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Home Office evidence on the country of origin

Chapter number: 
17
Section: 
Evidence
Last updated: 
30 November 2014
Best Practice Guide to Asylum and Human Rights Appeals
by Mark Henderson & Alison Pickup

Reports authored by the Home Office

17.1 The Home Office has produced a range of reports and notes on countries of origin. Prior to 2014, its Country of Origin Information Service published three 'products' which it described as follows:

COI reports are compilations of extracts from a wide range of external sources. Each report focuses on the main asylum and human rights issues in a particular country, and provides background information on geography, economy and history. COI reports are produced on the 20 countries generating the most asylum applications in the UK, and are updated regularly.

COI bulletins and updates are occasionally issued when it is necessary to provide information at short notice in response to emerging events, or in relation to a country for which a COI report is not produced.

COI fact-finding mission reports are produced following fact-finding missions to countries of origin to obtain information not available from existing sources.

COIS also publishes a "Useful Sources" document which is "a collection of non-country specific source websites compiled to assist UK Border Agency officials involved in the asylum and human rights decision making process". It is in fact a fairly comprehensive list of internet resources, grouped into themes such as "children", "ethnic groups and minorities", "journalists and media" and will be a useful starting point for research on behalf of appellants.

17.2 Some of these documents will remain current for some countries however from the beginning of 2014, UKVI has introduced a new product, described as 'Country Information and Guidance' ('CIG') which combines elements of COI reports and policy guidance. These reports are more thematic, while remaining country specific. For example, in relation to Albania, there are two CIG reports which have been published in 2014, one on 'Trafficking' and one on 'sexual orientation and gender identity'. The most recent COIS reports, CIG reports, Operational Guidance Notes and Country Policy Bulletins (see below) are now located together, grouped by country, at https://www.gov.uk/government/collections/country-information-and-guidance

17.3 The Home Office also produces what it describes as 'country specific asylum policy'. The main 'product' is the 'Operational Guidance Note' (OGN), the purpose of which it describes as follows: "Operational guidance notes (OGN) summarise the general, political and human rights situation in a particular country, and describe common types of asylum claim. Country policy bulletins provide clear guidance on dealing with country-specific issues that arise in asylum and human rights applications". OGNs often contain substantial country information and are sometimes presented by HOPOs as impartial country information reports (see below, para 17.25). This problem may be exacerbated by the new format CIG reports, although these do at least present the 'Guidance' separately from the underlying COI (see further para 17.19 below).

17.4 All Home Office material on your country of origin should be considered in advance of the hearing, whether or not the Home Office has served it in advance in your appeal.

17.5 As a result of concerns expressed in Parliament about the accuracy and impartiality of the Home Office's country information, the Advisory Panel on Country Information (APCI) was established pursuant to s.142 of the Nationality, Immigration and Asylum Act 2002 to advise on the balance and reliability of Home Office country information. With the creation of the new Independent Chief Inspector of the UK Border Agency by the UK Borders Act 2007, its functions were transferred to the Chief Inspector who established, in March 2009, the Independent Advisory Group on Country Information (IAGCI). Its website explains that:

The IAGCI was established in March 2009 by the Independent Chief Inspector of Borders and Immigration and succeeded the Advisory Panel on Country Information (APCI). The IAGCI makes recommendations to the Chief Inspector about the content of material produced by the Home Office's Country of Origin Information Service as well as recommendations of a more general nature....

It is not the function of the IAGCI to endorse any Home Office material or procedures. Some of the material examined by the IAGCI relates to countries designated or proposed for designation onto the Non-Suspensive Appeals (NSA) list. In such cases, the IAGCI's work should not be taken to imply any endorsement of the decision or proposal to designate a particular country for NSA, nor of the NSA process itself.

17.6 The APCI was only permitted by the Home Office to review country information produced by its COIS. The Home Office repeatedly refused to allow scrutiny of the country information contained in its OGNs, but since 2012 it has reviewed OGNs and its reviews now cover all of the COI products, including the new CIG reports. Its reviews are accessible on its website, together with the Home Office's responses, and provide useful material for critiquing COI and CIG reports and OGNs. As well as reviewing individual country reports, the IAGCI has also published thematic reviews, for example into the coverage of issues related to children in COI reports (in 2012) and coverage of LGBTI issues (in 2014).

COI Reports, CIG reports and bulletins

17.7 A 'Country of Origin Information Report' is produced on the top 20 countries in terms of numbers of asylum claims. The standard introduction states that:

i This Country of Origin Information (COI) Report has been produced by the COI Service, United Kingdom Border Agency (UKBA), for use by officials involved in the asylum/human rights determination process. The Report provides general background information about the issues most commonly raised in asylum/human rights claims made in the United Kingdom. ...

ii The Report is compiled wholly from material produced by a wide range of recognised external information sources and does not contain any UKBA opinion or policy. All information in the Report is attributed, throughout the text, to the original source material, which is made available to those working in the asylum/human rights determination process.

iii The Report aims to provide a compilation of extracts from the source material identified, focusing on the main issues raised in asylum and human rights applications. In some sections where the topics covered arise infrequently in asylum/human rights claims only web links are provided. It is not intended to be a detailed or comprehensive survey. For a more detailed account, the relevant source documents should be examined directly.

[...]

v The information included in this COI Report is limited to that which can be identified from source documents. While every effort is made to cover all relevant aspects of a particular topic, it is not always possible to obtain the information concerned. For this reason, it is important to note that information included in the Report should not be taken to imply anything beyond what is actually stated. For example, if it is stated that a particular law has been passed, this should not be taken to imply that it has been effectively implemented unless stated. Similarly, the absence of information does not necessarily mean that, for example, a particular event or action did not occur.

vi As noted above, the Report is a compilation of extracts produced by a number of reliable information sources. In compiling the Report, no attempt has been made to resolve discrepancies between information provided in different source documents though COIS will bring the discrepancies together and aim to provide a range of sources, where available, to ensure that a balanced picture is presented. For example, different source documents often contain different versions of names and spellings of individuals, places and political parties, etc. COI Reports do not aim to bring consistency of spelling, but to reflect faithfully the spellings used in the original source documents. Similarly, figures given in different source documents sometimes vary and these are simply quoted as per the original text. The term 'sic' has been used in this document only to denote incorrect spellings or typographical errors in quoted text; its use is not intended to imply any comment on the content of the material.

vii The Report is based substantially upon source documents issued during the previous two years. However, some older source documents may have been included because they contain relevant information not available in more recent documents. All sources contain information considered relevant at the time this Report was issued.

viii This COI Report and the accompanying source material are public documents. All COI Reports are published on the UK Border Agency website and the great majority of the source material for the Report is readily available in the public domain. Where the source documents identified in the Report are available in electronic form, the relevant web link has been included, together with the date that the link was accessed. Copies of less accessible source documents, such as those provided by government offices or subscription services, are available from the COI Service upon request.

[...]

x In producing this COI Report, COI Service has sought to provide an accurate, balanced summary of the available source material...

17.8 Some of the COI reports are now very lengthy. They nevertheless contain little analysis and consist for the most part of quotations from other sources. The sources quoted vary widely in reliability, independence, and accessibility. No-one would object on these counts to Amnesty International reports. Many might object to particular newspapers from the country of origin, especially in countries where the regime interferes with press freedom. Sometimes, the source will simply be a letter to the Home Office from the Foreign Office (see below). There is often little or no recognition in the reports of the extent to which the quoted sources vary in their reliability.

17.9 There are of course serious concerns about such reports written by a party to the appeal being treated as if they were independent reports. HOPOs however often argue that the Home Office's COI reports and bulletins should be treated in this way. If the appellant or her lawyers submitted a document full of quotes from a wide range of sources without any recognition of their varying reliability, and then claimed that it was unnecessary even to submit the original reports, vociferous objection could be expected from the Home Office.

17.10 HOPOs sometimes claim that it is acceptable for the Home Office to do just that because it puts its reports on its website so it is open to appellants to check the context of the quotations and research the reliability of the sources. However, quite apart from whether this is an appellant's job, the reality is that it is only in Country Guidance cases that there is much prospect of adequate funding being available to appellants' representatives to conduct any significant analysis of the Home Office reports. Where part of the COI report is contrary to your case, the best course will often be to instruct an expert to comment on it, although as noted above it is also worth consulting any IAGCI review for useful comment.

17.11 Do check the COI report for useful quotations from background materials. Given that the Home Office has chosen to cite these sources, the HOPO can hardly then argue that there is insufficient evidence that the source is reliable or allege that the quotation may have been taken out of context.

17.11A The CIG reports contain the following standard information about the nature and purpose of the report in a Preface:

This document provides guidance to Home Office decision makers on handling claims made by nationals/residents of - as well as country of origin information (COI) about – [name of country]. This includes whether claims are likely to justify the granting of asylum, humanitarian protection or discretionary leave and whether - in the event of a claim being refused - it is likely to be certifiable as 'clearly unfounded' under s94 of the Nationality, Immigration and Asylum Act 2002.

Decision makers must consider claims on an individual basis, taking into account the case specific facts and all relevant evidence, including: the guidance contained with this document; the available COI; any applicable caselaw; and the Home Office casework guidance in relation to relevant policies.

Within this instruction, links to specific guidance are those on the Home Office's internal system. Public versions of these documents are available at https://www.gov.uk/immigrationoperational-guidance/asylum-policy.

Country Information

The COI within this document has been compiled from a wide range of external information sources (usually) published in English. Consideration has been given to the relevance, reliability, accuracy, objectivity, currency, transparency and traceability of the information and wherever possible attempts have been made to corroborate the information used across independent sources, to ensure accuracy. All sources cited have been referenced in footnotes.

It has been researched and presented with reference to the Common EU [European Union] Guidelines for Processing Country of Origin Information (COI), dated April 2008, and the European Asylum Support Office's research guidelines, Country of Origin Information report methodology, dated July 2012.

Research in the country of origin

17.12 As indicated, the COI and CIG reports (and the OGNs) sometimes quote letters to the Home Office from the FCO or the local Embassy or High Commission purporting to be the result of research in the country of origin.

17.13 The Home Office also produces reports based on 'COI Fact Finding Missions'. Home Office 'Fact Finding Missions' (FFMs) were reviewed for the first time by the APCI in May 2008. In EM (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC), the Tribunal observed that:

76. In April 2008 Dr Alan Ingram of the Department of Geography, University College London produced a Review of COI Fact-Finding Mission Reports and Guidelines. He noted that the COIS web page stated that FFM reports were "produced by COI Service following fact finding missions to countries of origin to obtain information not available from the existing sources". At that time, FFM reports had been produced in relation to Iraq, Cameroon, India and Somalia. Dr Ingram made a number of recommendations, including that a section should be included in FFMs, setting out the thinking behind the choice of interviewees.

77. In a response paper of 2008 written by Nick Swift of the COI Service, it was explained that FFMs "do not attempt to undertake social research. Rather, COIS FFMs are an extension of the routine desk-based research used to produce COI Reports and other COI products. Our FFMs are not seeking to find 'the truth'; they are simply looking to obtain a range of views from informed parties on the issue in question" (paragraph 4.1). Interviewees were briefed in advance on the questions to be asked and had an opportunity of changing their responses before giving consent for their views to be included in the report. This meant the report was essentially "a collection of prepared statements, similar in nature to published written material". The difference was that, unlike such published material, the information obtained "goes directly to the detailed issues under investigation". Noting criticism of the expression "fact finding mission", paragraph 5.2 of the response said that it was in the nature of all COI that "most of it is comprised of the views and opinions of informed organisations and individuals. This applies equally to FFMs, which do not seek to find hard facts but a range of informed views." "Fact finding mission" was, nevertheless, the accepted term used by all countries which carried them out. Consideration would, however, be given to referring to the exercise as an "information gathering mission".

78. At paragraph 5.5 of the response, it was stated that to some extent the sources used in FFMs were self-selecting owing to practical considerations of availability, geography and timing. Although an effort was made to make the samples as representative as possible, the reports of FFMs "make no claims about the validity of the sample; they simply state who was interviewed and what they said. It is left to the user to assess the value of the information provided by each source, as well as the overall balance of the sample."

The Tribunal also cited the expert review commissioned by the APCI of a COI Fact Finding Mission to Turkey carried out in February 2008. The experts' conclusions were summarised in the APCI Minutes of its May 2008 meeting in the following terms:

Dr Adamson said there appeared to be no clear methodology for the FFM.

The reviewers were not briefed on why the mission focussed on the particular issues covered or on what basis the specific interviewees were selected; the HO had advised only that they had relied on the guidance of the British Embassy in selecting interlocutors and had only five days in which to conduct the FFM. The reviewers had not attempted to cross-check facts or statements in the FFM report, but they did recommend certain areas for checking. Dr Adamson outlined the reviewers' other points of concern:

- In certain cases, there were discrepancies between statistics provided by interviewees and figures in published sources; in other cases it was not clear where the statistics quoted by the interviewee were taken from;

- Generally, most of the interviewees were not questioned on the sources of their information;

- The reviewers questioned the process used by the British Embassy to select interviewees – the criteria were unclear and there was a lack of reliance on academic sources, research centres and local offices of international organisations;

- No regionally-based sources had been interviewed, despite a regional element to the subject matter being researched;

- The reviewers recommended that statements by interviewees should not necessarily be treated as authoritative, but rather as expressions of their own opinions;

- There was some criticism by the reviewers of the questionnaire sent to interviewees – for example, some terms were not clearly defined.

17.13A In responding to these criticisms, a representative of the COIS told the APCI:

COI Service's approach to FFMs, in common with that of international partners, was relatively unsophisticated. The aim was very simple – to obtain detailed information on a number of specific issues, by interviewing a number of sources representing as wide a range of opinion as possible. The selection of sources was made on the basis of suggestions from COI Service and advice from the Foreign & Commonwealth Office, but also dictated by practical constraints and availability.

17.14 In addition, the Home Office has sent fact finding missions specifically to gather country information for litigation in the Tribunal, as well as producing research conducted by local embassies under Home Office direction - it did both in recent Zimbabwean Country Guidance litigation. In preparation for the hearing in EM [2011] UKUT 98 (IAC), it sent a FFM with the aim of producing a published report which would be used as part of the Home Office's case, conducted following advice from their legal team and made up of a COIS official and an official from the litigation team. Such conduct casts further doubt on the independence of the FFMs and seems to fly in the face of the Home Office's previous acceptance of the needs for a clear separation of the COIS from its policy.

17.15 The fact finding reports often rely on anonymous sources, failing to identify either the person or the organisation for whom he speaks. Independent experts are regularly unable to identify their sources except in camera but a good expert will explain why he considered the person to be a reliable source for the information conveyed. He will also consider any conflicts between that source and other sources, and explain so far as possible why the source could not be identified.

17.16 Such methodology is usually absent from the Home Office reports. In EM [2011] UKUT 98 (IAC), an order for disclosure made by the Tribunal in relation to the anonymous sources revealed that no assessment (or at least no assessment meriting recording in any way) had been made of their reliability. The officials who gave oral evidence (see below) confirmed that they also had made no assessment of the anonymous sources.

17.16A In EM [2011] UKUT 98 (IAC), the Tribunal rejected the appellants' objection to the Home Office's reliance on wholly anonymous evidence (ie where the Home Office would not identify the source even under the protection of the extensive order made by the Tribunal prohibiting identification of witnesses and sources).

17.16B The Strasbourg Court was faced with another Fact Finding Mission report from the SSHD in Sufi and Elmi v UK (8319/07 and 11449/07). It dealt as "a preliminary issue" with "the weight to be attached to country reports which primarily rely on information provided by anonymous sources" (para 219). It held at para 233 that:

233. ... where a report is wholly reliant on information provided by sources, the authority and reputation of those sources and the extent of their presence in the relevant area will be relevant factors for the Court in assessing the weight to be attributed to their evidence. The Court recognises that where there are legitimate security concerns, sources may wish to remain anonymous. However, in the absence of any information about the nature of the sources' operations in the relevant area, it will be virtually impossible for the Court to assess their reliability. Consequently, the approach taken by the Court will depend on the consistency of the sources' conclusions with the remainder of the available information. Where the sources' conclusions are consistent with other country information, their evidence may be of corroborative weight. However, the Court will generally exercise caution when considering reports from anonymous sources which are inconsistent with the remainder of the information before it.

234. In the present case the Court observes that the description of the sources relied on by the fact-finding mission is vague. As indicated by the applicants, the majority of sources have simply been described either as "an international NGO", "a diplomatic source", or "a security advisor". Such descriptions give no indication of the authority or reputation of the sources or of the extent of their presence in southern and central Somalia. This is of particular concern in the present case, where it is accepted that the presence of international NGOs and diplomatic missions in southern and central Somalia is limited. It is therefore impossible for the Court to carry out any assessment of the sources' reliability and, as a consequence, where their information is unsupported or contradictory, the Court is unable to attach substantial weight to it.

235. In the present case the Court observes that the description of the sources relied on by the fact-finding mission is vague. As indicated by the applicants, the majority of sources have simply been described either as 'an international NGO', 'a diplomatic source', or 'a security advisor'. Such descriptions give no indication of the authority or reputation of the sources or of the extent of their presence in southern and central Somalia. This is of particular concern in the present case, where it is accepted that the presence of international NGOs and diplomatic missions in southern and central Somalia is limited. It is therefore impossible for the Court to carry out any assessment of the sources' reliability and, as a consequence, where their information is unsupported or contradictory, the Court is unable to attach substantial weight to it."

17.16C In CM (Zimbabwe) v SSHD [2013] EWCA Civ 1303 [2014] Imm AR 326, Laws LJ said that in this passage, the Strasbourg Court "drew attention to what is with respect an obvious truth, namely that anonymity of information is likely to inhibit the forensic possibility of challenging it" (para 16) but was not a rule of evidence and that .

17. There is no general rule at common law or inspired by the European Convention on Human Rights that uncorroborated anonymous material can never be relied on in a country guidance case or any other case. Sometimes that will be the position. Whether or not it is so will depend on all the circumstances. That is the approach taken by the Upper Tribunal in this case. Generally of course the effect of anonymity will go to the weight to be attached to the material in question and care must always be taken in assessing the weight of such material.

He endorsed (at para 16) the Tribunal's guidance as follows:

164. We accept that where reliance is placed on informants from anonymous organisations and an undertaking of confidentiality is not sufficient to give assurance to the informant to cooperate with the investigation, the respondent should normally give all reasonable assistance to the appellant and the Tribunal in evaluating the nature, size, capacity and independence of the source in question, and the extent to which its opinions are supported or contradicted by others.

165. Where there is a breach of recognised guidelines and best practice it is open to the judge deciding an asylum appeal to afford no weight to unsupported anonymous material because no realistic assessment can be made of its reliability. However, this is a fact sensitive case by case assessment and not the application of a general exclusionary rule...

In SSHD v MN and KY (Somalia) [2014] UKSC 30 [2014] 1 WLR 2064, the Supreme Court considered a decision of the Tribunal to receive an expert report from an organisation that was identified (indeed published) but where the individuals who had written the report were not identified. Lord Carnwath, giving the only judgment of the Court, referred to common law "statements of high authority referring to the "fundamental principle" of judicial process that, other than in exceptional circumstances, witnesses are identified whether in criminal or civil proceedings" (para 42). He said that "in the tribunals as in the courts, openness is the norm and ... there needs to be a special reason for departing from it, risk of serious personal harm being an obvious example". However, and unlike the anonymous sources in CM [2013] EWCA Civ 1303 which were identified by neither individual nor organisation, he considered that "This was not anonymous evidence in the ordinary sense. The evidence was advanced, and the expertise claimed, on behalf of an organisation... There was no doubt about the identity of the organisation". (para 43)

17.16D Especially in Country Guidance cases, the Home Office should make the authors of FFM reports available for cross-examination. The importance of being able to question the Home Office about the individual sources is shown by the Zimbabwean Country Guidance litigation. For AA (Involuntary returns to Zimbabwe) Zimbabwe [2005] UKAIT 00144, a fact finding mission was sent to Harare to obtain information from organisations within Zimbabwe. A similar effort was conducted by the Embassy in Zimbabwe under the Home Office's direction for subsequent Zimbabwean Country Guidance cases. In each case, the Home Office official responsible for the research was made available for cross-examination and the sources were identified to the Tribunal and the parties subject to an order prohibiting their further publication. The Home Office accepted during the course of the litigation that some of the sources it had cited had little expertise or interest in the position of returned asylum seekers, and that the evidence actually indicated that one was well known for its links to the Mugabe regime. Some sources subsequently gave evidence that they had been misrepresented by the Home Office. Those with only tangential interest and/or expertise in the question were liable to be those with the most controversial opinions. The arguments used to justify the assertions turned out on occasion to be bizarre.

17.17 Notwithstanding the stark differences between the 'organisations' whose views the Home Office relied upon in the Zimbabwean litigation, they were all initially presented to the Tribunal on an equal basis without any expressed differentiation or caution on the part of the Home Office. None of the information about their reliability would have come to light without the extensive enquiries and investigations that the Refugee Legal Centre (RLC) were able to conduct in the course of that litigation. It raises considerable concerns about the use of Home Office fact finding reports in cases where appellants and their representatives do not have the resources to investigate the often anonymous assertions cited therein.

17.18 In a subsequent Zimbabwean Country Guidance case, HS (Returning asylum seekers) Zimbabwe CG [2007] UKAIT 00094, the Home Office relied on further investigations by the Embassy presented via a witness statement from the senior Home Office official for Zimbabwe. The Home Office claimed, amongst other things, that it had access to a complete list of Zimbabwean army officers, on the basis of which it disputed the existence of the RLC's sources. It made further claims supposedly based on investigations carried out by Embassy officials during 'ostensibly casual conversations' with Zimbabwean officials. The RLC produced evidence in response which indicated that the Embassy's research was unreliable. The Tribunal said that it could not place any weight on the Embassy's investigations in this regard because

in the one respect that it has been possible to check the accuracy of the information passed on to him, thought by Mr Walker to be correct and reliable, it has been found to be wrong. This, in our view, so undermines this part of the evidence that we are unable to rely upon it at all. There is no independent reason for finding it to be reliable: the only evidence is that it is not. (para 90)

17.19 In EM [2011] UKUT 98 (IAC), cross-examination elicited that the FFM was conducted by a COIS official who was not a Zimbabwe specialist and a Zimbabwe specialist who was actually a member of the litigation unit (and described himself in cross-examination as the "customer" of the report). This was notwithstanding the fact that the Home Office had formally "accepted the Panel's advice that as a matter of good practice, the two functions should be undertaken by different parts of the organisation; and that Home Office country information material would not be perceived as impartial while it was being produced by a unit that was engaged in the development of country specific asylum policy." (see EM, para 153-4, App A). It is particularly concerning in light of the Home Office having accepted and acted upon the Panel's indication that its country information would not be seen as impartial if it were produced by the same unit as its country policy that it it has now returned to deliberately mixing country information and policy in the new format CIG reports.

17.19A The Home Office maintained that the composition of the FFM did not matter because all sources had approved the accounts of their interviews but as the Tribunal observed, only late disclosure revealed that "there were, in fact, a number of difficulties in this regard" (para 83) where interviewees were said to have approved the report where they had in fact sought amendments and corrections that were not inserted. The Home Office apologised and accepted that it should not have taken the process of disclosure in the litigation to reveal these mistakes. That demonstrates the importance of disclosure and cross-examination in relation to FFMs. The mistakes discovered through the litigation process would not have been identified in reviews by the APCI/IAGCI.

17.20 If the Home Office relies on a 'fact finding' report which contradicts your case and which relies on anonymous sources, you will also wish to establish why they cannot be identified and what additional information can be provided and what else they told the Home Office. You can seek disclosure of their identity, which may at least establish whether or not the Home Office have a good reason for refusing to disclose it. Another option is to ask the Home Office whether it will disclose the sources on a confidential basis to the parties and the Tribunal and invite the Tribunal to make an order under rule 13(1) prohibiting the disclosure or publication of the documents or of information likely to lead to the identification of the sources (see further chapter 32). If it is not possible to ascertain the source's identity, you may consider seeking an order for disclosure of any assessments made of the source's reliability (as was made in EM [2011] UKUT 98 (IAC), and established that no such documents existed). You can also seek to cross-examine the members of the FFM on what assessment was made of the source's reliability.

17.21 You can also seek a witness summons for the leader of the fact finding mission to give evidence under the same conditions of confidentiality. Unlike the COI reports which rely on quotations from documents which can be obtained and sources which are identified, there is often no extraneous material by which the fact finding report can be checked, whatever resources are available to the appellant. It may therefore be particularly important to question the leader of the fact finding mission about his qualifications and expertise in this sort of research and how the evidence used in the fact finding report was obtained and selected. You may well wish to contrast the expertise of such officials with your own expert. Unlike say the Canadian documentation centre, the members of the Home Office's COIS often have no recognised qualifications for the research they are carrying out.

17.22 While fact finding missions are a relatively recent development, the Home Office has long relied on letters from the FCO and embassies. However, there has been a similarly long history of concern about their unreliability. In 2000 and even into 2001, the Home Office were relying on a 'Bulletin' on Zimbabwe which asserted that:

The F&CO comments that while there have been instances of ruling ZANU(PF) supporters harassing members of other political parties there is no evidence of State-sponsored persecution of members or supporters of opposition parties.

The Home Office was not discouraged in maintaining this stance by the fact that Amnesty International had by 2000 found 'state sponsored terror' against the opposition or even by what it could read in the newspaper (e.g. 'Mugabe's terror squads "driven round by army"', Daily Telegraph, 31 May 2000; 'A campaign of terror... is being mounted with the specific approval of Robert Mugabe, Zimbabwe's president, against opponents of his regime', Sunday Times, 21 May 2000). The source for the Home Office's claims about the FCO's stance was actually a letter written by it in 1999.

17.22A Even if the letter from the Foreign Office turns out to be recent, it will often be unilluminating in terms of the sources and methodology by which it reached its view. The Court of Appeal has illustrated the dangers in a tribunal accepting claims from the Foreign Office which are not properly sourced. In Drrias v SSHD [1997] Imm AR 346, the Tribunal had described the British Embassy in Sudan as 'a wholly independent body' which would not make a claim 'unless it had very good reason'. On examination, the Court of Appeal found that the Tribunal had erred in being so impressed by the Embassy's methods, and concluded that the Embassy's information was actually 'of very little weight or worth'. In Murugiath v SSHD (15807), the Tribunal commented that:

The telex from the British High Commission in Colombo is... , we note, an avowedly partisan document, written from the point of view of the British Government, not that of an outside observer.

17.23 The Tribunal has said that these should be assessed on the same basis as expert evidence. In LP (LTTE area - Tamils - Colombo - risk?) Sri Lanka CG [2007] UKAIT 00076 it said that:

As to evidence, such as the letters from the British High Commission, it is true to say that High Commissions and Embassies come within the auspices of the Foreign and Commonwealth Office. That, like the respondent, is an arm of the executive. In this case the evidence in the letters has been obtained at the specific request of the respondent. Little is known about the information-gathering process, where the raw data came from, or the extent to which it has been filtered. It is also unclear whether more than one source was consulted and, whether competing views were sought. That all goes to how much weight can properly be put on the evidence. Immigration judges should be slow to find bad faith on either side, even though they must approach the evidence with an open and enquiring mind as to the appropriate weight to be put upon it. We comment further on the BHC material later in this decision. (para 45)

In MD (Ivory Coast) v SSHD [2011] EWCA Civ 989, Sullivan LJ observed that:

42. In the LP case the tribunal had relied on letters from the British High Commission. The European Court of Human Rights [in NA v United Kingdom] did not suggest that that was an impermissible practice and indeed in paragraph 121 it expressly acknowledged that States through their diplomatic missions and their ability to gather information will often be able to provide highly relevant information. However, that information is not simply to be taken at face value. As with background information that is contained in reports from other non-governmental organisations such as Amnesty International or other government sources such as the United States State Department, the information provided by the United Kingdom Diplomatic Service must be assessed in the light of all relevant factors including those factors specifically mentioned in paragraph 120 of NA ...: independence, reliability, objectivity, corroboration et cetera.

17.23A Pill LJ indicated that it would be an "error" to give information from the British Embassy "special status" and that "The weight and value of British Embassy or High Commission information will depend on the view the tribunal takes of it in the particular circumstances." Information contained in these letters will often be provided by the FCO Migration Directorate. Answers to Parliamentary Questions given on 30 April 2012 revealed that 97% of the Migration Directorate's funding came from the UK Border Agency, and 46% of its staff were seconded from there.

17.23B Consider therefore whether the letter has explained the methodology used and explained why any anonymous sources cannot be identified. It will also of course be relevant that the author is a Government official and has not accepted the same duty as independent experts are required by the Practice Directions to accept. It is not uncommon for such letters to refer to comments by the authorities of the country in question, denying allegations of, for example, torture. The weight to be given to such denials will obviously depend on the evidence, but where those claims are contradicted by independent and reliable sources they should obviously be given little, if any, weight by the Tribunal.

Operational Guidance Notes

17.24 As indicated above, the Home Office successfully fought off requests by the APCI to review the reliability and balance of the OGNs by stating that they were not country documents and are intended to promote Home Office policy. The Home Office's objection was explained by it as follows:

OGNs are policy documents which provide guidance on the treatment of particular categories of asylum and human rights claims. The country information element of these documents is interwoven with wider policy considerations and case law. For this reason it would be difficult to extract the country information element and retain its sense without the context of the original document.

The country material cited in OGNs is selected / summarised specifically in order to provide sufficient explanation - alongside wider policy considerations and case law - of the guidance given on particular categories of claims. This country material does not seek to provide detailed information on all aspects of an issue and is not a substitute for the COI provided in COIS products. OGNs explicitly instruct decision makers to refer to the relevant COIS product / original sources for the full picture. The country material in OGNs could not therefore be evaluated in the same way as COIS COI products.

...

The APCI's remit is to provide advice on the content of Home Office COI material. OGNs are policy guidance documents rather than COI documents; and the country material within them is specifically selected to support that policy function. For the reasons given above, it would not be feasible for the APCI to consider the country material in isolation from its policy context.

17.25 Therefore, while the OGNs often contain country information, the Home Office admits that the country information is "specifically selected" to support its policy as to conditions in the country of origin and as to who is at risk. HOPOs often have to be reminded of this when they present these OGNs as balanced country information.

17.26 The Home Office says that the country information in the OGNs is generally sourced from the relevant COI report. However, the most controversial suggestions are sometimes sourced to letters from the FCO or embassies which are not even used in the COI reports. This is especially concerning in the context of the Home Office's strong opposition to the APCI reviewing its OGNs.

17.27 In LP (LTTE area - Tamils - Colombo - risk?) Sri Lanka CG [2007] UKAIT 00076, the Tribunal concluded that they were 'certainly nothing more than ... submissions and are the Respondent's view(s) on issues only' (para 70). In MD (Women) Ivory Coast CG [2010] UKUT 215 (IAC), the Tribunal confirmed its view that OGNs are statements of the Home Office's policy. Referring to the 2009 OGN on the Ivory Coast it said:

264. We are of the view that this document should not be regarded as country information. The Country Information and Policy Unit of the Home Office last prepared an Assessment in October 2001. These were followed by a series of Bulletins, the last of which was published in June 2005. Since then, the Home Office's own material has been in the form of Operational Guidance Notes. These OGNs are not produced by the Country of Information Service. The current COIS reports are a selection of background material provided from sources other than the Home Office and without comment or analysis. Whilst the editorial selection of the passages is a matter of choice for the editor of the Report, (and therefore potentially liable to subjectivity), he comes from a part of the Home Office, RDS, that is independent of policymakers and caseworkers. The Research, Development, Statistics section of the Home Office describes itself as made up of specialist staff, communication professionals and scientists. The selection of material is subject to peer review and the overall scrutiny of the Chief Inspector of the Border Agency acting through the Independent Advisory Group on Country Information, formerly the Secretary of State's Advisory Panel on Country Information, (APCI).

265. Operational Guidance Notes fall into a different category. They are, in essence, policy statements. On many occasions, the Operational Guidance Notes will be supported by references to background material and may have sought assistance from RDS, as well as Tribunal case law taken from reported decisions. Insofar as they include background material, the background material is to be regarded like any other background information, subject to the fact that its selection may not have the same objectivity and is not independently scrutinised.

266. In the case of the Ivory Coast Operational Guidance Note, much of the contents are supported by references to key documents and the FCO Country Profile and other background material. Such background material must be evaluated in the normal way. Insofar as its contents are a statement of policy, it should be regarded as the Secretary of State's submission. It should not be regarded as country information in the normal sense but as the caseworker's own assessment of that material. As such, it is to be assessed on its merits but should not be treated as if it were an expert report or having greater authority solely by reason of its coming from the UK Border Agency.

On appeal, in MD (Ivory Coast) v SSHD [2011] EWCA Civ 989, Sullivan LJ observed that these comments were "certainly relevant" as part of the assessment of evidence required by NA v United Kingdom (App no. 25904/07) and TK (Tamils - LP updated) Sri Lanka CG [2009] UKAIT 00049.

17.28 Given that they can certainly be relied on as representing Home Office policy, they are at least a useful means of identifying what the Home Office accepts in relation to country conditions. The policy statements in the CIG reports can be used in the same way. The fact that these documents are subjected to a degree of public scrutiny can render their assertions less extreme than some HOPOs are otherwise minded to advance. (Indeed, some HOPOs regularly refuse to concede anything about country conditions, saying somewhat ridiculously that it is all 'up to the Tribunal'.)

17.29 This use for the OGNs is illustrated by the case of MA (Operational Guidance - prison conditions - significance) Sudan [2005] UKAIT 00149. The Tribunal said that:

22. It is clear that the current Operational Guidance of the Home Office relating to the Sudan considers prison conditions in that country to breach the Article 3 threshold.

23. So long as that executive guidance remains essentially the same, we take the view that at the judicial level it should be expected that the Home Office will likewise concede on Article 3 grounds all appeals in which it is accepted that the appellant has been able to demonstrate a real risk of imprisonment on return to Sudan. Where such risk is related to one of the five Refugee Convention grounds, it will also be expected that the Home Office will normally concede on asylum grounds. In order to avoid unnecessary waste of judicial time and resources, any concessions made should not be left to the last minute.

17.30 In FS (domestic violence - SN and HM - OGN) Pakistan CG [2006] UKAIT 00023, the Tribunal confirmed that "Operational Guidance Notes (OGNs) provided by the Secretary of State for the Home Department for the guidance of his caseworkers are a statement of the position taken by him at the date they were issued but must be considered in the context of subsequent evidence about the situation in the country of origin" (headnote) and that "where it concedes that there is a risk to a particular class of person, then it must be considered as a statement of his views of the country in question on the date of the OGN" (para 50).

17.31 While the OGNs are readily accessible on the 'Country information and guidance' section of the Home Office website, you cannot rely on the HOPO following or even knowing the Home Office's policy. In Rashid v SSHD [2005] EWCA Civ 744, the Court of Appeal found a 'lamentable' failure to follow country specific asylum policy. The Home Office had a policy on Iraq at the relevant time to the effect that internal relocation to the Kurdish controlled north would not be relied upon for the very good reason that the Home Office was aware that the Kurdish authorities would not admit those who were not previously resident. (This illustrates a particular danger of the Home Office's failure to disclose country policies in asylum cases, namely that they may be based on facts of which the appellant and the Tribunal are unaware.) The Home Office admitted that

"the general policy described was not consistently applied, and caseworkers and presenting officers sometimes argued that internal relocation to the former KAZ for those from government controlled Iraq was a reasonable option if they had close ties to the area." (quoted at para 5 of the judgment)

17.32 Pill LJ observed that 'enquiries had been made internally but ... the Department had "never got to the bottom of how some caseworkers knew [of the policy] and some did not".' (para 6) He held that 'The failures in the Home Office in this case were startling and prolonged' (para 13) adding that

Understanding is more difficult when we are told by [counsel for the Home Office] that Iraq was at the material time a "top asylum country" in that there were many applicants from there. The situation there was of great public concern and I am unable to understand why a fundamental element in the asylum policy, the question of internal re-location to the KAZ, was unknown to all those who dealt with the claimant's case. (para 31)

...

... [T]he degree of unfairness was such as to amount to an abuse of power requiring the intervention of the court. The persistence of the conduct, and lack of explanation for it, contribute to that conclusion. This was far from a single error in an obscure field. A state of affairs was permitted to continue for a long time and in relation to a country which at the time would have been expected to be in the forefront of the respondent's deliberations. (para 36)

17.33 Dyson LJ described the Home Office's failure to ensure that officials were aware of and applied the policy as 'flagrant and prolonged incompetence' (para 53).

17.34 In R (A, H, and AH) v SSHD [2006] EWHC 526 (Admin), the Home Office sought to explain its failings through a full explanation of the history of the policy. Collins J said that

28. I have gone through the history and the explanations for the failures to apply the policy in some detail. It is a sorry story. I have no doubt that there was a failure to deal properly with these claims because all those concerned with them were not properly instructed. In the context of asylum claims, that is a lamentable state of affairs.

17.35 He concluded that

there was systemic failure which not only affected the decision but also led to the appellate authority being misled. Thus the claimant was deprived of the chance of having a fair decision not only from the administrators but also from the independent appellate body. (para 33)

17.36 The Home Office is legally obliged to refer the Tribunal to relevant policy, whether or not it assists its case and whether or not it is publicly available. In AA (Afghanistan) v SSHD [2007] EWCA Civ 12, Keene LJ held that 'as a matter of law',

The Secretary of State should draw relevant parts of his policy to the [Tribunal's] attention. Merely because those policy documents are publicly available in print or on a website is not enough: where issues of risk of persecution are involved, a decision to return a person or not to his country of origin should not depend on the diligence of that person's representatives. (para 28)

17.37 Keene LJ held that that rule applied even if the Home Office disputed the parts of the appellant's factual case to which (if those facts were accepted) the policy would be relevant.

Other documentary evidence

17. 38 Where there is no Home Office report on the country of origin, it is more common for it produce a bundle of country evidence, which will often be included in its rule 24 bundle (although note what is said in the Modernised Guidance on 'Prepare Appeals' referred to at para 10.13). These bundles seldom include Amnesty or Human Rights Watch reports. They are more likely to contain reports from national governments, including the relevant US State Department report (if the report contains any indication that the human rights situation is improving). Increasing co-operation amongst EU immigration authorities means that you are more likely to see their reports cited by the Home Office.

17.39 Many of the latter reports appear to carry no more weight, or tally no better with the independent evidence, than similar assertions made directly by the Home Office. Indeed, these Home Office assertions are apparently being quoted as 'objective evidence' by other EU immigration authorities. It will sometimes be necessary to point out that an unsupported assertion from one state's immigration authorities does not acquire an independent status simply because it is swapped around between other national immigration authorities. In Chinder Singh (G0055), the Tribunal expressed concern about the partiality of employees of the Canadian authorities, including its immigration service, who had commented on the country of origin. It said it would be 'circumspect' about accepting their evidence.

17.40 The US State Department reports are often more even-handed than those issued by EU authorities. But they are far from immune to the general objection to reports emanating from national governments that unlike independent human rights monitoring organisations, comment may be skewed by national (or government) interests. According to the US Lawyers Committee for Human Rights, these reports had been growing in accuracy and objectivity until 11 September 2001. But it reported to Congress on 30 April 2003 that the 'war on terror' had led to 'serious omissions and distortions', and 'many of these can be directly tied to a calculus of political expedience'. Indeed it was reported that the 2001 series of reports were delayed into March 2002, because the US Secretary of State had intervened personally 'amid some evidence of censorship - or at least soft-soaping - involving countries whose support is needed in the fight against terrorism' (Guardian, 5 March 2002). Similar concern has been expressed by US courts:

[T]here is perennial concern that the (State) Department soft pedals human rights violations by countries that the United States wants to have good relations with. (Gramatikov v INS 128 F.3d 619, 620)

17.41 The Tribunal has stated that it feels 'more comfortable' with the 'well-documented and sourced reports of NGOs (Amnesty and Human Rights Watch)' than the US State Department reports (Mario [1998] Imm AR 281).

Home Office compliance with directions

17.42 The standard directions issued with the notice of hearing require the Home Office, like the appellant, to submit any documentation five working days in advance of the full hearing. The Home Office may serve its country information at the CMRH (where one is held) or include it in its bundle served in response to the appeal under rule 24 (see chapter 10), but sometimes seeks to serve material on the day of the hearing. There is a perception that some judges appear more lenient towards this practice than to the non-compliance by the appellant.

17.43 Whether you object will depend upon how familiar you are with the Home Office's material and the extent to which it appears relevant and therefore needs to be addressed. If you have not seen it before, you will, at the very least, want an opportunity to read it before the appeal starts. In Macharia v Immigration Appeal Tribunal [1999] EWCA Civ 3001, the Court of Appeal was unimpressed by the argument that the fact that the material was in the public domain meant that it could be produced at the hearing without the appellant having an adequate opportunity to consider it. However, the Tribunal will normally expect you to be familiar with the COIS report if there is one, so do not expect a sympathetic response to a request for an adjournment if that is the evidence which the Home Office has produced.

17.44 If you are prejudiced by the late submission of documents with which you are not familiar and the HOPO can offer no satisfactory excuse, you may ask for the documents to be excluded. Rule 6(2) allows the Tribunal to take "such action as it considers just" in response to a failure to comply with directions, which must include refusing to consider documents which have not been served in accordance with directions. If that is refused, you should normally be entitled to an adjournment to consider the documents and whether you need to respond to them (see Macharia [1999] EWCA Civ 3001). If you have submitted your documentary evidence in good time rather than on the day of the hearing, your position will be strengthened. As indicate at 8.59, you may wish to consider applying for costs against the Home Office if an adjournment on the day has resulted from unreasonably submitting evidence at the hearing without prior notice.

17.44A Sometimes, the HOPO will simply refer the Tribunal to relevant paragraphs in the COI or CIG report without producing the report at all, and claim that he does not need to do so because it is available online. If you are not sufficiently familiar with the report to respond adequately to any submissions, you should object to this practice. You cannot be expected to have memorised a report which is often hundreds of pages long, although it is a good idea to take along a copy of the most recent COI report for your client's country of origin.

17.45 The requirement in the standard directions to produce a schedule of relevant passages from the bundle applies to the Home Office as well as appellants. The Home Office invariably fails to comply: where it does, the list is likely to be selective. Indeed, you can sometimes use other parts of its own bundle to rebut these passages. For example, the Home Office might refer to a report having stated that the Government has set up a commission of enquiry into torture or to government ministers having condemned human rights abuses as unacceptable. However, the same report might state that torture of detainees remains common.