Court of Appeal allows Home Secretary’s appeal after tribunals fail to justify departure from country guidance case

The Home Secretary has succeeded in an appeal to the Court of Appeal where the First-tier Tribunal’s decision was overturned for a failure to provide sufficient reasons for departing from a country guidance case, only for the Upper Tribunal to then fall into the same error. The case is Secretary of State for the Home Department v PG [2025] EWCA Civ 133.

Background

PG is a Sri Lankan national who entered the UK as a student in January 2008. In 2012 PG was convicted of five offences of sexual activity with a child and sentenced to four years’ imprisonment and a Sexual Offences Prevention Order was made. While in prison, PG claimed asylum and had his substantive interview in March 2012, stating that he was a gay man and his life would be at risk if he was deported to Sri Lanka.

He was served with a notice under section 72 of the Nationality, Immigration and Asylum Act 2002, stating that as he had committed a particularly serious crime there was a presumption that he was a danger to the community and that if that presumption was not rebutted he would be excluded from the protection of the Refugee Convention under article 33(2).

PG’s response to the notice reiterated that he would be at risk in Sri Lanka as a gay man, but did not address the presumption that he was a danger to the community. On 3 August 2013 his asylum claim was refused because he was excluded from the Refugee Convention under article 33(2).

The decision letter said that if it was not for that then he would have been granted refugee status because of the risk he would face as a gay man in Sri Lanka. Because of this, on 11 October 2013 PG was granted six months’ discretionary leave, presumably under the restricted leave policy.

On 11 April 2014 PG applied to extend his leave, relying on his asylum claim and article 3 ECHR. No decision was taken on that application and on 19 January 2017 PG was told that the section 72 presumption was being maintained and that a decision had been made to deport him. He was told that he could make representations in relation to that decision and that those would be considered along with his outstanding application for further leave. PG was also told that consideration was being given to whether the situation in Sri Lanka had changed such that he would no longer be at risk there.

Representations were submitted on PG’s behalf arguing that he was not a danger to the community and that his deportation to Sri Lanka would breach article 3. On 3 May 2017 PG’s application for further leave was refused and he was told that the decision to deport him had been maintained as he had not rebutted the presumption of dangerousness. The decision letter also said that his deportation would not involve a breach of article 3 and reference was made to the country guidance case of LH & IP (gay men: risk) Sri Lanka CG [2015] UKUT 73 (IAC) which said that “in general the treatment of gay men in Sri Lanka does not reach the standard of persecution or serious harm”.

The appeals

PG appealed to the First-tier Tribunal which concluded that evidence that post-dated LH & IP indicated that it would not be safe for PG to return to Sri Lanka and allowed his appeal. The Upper Tribunal allowed the Home Secretary’s appeal against that decision on the grounds that the First-tier Tribunal had not provided sufficient reasons for departing from the country guidance case.

The Upper Tribunal re-heard the appeal and allowed PG’s appeal. The judge stated “I do not feel confident in the guidance given in LH & IP to the extent that it relies on there being no prosecutions because there have been prosecutions leading to a very small number of convictions”. The judge then stated that the “possibility of prosecution undoubtedly gives disreputable police officers a lever over potential offenders which can be a short route to persecutory behaviour”. The judge dismissed other arguments made on behalf of PG.

The Home Secretary appealed to the Court of Appeal, submitting that “the UT failed to identify and apply the correct legal principles when considering whether PG’s deportation would breach Article 3 ECHR, and/or failed to provide legally adequate reasons as to the application of those principles”.

The Court of Appeal considered that it was not clear from the judgment that the Upper Tribunal had “sufficiently analysed the evidence which had been considered by the UT in LH & IP, in order to be in a position to properly determine whether the further evidence which had been placed before him on behalf of PG, did provide sufficiently strong grounds for departing from the country guidance in that case”. The appeal was remitted to the Upper Tribunal.

Conclusion

The Court of Appeal concluded with a reminder to representatives of the importance of maintaining a focus on the correct approach when seeking a departure from a country guidance case:

74. Before leaving this case, I would like to acknowledge that UT Judge Perkins is highly experienced in this field, and note that the time which he took in promulgating his decision, some 18 months from the hearing, whilst too long, may also reflect the approach which was taken on behalf of PG in presenting the evidence to him. In this regard, we were asked to admit almost 1000 pages of unagreed further evidence, which we refused as it was clearly not of relevance for the purposes of this appeal.

75. As was pointed out earlier in the judgment, where it is proposed to seek to depart from country guidance, it is necessary for a careful analysis of what evidence exists, beyond that which had already been considered by the UT when giving the guidance, and it is only that evidence which it is likely to be necessary to be provided to the tribunal to enable it to determine whether the it provides sufficiently strong grounds for not following the guidance. Although to date this has not been the approach adopted on behalf of PG, it is one which should now be adopted.

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