JCK (Botswana) vs Secretary of State for the Home Department

This case concerned an appeal by JCK, a national of Botswana, against the decision of the First-tier Tribunal to dismiss his asylum claim based on persecution risks in Botswana.

TLDR:

• JCK, a Botswanan national, appealed against the refusal of his asylum claim.
• The First-tier Tribunal dismissed his appeal, questioning the credibility of his persecution claims.
• The Upper Tribunal examined the application of the Nationality and Borders Act 2022.
• The appeal was ultimately dismissed, but important legal principles were clarified.

The appellant, JCK, born in 1989, is a national of Botswana. He claimed asylum on August 3, 2022, asserting that he faced persecution from members of the Herero tribe due to his religious beliefs as a 'born-again' Christian and his refusal to assume a tribal leadership role.

The Secretary of State for the Home Department refused his claim on February 10, 2023, stating that while JCK's religious affiliation and tribal membership were acknowledged, the risk of persecution was not substantiated. It was argued that the Botswanan government could provide adequate protection or that JCK could relocate within Botswana.

The First-tier Tribunal dismissed JCK's appeal on August 30, 2023, finding inconsistencies in his account and concluding that he had not demonstrated a credible fear of persecution. The Tribunal applied sections 31-36 of the Nationality and Borders Act 2022, which mandates a two-limb test for assessing asylum claims.

JCK appealed to the Upper Tribunal, arguing that the First-tier Tribunal erred in its application of the varying standards of proof required by the Act. The Upper Tribunal, led by Judge Bruce, examined the procedural and substantive aspects of the case under section 32 of the Act.

The Upper Tribunal noted that the Act requires decision-makers to first determine, on the balance of probabilities, whether the asylum seeker has a characteristic that could cause them to fear persecution for a Convention reason and whether they genuinely fear such persecution. If these are established, the risk of persecution must then be assessed using the lower standard of proof, 'a reasonable degree of likelihood'.

In JCK's case, the Tribunal found that the First-tier Tribunal had correctly applied the two-limb test but had erred in its interpretation of the Convention ground. The First-tier Tribunal had improperly conflated the credibility assessment with the evaluation of the Convention ground.

Despite this error, the Upper Tribunal concluded that the overall decision was not materially affected. The Tribunal affirmed that the First-tier Tribunal had correctly applied the lower standard of proof when assessing the risk of persecution and found no substantial grounds to believe that JCK would face serious harm upon return to Botswana.

Ultimately, the Upper Tribunal dismissed the appeal, upholding the First-tier Tribunal's decision. The case underscores the importance of adhering to the procedural requirements of the Nationality and Borders Act 2022 in asylum appeals.

Legal representatives: Ms. G. Patel, Counsel instructed by Saxon Solicitors Ltd for the Appellant, Mr. A. Tan, Senior Home Office Presenting Officer for the Respondent.

Judicial Panel: Upper Tribunal Judge Bruce

Case Citation Reference: [2024] UKUT 100 (IAC)