Is the First-Tier Tribunal (FTT) bound to take into account a Country Guidance (CG) case that is issued by the Upper Tribunal after the date of the FTT hearing, and after the date the FTT judge signs the determination, but before that determination is promulgated?

The short answer, in general, and for the very unfortunate appellant in NA (Libya) v Secretary of State for the Home Department [2017] EWCA Civ 143, is yes.

Timeline

The Libyan appellant in this case had been refused asylum and appealed against the decision to the tribunal. The appeal was heard by the FTT and allowed. The decision was made on the basis of information and guidance relating to the risks for certain Libyans returning home that existed and was applicable at the time.

Both parties and the tribunal were apparently aware that there was a CG case in the pipeline[3], heard by the Upper Tribunal several months previously in November 2013. Neither party applied to the tribunal to adjourn the hearing.

It is helpful to set out a timeline of the relevant events:

• 25 April 2014 – claim for asylum refused
• 20 June 2014 – appeal against decision heard by FTT
• 30 June 2014 – FTT judge signs NA decision, but determination not promulgated
• 14 July 2014 – new Upper Tribunal CG decision promulgated in relation to Libyan claims
• 16 July 2014 – FTT NA determination promulgated

For some reason, while the decision was signed off by the FTT judge on 30 June 2014, it was not formally sent out, or promulgated, until 16 July 2014. The Court of Appeal speculates that this was possibly due to administrative delay [4], but did not hear specific evidence on this point as it was not relevant to the legal issues raised in the case.

Either way, the delay meant that, by the time the new Libyan country guidance (AT and others (Art 15(c); risk categories) Libya CG [2014] UKUT 318 (IAC)) was issued on 14 July 2014, the FTT was still technically seized of the appeal.

Following Country Guidance

A FTT determination which fails to apply a relevant CG case will normally be vitiated by an error of law: R (Iran) v SSHD [2005] EWCA Civ 982 (see para 27).

However, an FTT decision which is inconsistent with a CG case will generally not contain an error of law (for that reason) where the FTT determination is promulgated prior to the issue of new country guidance: SA (Sri Lanka) v SSHD [2014] EWCA Civ 683 (per Patten LJ at paras 12-13).

What about if the decision has clearly been arrived at by a judge (as evidence by a dated signature), but the tribunal administration has not got around to sending it out (promulgation)?

The Court of Appeal rejected attempts by NA to argue that the decision was ‘made’ on the date of the signature [29-30], following the case of SSHD v RK (Algeria) [2007] EWCA Civ 868 (see paras 24- 25) to hold that the FTT remains seized of a case until such time as the determination is promulgated.

Unfairness not enough

The court acknowledged that this interpretation created unfairness to the appellant in this case, who was two days away from an allowed refugee status appeal decision (subject to any onward challenge by the Secretary of State) before the law effectively changed, had to wait almost three years for the Court of Appeal to decide the legality of the promulgation issue, and must now inevitably endure further delay in the tribunal system while his case is listed for a fresh hearing.

The Court of Appeal satisfied itself, however, and with apparently no hint of irony, that [32]:

given the requirement in Rules 22 and 23 of the [tribunal procedure] Rules, that the Tribunal send its determination to the parties not later than 10 days after the hearing finishes, it is unlikely that there will be a recurrence of the problem which occurred in the present case.

With perhaps greater plausibility, Flaux LJ, giving lead judgment, also suggests that were the boot on the other foot (if NA’s appeal had been dismissed, and country guidance was issued before promulgation of the dismissal which was favourable to him), the appellant would be arguing the opposite: that it would have been unfair not to have interpreted the law in this way [33].

Further argument that the error of law was not material as NA anyway fitted within the parameters of the new country guidance case was rejected. The case will continue, at some stage, in the First Tier Tribunal.