What happens where the Upper Tribunal makes a mistake in a country guidance case?

And in what circumstances will the Court of Appeal have jurisdiction to hear an appeal against an Upper Tribunal decision that has already been remitted to the First Tier Tribunal?

Both of these interesting issues crop up in AA (Iraq) v Secretary of State for the Home Department [2017] EWCA Civ 944.

The Case of AA

AA was an Iraqi who claimed asylum in the UK in 2009. His appeal has now been in the court system for over 8 years (and counting).

The initial application was rejected and several appeals dismissed until AA benefited from a change in the country situation as reflected by the (then) new country guidance case of HM (Iraq) v. Secretary of State for the Home Department [2011] EWCA Civ 1536.

His case was partially conceded by the Secretary of State in the Court of Appeal (where it had by that point reached) and remitted to the Upper Tribunal, which identified AA as a country guidance case on the issue of the applicability of Art 15(c) Qualification Directive to Iraqi claims.

Although AA (Iraq) v SSHD [2015] UKUT 544 (IAC) was eventually promulgated as a country guidance case, the tribunal saw fit to remit the individual appeal back to the First Tier Tribunal for further fact finding.

It was against this decision that AA appealed to the Court of Appeal, on the basis that there was an error in one of the headnote findings. Unusually, the Secretary of State agreed that the appeal should be allowed on this narrow basis.

Jurisdiction

Strangely, given the foregoing, the Secretary of State argued that the Court of Appeal did not have jurisdiction to hear the case, on the basis that the decision to remit the appeal to the First Tier Tribunal was an interlocutory (not a final) decision of the Upper Tribunal for the purposes of s.13 Tribunals Courts and Enforcement Act 2007.

The court therefore lingers the longest in this chapter of AA (Iraq) on the question of whether or not it has jurisdiction to hear an appeal, a subject which leaves many light-headed and in need of a lie-down. Appropriately, perhaps, the relevant leading case is VOM (Error of law when appealable) Nigeria [2016] UKUT 410 (IAC).

In that case the court describes the various UT decisions which might be described as ‘intermediate in nature’, and which will not attract a right of appeal in themselves to the Court of Appeal (see paragraph 22 (g))

(i) A finding that the decision of the [FtT] was erroneous in law.

(ii) A determination, whether in tandem with or separate from (a), to set aside the decision of the FtT.

(iii) A determination, normally made in tandem with a positive set aside determination, of whether to remit the case to the FtT or retain it in the forum of the UT for the purpose of remaking the decision.

The court was persuaded that the present case should be distinguished from VOM, for both legal and practical reasons:

28. The Appellant in the instant case argues that there is a vital distinction between the situation in this case and the position in VOM. In the latter case, the UT still had to carry out the re-determination. The functions of the UT had not all been discharged, and thus the decision was incomplete. In the instant case, the appeal before the UT is complete. The matter has left the UT and once more lies before the FtT. When the FtT has made its redetermination there will arise a right of further appeal to the UT (if permission is granted), but there is no current appeal, and a renewed appeal to the UT may never happen. In that sense there has been “a decision of the UT which is finally dispositive of an appeal from the FtT” to quote the language of paragraph 34 in VOM. Any second appeal to the UT will be exactly that: a further appeal.

29. Moreover, the practical implications and difficulties which concerned the UT in VOM are materially different from those arising here. It may not often arise that parties will seek to appeal the UT at the same time as the case has been remitted to the FtT. And it will be rare that parties are agreed that there has been an error of law in Country Guidance, as here. Precisely because the judgment gives Country Guidance, such an error (if it be so) may be replicated across many other cases. Delay in addressing such an error may be very costly

In order to press home the point, Sales LJ and Irwin LJ break out the Latin, describing the Upper Tribunal as functus officio: the court has fully discharged its function, and therefore made an appealable decision.

The Secretary of State’s position is approached with some curiosity, as it would have prevented the court correcting the error in the country guidance, requiring the case to go back through the First Tier Tribunal and through again to the Upper Tribunal before it could be remedied, potentially leaving a trail of incorrectly decided Iraqi humanitarian protection cases in its wake.

The Court of Appeal demonstrates the intensity of its displeasure with this suggestion by departing from its boilerplate ‘merry-go-round’ metaphor, and describing the inevitable outcome of the Secretary of State’s position as a ‘pointless and wasteful legal gavotte’ (which, apparently, is a slow French dance).

Country guidance

Given the importance of country guidance cases, the legal error made (agreed by both the Secretary of State and the appellant in this case) was fairly significant. It concerned the importance of an Iraqi Civil Status Identity Document (“CSID”) which the Upper Tribunal treated simply as a document which could be used to re-enter Iraq rather than one that ‘may be an essential document for life’ there.  The Court of Appeal concludes that [39-40]

…[The CSID] is for practical purposes necessary for those without private resources to access food and basic services. Moreover, it is not a document that can be automatically acquired after return to Iraq. In addition, it is feasible that an individual could acquire a passport or a laissez-passer, without possessing or being able to obtain a CSID. In such a case, an enquiry would be needed to establish whether the individual would have other means of support in Iraq, in the absence of which they might be at risk of breach of Article 3 rights.

40. As the Appellant reminds us, decision-makers must take decisions on entitlement to protection within a reasonable period of time, and must not decline to address a material element of a claim such as this…The Secretary of State agrees with this analysis. Hence, it will be wrong indefinitely to postpone the enquiry.

The Court of Appeal opts to correct the legal error in-house, and republishes the country guidance headnote at the end of the judgment, the updated sections highlighted in bold.