Immigration briefing: a note on the status of “country guidance” in asylum cases, and possible approaches on behalf of clients depending how it applies in their situation

So-called “country guidance” determinations have become a central feature of asylum cases in the UK. These are cases identified by the Upper Tribunal as involving appropriate circumstances for guidance to be provided (often in relation to a particular issue or group) on the situation in a specific country.

For example, the recent case of HB (Kurds) CG [2018] UKUT 430 (IAC) focused on the position of Kurds engaged in political activities in Iran, while the case of AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC) was more general in its nature, addressing the security situation throughout Iraq and whether it reached the threshold of article 15(c) of the Qualification Directive: whether a civilian would be at risk solely on account of their presence in a particular territory. Evidence will often be heard from numerous country experts in a hearing which can last multiple days.

Status

The status of country guidance is set out in the practice direction for the Immigration & Asylum Chamber of the First-tier and the Upper Tribunal, at part 12 (para 12.2) as: “an authoritative finding on the country guidance issue identified in the determination… As a result, unless it has been expressly superseded or replaced by any later ‘CG’ determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is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”.

The courts have affirmed the status of country guidance in various cases, by confirming that departure from country guidance will amount to an error of law without good reason explicitly stated (R (Iran) v SSHD [2005] EWCA Civ 982), and that “very strong grounds supported by cogent evidence” require to be given by a judge in order to justify departure (SG (Iraq) v SSHD [2012] EWCA Civ 940).

This status can often give the impression that country guidance determinations which have not been superseded are insurmountable. Indeed, a large volume of evidence may be required in order to displace country guidance in relation to, for example, article 15(c) – this has proved to be the case in many cases in our experience. Judges can be reluctant to go behind country guidance. Therefore, a suggested approach is to consider the case at hand in line with the following:

  • Do your client’s particular circumstances mean that they fit within the country guidance, and are they at risk on return by reason of such?
  • If not, do your client’s particular circumstances distinguish their case from the country guidance in order that it is inapplicable (or that they fit within an exception to the guidance)?
  • Failing which, is there evidence that the situation has changed since the country guidance was issued, i.e. a change in the country conditions, meaning that it ought no longer to be relied on?

Scenarios

Proposition 1 is of course the ideal scenario for any client. While the burden rests with the asylum seeker in proving their case to a “reasonable degree of likelihood” (the lower standard of proof which applies in asylum cases), if an individual can succeed in showing their case fits within the country guidance in a particular area, it becomes much more difficult for the Home Office to maintain that they will not be at risk on return.

In terms of proposition 2, there can be a tendency to extend country guidance to circumstances in which the facts are not on all fours (or where they clearly do not apply). For example, in BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC), which relates to the political activities of Iranians in the UK (attendance at demonstrations), the Home Office arguably too readily applies this guidance to Iranian Kurds and also, on one very odd occasion, to an Ethiopian case. This is despite the fact that the appellant in BA was not Kurdish (potentially pivotal in light of the heightened scrutiny which exists in Iran in relation to Kurds). These slight and subtle differences can be central to a case.

Finally, one other important point relates to the “headnote” which is produced at the beginning of the case summarising the guidance provided. It should be noted that the Court of Appeal has held that the headnote itself is not the guidance, nor is it part of the determination (see PO (Nigeria) v SSHD [2011] EWCA Civ 132 at para 55). It is therefore important that practitioners be aware of the full terms of a country guidance determination (which admittedly can run to over 100 pages), as there can be many helpful parts which are not included in the headnote but still have the status of country guidance.

The Author

Darren Cox, trainee solicitor, Latta & Co

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