M v Secretary of State for the Home Department (Lithuania)

(a) The adjudicator's finding in paragraph 28 that there is a real possibility that the claimant may not have the full protection of the witness protection scheme is directly contrary to what the adjudicator had previously found in paragraph 23 of the determination (which we have set out above) that the witness protection scheme afforded protection to witnesses and that the scheme was available to the claimant. It was for this reason that the adjudicator considered there was a sufficiency of protection in Lithuania within the principles of Horvath .

(b) The reference to Article 8 being much lower than the threshold of Article 3 clearly indicates that the adjudicator was applying a lower threshold than that necessary for Article 3. It is also apparent that it was his lower threshold by which the adjudicator was making her assessment of conditions in the receiving state, Lithuania. This is a clear error in law because it fails to pay regard to the decision of the Court of Appeal in Ullah and Do [2002] EWCA Civ 1856 .

Decision: The appeal at the Secretary of State is allowed. The finding that the claimant had established that his return to Lithuania would be a violation of his human rights is set aside. Permission to cross-appeal is refused.