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When is a policy not a policy? Tribunal tackles law on disclosure


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BH (policies/information: SoS’s duties) Iraq [2020] UKUT 189 (IAC) was the case of an Iraqi Kurd, heard by the Upper Tribunal sitting in Edinburgh. The issue was whether the First-tier Tribunal judge had erred in law because he had not considered the case of AAH (Iraqi Kurds – internal relocation) Iraq (CG) [2018] UKUT 212 in the context of the Home Office’s country policy and information note on Iraq: Security and humanitarian situation (version 5.0 of November 2018), which the Presenting Officer had not drawn to the judge’s attention.

It subsequently transpired that version 5.0 had not been published at the date of hearing, but had been published prior to the determination being promulgated. You will search in vain for any statement of whether this made a difference to the determination of the appeal, so we must conclude that it did not.

Overview of the decision

There is a survey of the relevant immigration case law on disclosure. From it, the tribunal draws the following conclusions, summarised in the headnote:

(a) The Secretary of State has a duty to reach decisions that are in accordance with her policies in the immigration field. Where there appears to be a policy that is not otherwise apparent and which may throw doubt on the Secretary of State’s case before the tribunal, she is under a duty to make a relevant policy known to the Tribunal, whether or not the policy is published and so available in the public domain. Despite their expertise, judges in the Immigration and Asylum Chambers cannot reasonably be expected to possess comprehensive knowledge of each and every policy of the Secretary of State in the immigration field.

(b) In protection appeals (and probably in other kinds of immigration appeals), the Secretary of State has a duty not to mislead, which requires her to draw attention to documents etc under her control or in the possession of another government department, which are not in the public domain, and which she knows or ought to know undermine or qualify her case.

(c) There is a clear distinction between information and policy: […] that country information is contained in a COI (country of origin) document published by the Secretary of State does not, without more, make that information subject to the duty in sub-paragraph (a) above.

Point (a) is derived from a standalone survey of the case law, which is then alluded to briefly in the discussion. A close reading is required to distinguish remarks obiter from the ratio of the determination.

Point (b) is simply a re-statement of the decision in CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59 at paragraphs 36 to 38. “Probably” is perhaps an unhelpful way of indicting that a point (here, the duty in immigration, as opposed to asylum, cases) is obiter, when dealing something so fundamental as a duty not to mislead.

As to (c), it serves to qualify (a). It arguably rests on a flawed assessment of what a country policy and information note is, as discussed below, and it overlooks binding authority from the Court of Appeal.  The tribunal decided that the note was country information and was not policy and held that, as a result, it did not need to be disclosed.

It is doubtful whether the case will go further, given the tribunal’s conclusion that taking the note into consideration would not have affected the outcome. It is therefore important to recognise its limitations.

The Kerrouche duty

R v Special Adjudicator, ex parte Kerrouche [1997] EWCA Civ 2263 is authority for the proposition that the Secretary of State’s representative should draw the attention of an adjudicator/immigration judge to a relevant policy, to avoid the judge being misled. The obligation on the Secretary of State was not knowingly to mislead, i.e. to know or to ought to have known that what was withheld materially detracted from that on which she had relied.  

Kerrouche was a third country case and it restated the decision of the House of Lords in R (Abdi & anor) v Secretary of State for the Home Department & anor [1996] UKHL 9, also a third country case. The majority of the House of Lords in Abdi rejected the argument that the duties of disclosure in third country cases could be distinguished from those in other asylum cases.

What the majority in Abdi did hold is that an implied obligation to disclose all relevant documents in an asylum appeal was wholly inconsistent with the express obligation to disclose specific documents in Rule 5(6) of the Asylum Appeals (Procedure) Rules 1993 (SI 1993/1661). Rule 5(6) read: 

Upon receipt of notice of appeal (whether or not the notice was given within the time limit), the immigration officer or (as the case may be) the Secretary of State shall send to the appellant, to a special adjudicator and to the United Kingdom Representative of the United Nations High Commissioner for Refugees the documents specified in paragraph (3) together with (in the case of the appellant and the special adjudicator only) the original or copies of any notes of interview and of any other document referred to in the decision which is being appealed.

The material part of the current rules reads:

24.—(1) Except in appeals to which rule 23 applies, when a respondent is provided with a copy of a notice of appeal, the respondent must provide the Tribunal with—

(a) the notice of the decision to which the notice of appeal relates and any other document the respondent provided to the appellant giving reasons for that decision;

(b) any statement of evidence or application form completed by the appellant;

(c) any record of an interview with the appellant in relation to the decision being appealed;

(d) any other unpublished document which is referred to in a document mentioned in subparagraph (a) or relied upon by the respondent; and

(e) the notice of any other appealable decision made in relation to the appellant.

No surprise, then, that the tribunal in BH found no general duty of disclosure as applies in civil cases in England and Wales.  

AA (Afghanistan) and UB (Sri Lanka)

The tribunal also considered UB (Sri Lanka) v Secretary of State for the Home Department [2017] EWCA Civ 85 at paragraphs 16 – 20. In that case letters from the British Embassy attesting to the risks to members of the organisation the Transnational Government of Tamil Eelam had been appended to country information and policy notes. The Court of Appeal held that there was “the clearest obligation on the Secretary of State to serve relevant material” in a case where she did not believe a claimant to be a member of that organisation. That the material was published online in no way diminished that obligation.

At paragraph 26 of the determination in BH the tribunal cites the note of caution sounded by Irwin LJ at paragraph 22 of UB:

22. The obligation is clear but must not be taken beyond the proper bounds. There is no obligation on the Secretary of State to serve policy or guidance which is not in truth relevant to the issues in hand, and complaints as to alleged failures of disclosure of material which is truly peripheral or irrelevant should readily be rejected.

The tribunal in BH states at paragraph 27: “Furthermore, it was not enough to show that the material should have been served. It also had to be shown that the material might have affected the outcome of the appeal”. This is an unhappy formulation, reversing what Irwin LJ said in UB, which was that the material should have been served because it might have affected the outcome of the appeal.

The tribunal also considered AA (Afghanistan) [2007] EWCA Civ 12 in which my colleague Manjit Gill QC, with Amanda Jones, persuaded the Court of Appeal that there was a duty on the Secretary of State to put relevant policy material before the tribunal to avoid it being misled.

Country policy and information notes

The tribunal in BH says that it is important to 

appreciate the difference between, on the one hand, policies of the respondent in the immigration field and, on the other, purely informational material concerning the situation in the particular country from which an individual has come to the United Kingdom in order to seek international protection. The distinction is important; but its existence has been somewhat obscured in the cases.

It is surprising that the determination does not touch on the long and troubled history of country information as policy or refer to the Court of Appeal case of RS (Sri Lanka) [2019] EWCA Civ 1796.

RS (Sri Lanka)

In reaching its conclusion that there is no obligation on the Home Office to bring relevant country information to the attention of the tribunal, the tribunal omits to refer to RS (Sri Lanka[2019] EWCA Civ 1796.

At paragraphs 10 and 11 of that case, the Court of Appeal clearly applies the duty of disclosure to a Country of Origin Information report. Although the case is recent, the document in question dates from 2012 when, as set out below, “country of origin information” was clearly distinguished from policy set out in operational guidance notes. The decision of the tribunal thus appears to have been reached per incuriam. RS (Sri Lanka[2019] EWCA Civ 1796 should be brought to the attention of the tribunal in any case in which BH is cited against you.

Information or policy?

In 2011, a report by then Chief Inspector of Borders and Immigration, John Vine, recommended that the Home Office remove country of origin information from policy documents. He was critical of the “operational guidance notes” produced by the Asylum and Appeals Directorate of the UK Border Agency and its predecessors.

This was against a background of the Independent Advisory Group on Country Information repeatedly being refused to be allowed to review operational guidance notes. The group, on which I used to sit, reviewed information produced outside the Border Agency, in the County of Origin Information Service in the wider Home Office. The group complained that a misleading impression was being given that it had also reviewed the (deeply flawed) operational guidance notes.

The subsequent history is set out very fully in Chief Inspector David Bolt’s 2017 inspection of “the production and use of Country of Origin Information”. Although Mr Vine’s recommendation was rejected, in 2004 country information and policy were split, only to be merged again in 2014, forming a Country Policy and Information Team with great costs savings.  Operational guidance notes and country of origin information were merged into a single document called “country information and guidance”. These were renamed country policy and information notes “following judicial criticism”, writes the Chief Inspector, to try to avoid confusion with country guidance cases.

The notes came within the purview of a successor body, the Independent Advisory Group on Country Information, although its resources were sorely stretched. The Chief Inspector found that the notes:

as their title implies… combine country information and “Policy”. This is wrong in principle and, whatever the intention, the effect is to direct the user towards a predetermined outcome… all of the selected information points to the policy conclusions, and therefore has the effect of validating them, while the importance of the de-selected information is inevitably diminished.

The Home Office rejected his recommendation that the Country Policy and Information Team should not produce “policy” guidance.

Nature of the 2018 note

The Upper Tribunal held at paragraph 46 of BH that “Nowhere in the 2018 Note is there any reference to Home Office policy”. This is despite going on, in the same paragraph, to acknowledge that the note states at 2.3.19:

In general, the humanitarian situation is not so severe that a person is likely to face a breach of Articles 15(a) and (b) of the Qualification Directive/Articles 2 and 3 of the ECHR, requiring a grant of Humanitarian Protection… However, decision makers must consider each case on its merits.

That is a statement of policy. 

Moreover, it is supported by “selected information point[ing] to the policy conclusions” as Mr Bolt described. It is information produced by one party to the appeal. A refusal letter can rightly be criticised for taking a different position than is taken in the Country Policy and Information Note in force when it was written.

Practitioners should be swift to argue, citing the Chief Inspector’s research in support, that Country Information and Policy Notes in their particular case cross the line into policy.

Knowledge of the tribunal and lawyers

The headnote sets out that “Despite their expertise, judges in the Immigration and Asylum Chambers cannot reasonably be expected to possess comprehensive knowledge of each and every policy of the Secretary of State in the immigration field.” This, given the number and frequency of such policies, cannot but be accurate. But it does beg the question of how Home Office Presenting Officers, who have a greater caseload than tribunal judges or most appellant’s representatives, are expected to do so. 

Problems arise most frequently when the refusal letter does not accurately reflect Home Office policy, either because it never did, which is too common, or because, with the passage of time between refusal and appeal, the policy has changed. Some countries, and issues from those countries, arise frequently before the tribunal, others are rarer. There is a real need to strengthen quality control so that refusal letters accurately reflect Home Office policy on a particular country and that decisions are reviewed, prior to coming before the tribunal, to check that they do reflect subsequent policy changes prior to appeal.

Country guidance cases

The Upper Tribunal produces country guidance determinations which, rather than elucidating points of law, make findings on what conclusions can be drawn from a given set of factual evidence about country conditions. Country guidance cases are statements of tribunal policy which bind immigration judges. These “exotic” “factual precedent[s]”, as Laws LJ referred to them in S and Others v Secretary of State for the Home Department [2002] INLR 416, aim to promote consistency and hence protect the reputation of the tribunal.

Conclusion (c) in this case must give rise to questions as to how far the tribunal acknowledges that it is making policy in such cases rather than uncovering a truth about the world. For an in-depth discussion of country guidance cases see Country Guideline cases: benign and practical?, written in 2005 by one Colin Yeo. 

This article was originally published on 18 June 2020 and updated on 22 June 2020 to include a reference to RS (Sri Lanka) [2019] EWCA Civ 1796. Thanks to David Neale of Garden Court Chambers for pointing out the omission.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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Alison Harvey

Alison Harvey

Alison Harvey is a barrister at No 5 chambers. She accepts both instructions from solicitors and direct access work. She regularly trains and lectures. She is Chair of Trustees at Kalayaan. She is a contributor to Fransman's British Nationality Law and to Macdonald's Immigration Law and Practice. A former General Secretary and then Legal Director of the Immigration Law Practitioners' Association, she has specialised in immigration, asylum, nationality, free movement and human rights for over 20 years, representing individuals and working on policy and legislation in both the the UK and overseas.