Personal Immigration

Upper Tribunal Provides Guidance On Country Guidance

In what circumstances is it appropriate to depart from existing Country Guidance? And when is a failure to do so an error of law? These are the questions that the Upper Tribunal considered in the case of FA (Libya: art 15(c)) Libya CG [2016] UKUT 413 (IAC).

Tribunal Practice Note – Country Guidance

The Tribunal Practice Note states that:

“12.2 A reported determination of the Tribunal, the AIT or the IAT bearing the letters “CG” shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal, the AIT or the IAT that determine the appeal. As a result, unless it has been expressly superseded or replaced by any later “CG” determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:¬

(a) relates to the country guidance issue in question; and
(b) depends upon the same or similar evidence.”

And that:

“12.4 Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for appeal on a point of law”

Relevant facts and findings

The Appellant was a Libyan national who claimed asylum on 28 January 2015, with her husband and children as dependants. Her asylum claim was refused on 28 July 2015.

Her appeal to the First-tier Tribunal was heard by Judge Turnock. After hearing evidence, he refused their asylum claim, and went on to consider whether the threshold for ‘serious harm’ as defined by Article 15(c) of the Qualification Directive had been met and the appellants would therefore be eligible for humanitarian protection.

The existing country guidance on Libya was set out in AT and others Libya CG [2014] UKUT 318 (IAC), heard in November 2013, which found inter alia that “a Libyan’s mere presence in Libya would not expose him to risk of threatening his life or person”. Although Judge Turnock had material before him showing that there had been developments in the security situation in Libya since then, he declined to depart from the Country Guidance, on the basis that there was no direct comparison of the relevant material or analysis of the difference between them.

The Upper Tribunal stated that “there is no intention that the guidance should be followed when the situation in the country concerned has changed substantially since the guidance was issued.” It held that “deciding to follow the existing guidance in the face of a mass of new material simply because there was no comparison or analysis was…an error of law” and set aside the First-tier Tribunal decision.

It considered that there had been numerous changes in Libya since November 2013 which meant that the appeal did not depend upon ‘the same or similar evidence’ as was before the Tribunal in AT and others. This new evidence rendered AT and others unreliable and necessitated a new Country Guidance decision assessing article 15(c) risk. In the interim period, risk should be decided on a case-by-case basis on the evidence in each individual case.

Comment

This decision makes it clear that in some circumstances following Country Guidance, as well as departing from it, can amount to an error of law.

While consistency and certainty are to be valued, this should not lead to rigid adherence to Country Guidance, which is inevitably a static assessment of an issue. The Tribunal Practice Notes accommodate a level of flexibility to allow consideration of the individual circumstances of the case, with regard to contemporaneous developments and fresh evidence.

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