not be a sufficiency of protection in Jamaica and that the Appellant could not internally relocate to avoid the risk.

 

10.   Permission to appeal was granted by First-tier Tribunal Judge Monaghan on 5 December 2024 in the following terms:

 

"..2. Despite careful and detailed fact finding by the Judge, the Judge arguably fails

to consider or apply the relevant Country Guidance case law set out in AB (Protection - criminal gangs-internal relocation) Jamaica CG [2007] UKIAT 00018 in relation to internal relocation and/ or makes inadequate findings in relation to this issue. Whilst the Judge did consider and make a finding that the Appellant would not be admitted to the Witness Protection Programme, he arguably failed to consider the question set out in AB at paragraph 164 namely

" What, however, would be the position of a person who would not be admitted to the Witness Protection programme? Here the first question to be asked is whether it is reasonably likely they will be traced and targeted in their new place of residence. As already indicated, we do not consider that, except in high profile cases, such persons would face a real risk of being detected by criminal gangs based within the KMA or other inner-city urban areas."

3. In relation to Ground 2 the Judge arguably made inadequate findings in relation to the Appellant's two trips to Jamaica in which he accepted that he came to no harm, stating only that he did not place any real weight on them because they were for a limited time and with little exposure. The Judge arguably fails to consider or make sufficient findings about the evidence of the Appellant in which he stated that he visited to attend family events which took place in public settings. The Judge also arguably failed to grapple with the evidence that his Uncle lived in Jamaica for over 20 years and the credibility of the suggestion that he did so in hiding for that period of time."

 

11.   The Appellant filed a detailed Rule 24 Response on 8 January 2025 seeking to uphold the Decision.

 

12.   The appeal comes before us to decide whether there is an error of law. If we determine that the Decision does contain an error of law, we then need to decide whether to set aside the Decision in consequence. If we set the Decision aside, we must then either re-make the decision or remit the appeal to the First-tier Tribunal to do so.

 

13.   We had before us a bundle running to 693 pages containing the documents relevant to the appeal to this Tribunal, and the Appellant's and Respondent's bundles before the First-tier Tribunal. We refer to documents in that bundle as [B/xx]. We also had a skeleton argument from Mr Chirico KC and a supplementary bundle filed by the Appellant's solicitors running to 89 pages to which we refer below as necessary as [SB/xx].

 

14.   Having heard from Mr Parva and Mr Chirico KC, we indicated that we would reserve our decision and provide that with our reasons in writing which we now turn to do.

DISCUSSION

15.   We follow the order in which Mr Parva took his submissions, beginning with the second ground.

 

Ground Two

16.   The Judge made a finding about the Appellant's visits to Jamaica at [§103] of the Decision as follows:

 

"I note the submissions made by Miss Olukoya in relation to the two trips made by the appellant. I do not place any real weight to the same. The appellant, and I accept, attended on two occasions but for a limited time and with little exposure. There is nothing in the submission that avoids or eliminates the risk to the appellant."

 

17.   Mr Parvar submitted that, given the reasons for the visits, one of which was for pleasure rather than obligation and that these had involved public events, the Judge had not adequately considered the evidence or explained why he had reached the conclusion he had.

 

18.   As Mr Chirico submitted and Mr Parvar accepted, the findings made in relation to this, and the other aspects of the case have to be read in the context of the entire Decision and the evidence which the Judge had from the Appellant and his family members.

 

19.   As the Respondent's grounds note, the Respondent's submission about the importance of the visits is recorded at [§84] of the Decision. The submission for the Appellant is recorded at [§76] of the Decision as follows:

 

"In response to the submission made on behalf of the respondent as to the said significance of the appellant's two trips to Jamaica, Mr Chirico referred me to the fact that the appellant's grandmother has made three trips yet her statement went unchallenged."

 

20.   The Appellant's evidence about the visits to Jamaica is at [§54-57] of his statement at [B/74-75]. In short summary, he visited Jamaica first in 2018 for a family funeral. He stayed at the house of his grandmother's sister, which is outside West Kingston, went only to the funeral and did not attend the wake. The second visit was to attend a festival with a friend. They stayed in a tourist resort and then a security-guarded apartment. The Appellant says that he would have liked to visit his grandfather and uncle but did not do so for fear for his safety. He also points out that visiting for no more than a couple of weeks as a visitor would be very different from living in Jamaica permanently when his daily dealings with the authorities and others would risk the OCGs tracing him. The Judge recorded at [§37] of the Decision that the Appellant's oral evidence about the visits was broadly consistent.

 

21.   As Mr Chirico also pointed out in his submissions as before Judge Barra, the Appellant's grandmother who is accepted to be at risk in Jamaica has herself made three trips back to that country.

 

22.   At [§47] of the Decision, the Judge said this about the evidence of the Appellant's grandmother:

 

"I note the contents of the unchallenged evidence of the appellant's grandmother. In her statement she states that only one of her living children resides in Jamaica, the others are all in the UK having fled due to the risk from gangs. She describes the experiences of her son in Jamaica (paragraphs 8-12 inclusive). I repeat, this evidence was unchallenged. Importantly she also describes the three trips she has undertaken to Jamaica. These are particularly important due to the submissions made by the respondent regarding the trips made by the appellant."

 

23.   The Judge was entitled to take into account that the Appellant's grandmother had herself visited Jamaica notwithstanding the risk which she is accepted to face there. On that basis and having regard to the Appellant's evidence about the visits, the Judge was entitled to make the finding he did that the limited time which the Appellant spent in Jamaica during his visits and lack of public exposure meant that these visits did not impact on the question of risk. Whilst brief, the reasons given are adequate.

 

24.   In terms of the Appellant's uncle's continued residence in Jamaica, that is dealt with by the Judge's consideration of the evidence of the Appellant's grandmother as above. The evidence is set out in her witness statement at [B/81] in the paragraphs to which the Judge refers. Whilst Mr Parvar was entitled to draw attention to the fact that the Appellant's credibility was challenged, as the Judge observed at [§47] of the Decision, the evidence of the Appellant's grandmother was not challenged. As such, the Judge was entitled to accept that the Appellant's uncle had remained in hiding in Jamaica even though this was for a very lengthy period.

 

25.   We are for those reasons satisfied that the Judge has not erred in his consideration of these aspects of the Appellant's case. Weight given to evidence is a matter for the Judge dealing with it absence error of law. There is no error of law identified by the Respondent's second ground in this regard.

 

26.   The Judge's conclusion as to sufficiency of protection and internal relocation is at [§107] of the Decision as follows:

 

"I am also satisfied that he would not be able to seek sufficient protection and safely relocate."

 

That however is the conclusion and not the entirety of the Judge's consideration of those issues. There is however a significant overlap between the Judge's reasoning on these issues and the Respondent's first ground to which we therefore now turn.

 

Ground One

 

27.   Although neither party took us to AB (Jamaica) in the course of submissions other than by reference to paragraph numbers, it is helpful if we set out the headnote of that decision:

 

"The authorities in Jamaica are in general willing and able to provide effective protection. However, unless reasonably likely to be admitted into the Witness Protection programme, a person targeted by a criminal gang will not normally receive effective protection in his home area.

Whether such a person will be able to achieve protection by relocating will depend on his particular circumstances, but the evidence does not support the view that internal relocation is an unsafe or unreasonable option in Jamaica in general: it is a matter for determination on the facts of each individual case."

 

28.   As we understood Mr Chirico to accept, the decision in AB (Jamaica) was clearly relevant and the Judge could have been expected to mention it whether referred to it or not. He also pointed out to us that at [§1(e)] of his Note of Evidence at [SB/2-5] (which was before the Judge) he had referred to AB (Jamaica) albeit not by name and case reference but only as being "still extant Country Guidance on Jamaica". The Judge would however have been alerted to the existence of the country guidance whether he was referred to it by either party or not.

 

29.   The CPIN to which the Judge himself refers at [§104] of the Decision also makes extensive reference to AB (Jamaica), particularly in the context of protection and internal relocation (see sections [2.5] and [2.6] of the CPIN at [SB/6-89]). The CPIN is also referred to in the Respondent's supplementary decision letter (following the Article 3 claim being made) at [B/677-684]. The Judge therefore had evidence before him to which he was referred itself referring to the relevant country guidance.

 

30.   Whilst Mr Parvar accepted that the Respondent had herself not referred expressly to AB (Jamaica) either in the decisions under appeal or submissions, Mr Chirico for his part accepted that the Judge should have referred to it. However, as Mr Chirico submitted and we accept, the decision in AB (Jamaica) is country guidance only for the points in the headnote.

 

31.   Although it would have been open to the Respondent to make reference to other parts of the decision had she wished to rely upon them (as did Mr Parvar in his submissions before us), the Judge would be entitled to confine himself to the headnote absent express reliance by either party on evidence or more detailed findings on that evidence as contained within the decision itself.

32.   The Judge dealt with the CPIN at [§104] of the Decision as follows:

"I have also had regard to the CPIN referred to above. At paragraph 2.4.1 it reads:

In general, a person who is not involved in or connected to gang-related activity will not be at real risk of serious harm of persecution from an OCG. However, if a person is able to establish that they are of interest to an OCG because of their particular circumstances, decision makers must consider whether the OCG's intent, capability and reach are such that there is a real risk of serious harm or persecution. Each case must be considered on its own facts, with the onus on the person to demonstrate that they are likely to be subject to serious harm or persecution."

 

33.   Having referred to that part of the CPIN, the Judge went on as follows:

"105. The CPIN also refers to the protection afforded by way of the Witness Protection programme. The appellant does not fall within the ambit of the programme. Further being in mind the evidence of Dr Blake (in line with the country expert evidence given in the prior family member cases) and the evidence in the round, it would only be a matter of time when any gang would establish the existence of the appellant in Jamaica and thus put him at risk wherever he is."

 

34.   That paragraph has to be read with [§102] of the Decision where the Judge makes his findings about the Expert Report. The Respondent's representative had made various criticisms of that report. The Judge rejected those, accepting Mr Chirico's submission that the concerns were "peripheral". Having accepted the Expert Report, he made the following findings based on that evidence:

 

"102....It is quite clear, and I accept that the passage of time is not something that the appellant can avail himself of, to avoid the risk to him. I accept the evidence of Dr Blake, as set out in paragraph numbered 38 of his report. I also accept his evidence that the appellant will not be able to live in Jamaica without soon word getting round and putting him at serious risk. Miss Olukoya submits that the prior decisions are historic. That may well be factually true, but the common theme and risk arising remains. It is of note that the appellant's great uncle was granted protection in 2019 and the appellant's mum afforded a further period of refugee leave as recently as 2021. The passage of time is therefore not a factor to which I place any real weight."

 

35.   We were referred to [§65] to [§68] of the Decision where the Judge dealt with and cited from the Expert Report. Mr Parvar submitted that the evidence in the Expert Report was based on broad assertions which were in certain respects similar to evidence rejected in AB (Jamaica). Leaving aside that this was not apparently a criticism raised before Judge Barra and that Judge Barra was not therefore obliged to refer to the underlying detail of AB (Jamaica) when making his findings, we do not accept Mr Parvar's submissions. The point being made at [§19] and [§21] of the Expert Report as cited at [§65] and [§66] of the Decision is not that referred to at [§185] of AB (Jamaica). Dr Blake's point concerns the police attitudes to deportees as regards their protection and not the risk to deportees as such.

36.   Similarly, although Mr Parvar said that the Decision was inconsistent with [§164] of AB (Jamaica), we do not accept that submission. In that paragraph, the Tribunal implicitly accepted that, in a high-profile case, a person's whereabouts might become known leading to risk from an OCG. The same goes for what is said at [§158] of AB (Jamaica) (that a gang would not have the reach or motivation to seek out individuals elsewhere in Jamaica except in a high-profile case). The Appellant himself is not, we accept, of that nature but his family is. It is the position of his family which gives rise to the risk to him. This is moreover very much the position set out in the extract from the CPIN to which the Judge refers at [§104] of the Decision.

 

37.   We accept as Mr Chirico submitted that Dr Blake had considered risk as well as sufficiency of protection and internal relocation in the context of the Appellant's case. The Judge was entitled to rely on that evidence when considering risk, sufficiency of protection and internal relocation.

 

38.   Ultimately, as both the headnote in AB (Jamaica) and the CPIN indicate, whilst there may in general be a sufficiency of protection against the risk from OCGs in Jamaica (following internal relocation if necessary), whether that exists depends on the particular circumstances of the case.

 

39.   Here, the Appellant belongs to a family who have been recognised across generations as at risk from OCGs as "gang informers". The Judge was entitled to rely on previous decisions in relation to the Appellant's family members as set out in extenso at [§50] to [§64] of the Decision. Based on those and the Expert Report, he was entitled to reach the conclusion he did that this was not a case where there would be sufficiency of protection in another part of Jamaica.

 

40.   Mr Chirico fairly accepted that the Judge should have referred to AB (Jamaica) at least as to the headnote. He also accepted that the Judge's reasoning was brief. It might have been preferable if the Judge had set out his reasoning as to sufficiency of protection and internal relocation in more detail. However, as Mr Chirico submitted and we accept, the Decision sufficiently explained why the Respondent lost and the Appellant won. Any error in that regard does not therefore affect the outcome.

 

41.   Whilst another Judge on the same facts and evidence might have reached the opposite conclusion as to the outcome of this appeal (as we might also have done), that is not the issue for us. The Respondent's grounds do not identify an error of law in the Decision. The error in failing to have regard to AB (Jamaica) makes no difference to the outcome given the Judge's reasoning. The Respondent's appeal therefore fails.

CONCLUSION

 

42.   For the reasons set out above, the Decision does not contain any material error of law. We therefore uphold the Decision with the result that the Appellant's appeal remains allowed.

NOTICE OF DECISION

The Decision of First-tier Tribunal Judge G Barra promulgated on 17 October 2024 does not involve the making of an error of law. We therefore uphold the Decision with the result that the Appellant's appeal remains allowed.

 

 

L K Smith

Upper Tribunal Judge Smith

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

13 February 2025