The latest Country Guidance case on Zimbabwe finds, in essence, that despite vociferous and violent pronouncements about homosexuality at the highest level in that country, Zimbabwe is a safe haven for lesbians and gays. The case is LZ (homosexuals) Zimbabwe CG [2011] UKUT 00487 (IAC) and it was reported on 26 January 2012.

In some ways the case appears at first blush to represent simple common sense: each case must be argued on its own facts. However, the effect of a Country Guidance case is more pernicious than may first appear. It introduces a starting presumption as to the outcome of the case which must be rebutted by the party whose case is negatively affected by the case in question. Practice Direction 12 for the tribunal states that Country Guidance cases are authoritative and that it will likely be an error of law not to follow a Country Guidance case.

The case highlights long held concerns about the entire principle of having Country Guidance cases. Compare the following two sentences from paragraphs 17 and 24:

“Before us, the appellant did not rely only on general risk to homosexuals, or to female homosexuals.”

and

“[The appellant’s lawyer] invited us to allow the appeal primarily because all homosexuals, male and female, are at risk of persecution throughout Zimbabwe.”

The Appellant’s primary case was said to be about the individualised risk to her alone, based on the unique facts of her own case. That might be described as the traditional approach to arguing a legal case – many might be surprised to learn there is any other approach, in fact. However, the appellant’s representative argued and presented considerable evidence that an entire class of persons, lesbians and gays in Zimbabwe, were refugees. Only one of that class of persons was represented before the tribunal but the lawyer took it on himself to argue the case for everyone, no doubt encouraged by directions from the tribunal to do so.

I can myself fairly easily think of arguments concerning the evidence put forward by the Home Office in this case but I have no idea if these arguments were put to the tribunal. Why was the evidence of Women of Zimbabwe Arise (WOZA) considered to be relevant and given any weight, for example? In what way were they qualified to give evidence about the treatment of lesbians or others and why would they not suffer from the same deep rooted homophobia as the rest of Zimbabwean society?

The determination is open to legal criticism (where is the evidence to support the findings, apart from anything else?) and an appeal might normally be expected. But here too arises another problem with Country Guidance cases: the particular appellant actually succeeded and will be recognised as a refugee. She therefore cannot appeal, and the negative generalised conclusions that had nothing to do with her case will now stand for several years creating a presumption in other cases.

This type of Country Guidance case is anathema to the common law system of precedent and offends against the general prohibition on judgments in rem. The tribunal should not be reporting such cases.

It is unfair to be excessively critical of the lawyer or lawyers in this case because plenty of others do the same. Being involved in a Country Guidance case raises one’s profile and it is exciting, opening up all sorts of legal interest and enabling generous Legal Services Commission funding for expert evidence and other preparatory work. However, these Country Guidance cases where the arguments and evidence is extraneous to the clients best case are very different to traditional  test cases where one is forced to argue a novel point of law because the client’s case depends on it or with the limited number of Country Guidance cases where, like those on Somalia, the client’s best case is actually the generalised risk.

I was once memorably (to me!) and I thought rather unfairly described as ‘wholly disingenuous’ in a reported determination when I resisted the tribunal’s attempts to force me to make generalised arguments beyond the scope of the particular facts of my client’s case. It continues to surprise and depress me that others don’t do the same.