How can Country Guidance cases be changed?

The outcome of an asylum case can sometimes depend not on what the individual person says happened to them but on the general situation in a particular country. The general situation for asylum seekers from several countries is determined by the Upper Tribunal in what are called Country Guidance (CG) cases.

For instance, Syrian nationals are generally entitled to protection in accordance with the country guidance case of KB (Failed asylum seekers and forced returnees) Syria CG [2012] UKUT 426 (IAC). The same is true in relation to Libya: ZMM (Article 15(c)) Libya CG [2017] UKUT 263 (IAC).

No such generalised risk is accepted in relation to other countries such as Iran, Iraq, and Sudan, albeit there may be a risk in certain circumstances. The Upper Tribunal’s country policy guidance for these countries, and for many others, provides detailed information on when there is likely to be a risk and when there isn’t.

A list of Country Guidance cases relevant to each country can be found on the Upper Tribunal website. or cases can be searched for on BAILII. All Free Movement blogs on Country Guidance cases can be found here.

The rationale for Country Guidance

The Upper Tribunal explains that: 

“The giving of country guidance is an important part of [the Upper Tribunal’s] function, intended to promote the administration of justice through the achievement of consistent decision-making throughout the asylum process and to enable the parties to know where they stand… there are simply not the resources for a detailed and reliable determination of conditions in foreign countries to be made on an individual basis in each decision arising on the application or appeal of persons seeking protection. Even if the resources were available, it would be wasteful to have such an investigation, involving much the same evidence, in every case. There would also be a risk of inconsistent decisions, a consideration that is particularly important as it follows from a decision that if one person requires protection, if correct, that a person in the same situation who has been returned may have risked or suffered ill treatment or worse.” – ROBA (AAR) v The Secretary of State for the Home Department (Rev1) (OLF members and sympathisers) Ethiopia (CG) [2022] UKUT 1 (IAC) at [15]-[16].

The system is supposed to prevent issues that come up frequently in immigration appeals from being determined over and over again by the First-tier Tribunal. Instead, the Upper Tribunal decides the issue, and everyone is required to follow their decision. The aim is to ensure consistency, and save time and money.

However, some Country Guidance cases were issued several years ago and may be out of date. Some have been completely overtaken by world events (AS (Safety of Kabul) Afghanistan (CG) [2020] UKUT 130 (IAC) we’re looking at you…). What happens when the situation changes and the Country Guidance has not yet caught up?

When can Country Guidance be departed from?

Country Guidance is generally binding on Home Office decision makers and the First-tier Tribunal. But there are caveats. The Practice Direction for the First-tier Tribunal states:

A reported decision of the Upper Tribunal, the AIT, or IAT, bearing the letters “CG” shall be treated as an authoritative finding on the country guidance issue identified in the decision, based upon the evidence before the members of the Upper Tribunal, the AIT, and the IAT that decided the appeal. As a result, unless it has been expressly superseded or replaced by any later “CG” decision, 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 obligation is also reflected in case law:

“…decision-makers and tribunal judges are required to take country guidance determinations into account, and to follow them unless very strong grounds supported by cogent evidence, are adduced justifying their not doing so.” – SG (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 940 at [47]

The First-tier Tribunal therefore has some flexibility. This is needed, as:

“…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. Consistency is a virtue in a judicial system, but it does not displace the duty to determine cases correctly when the passage of time, and events since the evidence considered in the Guidance case, give real reason to say that the guidance either should not be followed or should be applied with caution.” – FA (Libya: art 15(c)) Libya CG [2016] UKUT 00413 (IAC) at [8].

However, “very strong grounds supported by cogent evidence” is a very high threshold. A well-researched expert report is necessary to get anywhere near convincing the First-tier Tribunal that the time has come to depart from the Upper Tribunal’s current Country Guidance.

The relevance of a Country Guidance case is important as well, though. As noted by the Court of Appeal:

“…Country Guidance must be applied with some degree of subtlety. By its nature it is “guidance”; and however valuable it cannot, and does not purport to, cover definitively every permutation of fact or circumstance which emerges. Each case must be assessed on its facts and sensibly against the Guidance.” – SB (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 160 at [70].

If the issue in your case isn’t addressed by the Country Guidance, it does not apply and the First-tier Tribunal is free to make its own findings.  

Country Guidance in practice  

All Country Guidance cases issued so far this year were heard by at least two Upper Tribunal Judges, and usually by three. Each party was represented by at least one barrister. Often a senior and junior barrister or multiple junior barristers were instructed for each side. In most cases oral evidence was heard from at least one country expert, often two, who were then cross examined.

This is not how the First-tier Tribunal works.

Cases are heard by one judge. The appellant is usually represented by a solicitor and the Home Office is usually represented by a civil servant who receives the case papers shorty before the hearing. Both sides can, and sometimes do, instruct a barrister. Expert reports are often lodged. However, the expert rarely gives oral evidence at the hearing.

So, anyone hoping to persuade the First-tier Tribunal to depart from a Country Guidance case has an uphill struggle.

The process is as follows:

Stage 1: The appellant obtains an expert report explaining why the Country Guidance is no longer accurate.

Stage 2: It is argued before the First-tier Tribunal that this expert report represents very strong grounds, supported by cogent evidence, for departing from the Country Guidance. It is likely to be easier to persuade the First-tier Tribunal that this is the case if the expert gives oral evidence.

Stage 3: The First-tier Tribunal either allows or dismisses the appeal. If neither party appeals, the decision is of no use to anyone other than the appellant. It is not published. It is not binding on other judges. Anyone wishing to make a similar argument has to go through the whole process again. 

Stage 4: If the losing party want to appeal, permission to appeal needs to be sought. Permission may be difficult to get. The default position is that First-tier Tribunal Judges are expected to follow Country Guidance. This is true even where the case is being set up for the Upper Tribunal to review existing Country Guidance. It may be difficult to convince a judge considering a paper based application for permission to appeal that the high test for departing from the existing Country Guidance was met and the judge was wrong to follow it.

Stage 5: If permission is granted, the case is heard by the Upper Tribunal to determine whether there was an error of law in the First-tier Tribunal’s decision. If there is no error of law, the Upper Tribunal won’t hear any evidence and won’t re-decide the case.

Stage 6: It is only if there is an error of law that the Upper Tribunal can treat the case as a Country Guidance case. They can hear evidence and issue a determination which will be published and can be marked as Country Guidance to be relied on in future.

This is why Country Guidance cases take so long to catch up with events on the ground.

A new way forward? 

In my view, this doesn’t save time or money. It wastes both. It creates an unnecessary barrier to Country Guidance cases reaching the Upper Tribunal, which is the more appropriate forum for deciding important issues of widespread interest. It runs the risk of the First-tier Tribunal being asked repeatedly to depart from Country Guidance until, by happenstance, an appropriate case reaches the Upper Tribunal. This is precisely what the Country Guidance system was designed to avoid.

It would be far better if there was a mechanism for referring potential Country Guidance cases directly to the Upper Tribunal as and when they arise. This would streamline the process, avoiding the need for a First-tier Tribunal hearing, essentially skipping stages 2 to 5 above.

There could be a sifting process – as there is now – to prevent unmeritorious cases from reaching the Upper Tribunal. For instance, anyone seeking a referral could be required to demonstrate that there is a good arguable case that the Country Guidance should be revisited. If this test is met, the case goes to the Upper Tribunal. If it isn’t, it stays in the First-tier Tribunal and follows the usual process.

This would require changes to the Tribunal’s rules. But that is not unheard of. The General Regulatory Chamber of the First-tier Tribunal can already refer case directly to the Upper Tribunal in certain circumstances. In my view, enabling the Immigration and Asylum Chamber to do so as well would be a far more efficient way to deal with changes to Country Guidance.