- BY Sonia Lenegan
Upper Tribunal gives guidance on assessing well-founded fear under the Nationality and Borders Act
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Almost two years after changes were made by the Nationality and Borders Act 2022 to the standard of proof, we have our first reported decision from the Upper Tribunal on how the assessment of whether a person’s fear of persecution is “well-founded” should be carried out. The case is JCK v Secretary of State for the Home Department (Botswana)[2024] UKUT 100 (IAC).
The standard of proof before and after the Nationality and Borders Act
For a full explanation of the changes I recommend our training module on ‘A new split standard of proof‘. Essentially, the previous position was that the standard of proof for deciding whether a person’s fear was well-founded was “a reasonable degree of likelihood”.
Section 32 of the Nationality and Borders Act 2022 split this so that two different standards of proof are applied across different stages. First, the decision maker must decide whether the person has a relevant characteristic that could cause them to fear persecution and whether they do fear persecution as a result of that characteristic. The standard of proof for this was increased to “balance of probabilities” (section 32(2)).
If the test is met for section 32(2) then the decision maker must consider whether, to the lower “reasonable degree of likelihood” standard, the person would be persecuted and whether state protection would be available (section 32(4)).
Background
The appellant claimed asylum on 3 August 2022, just after the new standard of proof was brought into effect with the Nationality and Borders Act 2022 on 28 June 2022 (subject to the transitional provisions for those who contacted the Home Office before that date).
His claim was based on the risk of persecution that he would face as a born again Christian in Botswana as well as for his imputed political opinion/race. His claim was rejected on 10 February 2023. The Home Office accepted that he was a born again Christian and member of a tribe as claimed, but did not accept that he would face persecution for those reasons, and even if he did he could relocate internally within Botswana or the government could provide protection.
The First-tier Tribunal rejected his appeal and the appellant appealed on the grounds that the tribunal had erred in its approach to the different standards of proof under the Nationality and Borders Act 2022. The Upper Tribunal dismissed the appeal but provided some useful guidance on how the standard of proof should be assessed under section 32 of the Nationality and Borders Act 2022.
The Upper Tribunal’s decision
The Upper Tribunal explained that there are five questions set out in section 32 and these should be addressed in the order they appear. Paragraph 25 is key and states the following:
The proper approach to s32 is then to address each question expressly and sequentially. If a matter is agreed, that simply needs to be recorded by a single sentence. Addressing each question under a separate heading will aid decision-makers in identifying matters in issue between the parties, and setting out competing arguments and conclusions. Moving between the varying standards is an intellectual exercise which will require discipline, but it does not, cannot, change what decision-makers have always done in taking an ultimate, holistic view of the evidence. It is not possible to evaluate subjective fear – and in many cases Convention ground – without having some regard to the context in which that fear is said to arise. Decision makers will therefore need to consider the country background material twice over. In evaluating the matters raised in s32(2) that material will provide vital context to deciding whether, on a balance of probabilities, the tests are met. The decision-maker must then revisit that material afresh when considering s32(4), and apply the lower refugee standard of proof to the question of risk. This may prove laborious, but it is necessary in order to avoid conflating the matters of subjective fear and actual risk, or conversely, to avoid overlooking important context.
The tribunal also said that even where the earlier conditions are not met, a “belt and braces” approach that still goes on to consider and decide the rest of section 32 is sensible given any onward appeals that may take place.
Headnote
1. Sections 31-36 of the Nationality and Borders Act 2022 apply in an appeal where the claim for international protection was made after 28 June 2022.
2. In an appeal to which s32 NABA 2022 applies, the proper approach is to address each of the questions posed by the section expressly and sequentially.
3. Question 1 is whether, on the balance of probabilities, the claimant has a characteristic which could cause them to fear for one of the five reasons set out in the Refugee Convention. In simple terms: is there a Convention reason?
4. Question 2 is whether, on the balance of probabilities, the claimant “does in fact fear” such persecution. This is the ‘subjective fear’ test.
5. Questions 3-5 are matters of objective evaluation and must each be determined on the lower standard of proof: ‘a reasonable degree of likelihood’. Is it reasonably likely that there is:
– a risk of harm
– an absence of state protection, and
– no reasonable internal flight alternative
Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.
Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.
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