Home Secretary v CP: Court of Appeal rewrites AB (Jamaica) country guidance on witness protection

The Court of Appeal has confirmed that the Upper Tribunal was entitled to correct a passage of country guidance that, read literally, would have required a claimant to prove more than the law demands, and has approved a reformulation of the headnote in AB (Protection, criminal gangs, internal relocation) Jamaica CG [2007] UKAIT 00018.

In Secretary of State for the Home Department v CP [2026] EWCA Civ 892, handed down on 10 July 2026, Sir Julian Flaux, with whom Popplewell and Elisabeth Laing LJJ agreed, dismissed the Home Secretary's appeal against the Upper Tribunal's decision allowing CP's Article 3 appeal.

A ten per cent chance of protection

CP is a Jamaican national whose mother gave evidence against a gang leader and entered the Jamaican witness protection programme with her family in 1997. CP came to the United Kingdom in 2001. His subsequent offending, culminating in a 2013 conviction on two counts of rape and an extended sentence of fourteen years, excluded him from the Refugee Convention under section 72 of the Nationality, Immigration and Asylum Act 2002. Article 3 was the only issue.

The headnote in AB states that a person targeted by a criminal gang will not normally receive effective protection in his home area "unless reasonably likely to be admitted" into the witness protection programme. Read literally, that would defeat a claim where the individual faced a ninety per cent probability of exclusion from the programme, provided a ten per cent prospect of admission survived. The First-tier Tribunal adopted precisely that reading, holding that the only question was whether admission was reasonably likely.

The Upper Tribunal (Bourne J and UTJ Hirst) held that this conflated the standard of proof with the Horvath standard of protection. The correct question is whether there is a real risk or reasonable possibility that a person targeted by criminal gangs will be unable to access reasonable protection, through the programme or otherwise.

Country guidance binds on fact, not law

Zane Malik KC for the Home Secretary argued that the Upper Tribunal had impermissibly rewritten country guidance and should instead have convened a fresh country guidance panel, relying on paragraphs 12.2 and 12.4 of the December 2018 Practice Direction and on SG (Iraq) v SSHD [2013] 1 WLR 41.

That submission was rejected as misconceived. A country guidance determination is authoritative on the evidence and operates as a presumption of fact in cases raising similar factual issues. It is not binding on the Upper Tribunal even as to fact, and certainly not on points of law. Where a legal interpretation embedded in country guidance conflicts with binding authority, the tribunal must give effect to the latter. Of the competing reformulations, the court preferred the wording the Home Secretary herself had advanced in the pending EP proceedings, and directed that the headnote and paragraph 155 of AB be amended accordingly.

Silence in the tribunal below

The second ground, that the Upper Tribunal had failed to consider internal relocation, fared no better. The Jamaican Ministry of National Security's letter of 13 September 2023 recorded a high probability of harm to CP and his family in Jamaica, an assessment specific to him and unconfined to Kingston and Westmoreland, unlike the generic findings in AB and the 2024 Country Policy and Information Note. That, the court observed, is no doubt why the presenting officer declined the tribunal's invitation to make further submissions on the point.

Counsel could not say that CP would be protected while any application for readmission to the programme was assessed. Citing Akhtar v SSHD [2024] EWCA Civ 354 and AL v SSHD [2026] EWCA Civ 370, the court held it is no ground of appeal that a tribunal failed to take into account matters it was never asked to consider, and declined to exercise the Singh v Dass discretion to admit the point.