Home Office evidence on the country of origin | Electronic Immigration Network

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Evidence

Last updated:

01 August 2023

Best Practice Guide to Asylum and Human Rights Appeals

by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup and Monika Nollet of Asylum Aid

~ Revised 2023 Edition ~

Chapter contents
Reports authored by the Home Office
Country Policy and Information Notes
Research in the country of origin
"Analysis" or Policy guidance
Other documentary evidence
Home Office compliance with directions

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 ('COIS') published three 'products' which included COI reports, COI bulletins, and fact-finding mission reports. These produces were limited to Country of Origin Information (COI), rather than explicitly containing statements of policy. Separate Operational Guidance Notes ('OGN'), produced by a different policy team, set out Home Office policy on types of claim from particular countries.

17.2 However from the beginning of 2014, UKVI introduced a new product, described as 'Country Information and Guidance' ('CIG') (now called 'Country Policy and Information Notes' ('CPIN')) which combined elements of COI reports and policy guidance. These reports are produced by the Country Policy Information Team ('CPIT'), which was the result of the merger in 2014 of COIS and the previous Country Specific Litigation Team ('CSLT') which previously produced Operational Guidance Notes. The name change in 2016 to CPIN followed criticism by the Upper Tribunal in MST and Others (national service – risk categories (CG) [2016] UKUT 00443 (IAC) that the use of the new terminology risked creating confusion between "Country Guidance" which is the function of the Upper Tribunal and "operational" or "policy" guidance which is properly the function of the executive. Regardless of their title, these reports are more thematic and deal with issues which commonly arise (e.g., 'blood feuds' or 'female victims of trafficking'), while remaining country specific. The current Country Policy and Information Notes are now located together, grouped by country, at https://www.gov.uk/government/collections/country-policy-and-information-notes.

17.3 […]

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 relied on or 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 (now repealed) to advise on the balance and reliability of Home Office country information. With the creation of the 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:

Section 48 (2) (j) of the UK Borders Act 2007 states that the Chief Inspector shall consider and make recommendations about 'the content of information and conditions in countries outside the United Kingdom which the Secretary of State compiles and makes available, for purposes connected with immigration and asylum, to immigration and other officials.'

The Independent Advisory group on Country Information (IAGCI) was established in 2009 to succeed the Advisory Panel on Country Information. IAGCI advises the ICIBI about the content and quality of country information and guidance notes produced by the Home Office and relied upon by decision makers.

IAGCI commissions and quality assures reviews from independent reviewers, typically academics with relevant knowledge and expertise, of selected country information. The work is funded by ICIBI. Following an IAGCI review, the ICIBI sends an inspection report to the Home Secretary with his recommendations.

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 the IAGCI has reviewed OGNs and its reviews now cover CPINs. Its terms of reference are available on its website. Its reviews, which are independently commissioned, are accessible through the National Archive for reviews published up to July 2016, and minutes of its meetings are published separately at the same place. Reviews since July 2016, together with the minutes of the IAGCI's meetings, are published on its website, together with the Home Office's responses, and provide useful material for critiquing CPINs. 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). In January 2018, the Independent Chief Inspector published a detailed report of an inspection, carried out between April and August 2017, of the Home Office's production and use of country information. That inspection was very critical of the combination of policy and information in the new CPINs (see 17.30A for the Tribunal's recent consideration of 'policy' in CPINs). In a Foreword, the Chief Inspector explained that:

However, the inspection identified a more fundamental problem with COI, and one that requires urgent attention. In order to achieve the purpose set out by UNHCR and recognised in the Immigration Rules, COI must be not only "reliable and up-to-date", but must also be presented in a way that permits decision makers to reach their own objective judgements and decisions on individual applications. As currently constructed, the Home Office's COI products do not do this.

As their title implies, Country Policy and Information Notes (CPINs) 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, particularly where a significant body of asylum decision makers are inexperienced, unfamiliar with COI, have insufficient time to master every detail, and are likely to interpret anything labelled "Policy" as something they are required to follow.

IAGCI will continue its programme of reviewing and advising on the content of specific COI products, and in doing so will undoubtedly add value by ensuring that information is as reliable, up-to-date and complete as possible. I will continue to send reports based on IAGCI's work to the Home Secretary to ensure that COI receives the attention it merits.

However, while it persists with COI products that combine country information and "Policy", produced by a team that has "Policy" in its title that sits in the Border, Immigration and Citizenship Policy and Strategy Directorate, any assurances I am able to give in relation to this area of the Home Office's work must remain heavily qualified.

17.6A Other problems identified by the inspection team with the work of the CPIT and the CPINs it produces included:

• Inadequate resourcing meaning that the team is unable to meet its own targets for updating CPINs or meet customer demand, leading to "the extent of largely unsupervised (and unknown to CPIT) research carried out independently by decision makers" (para 3.7), which was of variable quality and raised particular concerns about decision makers accessing COI produced by the Home Office but removed from the intranet because it was out of date (para 3.8);

• Failure at times to accept advice from Home Office Legal Advisers "that the legal position as set out in a draft CPIN needed clearer explanation, or that the country information was not reflected accurately" (para 3.14);

• Lack of awareness of the levels of inexperience and inadequate training among asylum decision-makers and the consequent risks to the appropriate use of COI (para 3.15), leading in particular (together with time pressures and the presentation of policy and information material in the same document) to decision makers tending only to read the "policy" section and not look at the underlying COI (para 3.17);

• Lack of training in policy development and only some staff having received intensive training on production of COI (para 3.18; 7.10); CPIT staff do not receive any training on gender issues (para 8.47);

• Failure to adhere to EU guidelines for the production of COI, including selective application of relevant guidelines (paras 3.24-3.25 and 3.28)

Country Policy and Information Notes

17.7 CPIT aims to produce CPINs for the top 20 countries in terms of numbers of asylum claims. Many of these contain a standard introduction which explains that:

Purpose

This note provides country of origin information (COI) and analysis of COI for use by Home Office decision makers handling particular types of protection and human rights claims (as set out in the basis of claim section). It is not intended to be an exhaustive survey of a particular subject or theme.

It is split into two main sections: (1) analysis and assessment of COI; and (2) COI. These are explained in more detail below.

Assessment

This section analyses the evidence relevant to this note – i.e. the COI section; refugee/human rights laws and policies; and applicable caselaw – by describing this and its inter-relationships, and provides an assessment on whether, in general:

• A person is reasonably likely to face a real risk of persecution or serious harm

• The general humanitarian situation is so severe that there are substantial grounds for believing that there is a real risk of serious harm because conditions amount to inhuman or degrading treatment as within paragraphs 339C and 339CA(iii) of the Immigration Rules / Article 3 of the European Convention on Human Rights (ECHR)

• A person is able to obtain protection from the state (or quasi state bodies)

• A person is reasonably able to relocate within a country or territory

• A claim is likely to justify granting asylum, humanitarian protection or other form of leave, and

• If a claim is refused, it is likely or unlikely to be certifiable as 'clearly unfounded' under section 94 of the Nationality, Immigration and Asylum Act 2002.

Decision makers must, however, still consider all claims on an individual basis, taking into account each case's specific facts.

Country of origin information

The country information in this note has been carefully selected in accordance with the general principles of COI research as set out in the Common EU [European Union] Guidelines for Processing Country of Origin Information (COI), dated April 2008, and the Austrian Centre for Country of Origin and Asylum Research and Documentation's (ACCORD), Researching Country Origin Information – Training Manual, 2013. Namely, taking into account the COI's relevance, reliability, accuracy, balance, currency, transparency and traceability.

The structure and content of the country information section follows a terms of reference which sets out the general and specific topics relevant to this note.

All information included in the note was published or made publicly available on or before the 'cut-off' date(s) in the country information section. Any event taking place or report/article published after these date(s) is not included.

All information is publicly accessible or can be made publicly available, and is from generally reliable sources. Sources and the information they provide are carefully considered before inclusion. Factors relevant to the assessment of the reliability of sources and information include:

• the motivation, purpose, knowledge and experience of the source

• how the information was obtained, including specific methodologies used

• the currency and detail of information, and

• whether the COI is consistent with and/or corroborated by other sources.

Multiple sourcing is used to ensure that the information is accurate and balanced, which is compared and contrasted where appropriate so that a comprehensive and up-to-date picture at the time of publication is provided of the issues relevant to this note at the time of publication.

The inclusion of a source is not, however, an endorsement of it or any view(s) expressed.

Each piece of information is referenced in a footnote. Full details of all sources cited and consulted in compiling the note are listed alphabetically in the bibliography

17.8 The CPINs tend to be shorter documents than the previous COI reports produced by COIS. The sources quoted, particularly in the information section, 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 CPINs 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 CPIN is contrary to your case, the best course will often be to instruct an expert to comment on it, although it is also worth consulting any IAGCI review for useful comment and if the CPIN points to certain reports in particular which are against your client's case, it will often be worth obtaining them in their entirety as the citation may be selective.

17.11 Do check the CPIN 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.

Research in the country of origin

17.12 As indicated, the CPINs 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 '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."

17.13AA 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.

17.13B The January 2018 report by the Chief Inspector confirmed that as at 2017, CPIT had "no set methodology for organising and delivering a fact-finding mission" (para 13.3) and that CPIT staff considered that the value of fact-finding missions varied, often depending on the engagement of the FCO officials in country (para 13.4).

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.

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. In MST and Others (national service – risk categories) Eritrea CG [2016] UKUT 00443 (IAC), the Upper Tribunal emphasised the importance of considering how sources are selected for a fact finding report, noting that "the value of FFM evidence depends on careful prior preparation aimed to ensure the interlocutors cover a wide spectrum of views and even then it may be necessary, as was the case with the DFFM Report on Eritrea, to rely on a "snowballing" approach whereby one contact recommends another and so on. The "snowballing" technique carries a real risk that sources chosen may not be as representative as otherwise. Even the most careful prior preparation and consultation may not obviate that risk."

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.

17.16CA 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...

17.16CB 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 has now returned to deliberately mixing country information and policy in the CPINs, and as noted above this was a cause for serious concern for the Independent Chief Inspector in his inspection of Home Office COI.

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.

17.19B It is now common practice for the interview notes to be included within the Fact-Finding Mission report, which will also state whether or not the notes have been approved by the interlocutor. In MST and Others (national service – risk categories) Eritrea CG [2016] UKUT 00443 (IAC), the Upper Tribunal described this as a "boon" for judicial fact-finders (para 169). In that case, in which a central issue was the reliability of a discredited Danish Fact Finding Mission report, the Home Office ultimately relied only on the evidence contained in the interview notes, rather than the analysis of that evidence, and the Upper Tribunal accepted that those notes could be relied on, providing they were subject to the usual rigorous scrutiny. It said that it "accepted the core criticism made by UNHCR and others - that the main text sometimes takes statements made by interviewees out of context and sometimes ascribes statements to interlocutors that are not contained in the interview notes – well made. By dint of such errors the main text cannot be described as a proper summary. Despite seemingly denying any wish to express policy ("The fact-finding report at hand does not include any policy recommendations"), the main body of the report is as much evaluative as it is descriptive and, insofar as it is evaluative, is significantly flawed." In contrast, it found that a UK Fact Finding Mission report relied on in the same case was reliable. Comparing it to the Danish report, it noted that:

We would first of all note that, no doubt in a conscious attempt to avoid the troubled waters that engulfed the DFFM Report, the UKFFM adheres very closely to the EU common guidelines on (Joint) Fact Finding Missions methodology for fact-finding missions. The terms of reference set out at Annex A identify exhaustively all the topics covered. Annex B identifies precisely what was sent to interviewees in advance. Annex C not only lists the sources consulted but specifies through whom the meeting/interview was arranged; the language of the meeting/interview and the status of notes in terms of whether approved or not. A section headed "FFM Team's 'Observations'" gives a purely descriptive account of what they observed. Of the 32 sources listed only four are purely anonymous; all others have some descriptor – e.g. "Diplomatic source…", "young people". Some are specifically identified. Furthermore, the notes contain 130 odd pages of verbatim accounts, setting out the questions, the answers and other minor features. We have also had furnished to us a witness statement from Martin Stares which devotes 7 pages to explaining the planning of the mission, its aims, terms of reference, how interlocutors were identified, dates of the mission and itinerary, methodology and how the interviews/meetings were conducted and the process for agreeing the Notes. Most notably, unlike the DFFM, the UKFFM attempts no executive summary – which has indisputably been the main target of the criticisms made of the former.

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 CPIT often have no recognised qualifications for the research they are carrying out, and as noted above, the Independent Chief Inspector found that more recent recruits had not undergone the same intensive research training which more long-standing staff had undertaken.

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.

17.22AA 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)

17.23AA 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 Direction 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.

17.23C A further source frequently relied upon by the Home Office in cases involving medical grounds are 'MedCOI'. The Home Office thematic CPINs relating to medical and healthcare provision say the following on MedCOI:

Project MedCOI is an Asylum and Migration Integration Fund (AMIF) financed project to obtain medical country of origin information. The project currently allows 11 European Union member states plus the UK, Norway and Switzerland to make use of the services of the 'MedCOI' team in the Netherlands and Belgium. The MedCOI team makes enquiries with qualified doctors and other experts working in countries of origin. The information obtained is reviewed by the MedCOI team, which includes medical doctors, before it is forwarded to the relevant COI Service.

17.23D The Home Office's use of MedCOI appears often to be by way of relying on short extracts from larger reports or responses to specific questions. There is perhaps a greater risk here than with CPINs generally of partially selected information or citation out of context. As with the general country information contained in CPINs, insofar as the MedCOI contradicts your client's case, you will need to examine sources relied upon and ideally instruct your expert to comment on the information it contains. If this source material is not publicly available, the Home Office should include it in its bundle if it intends to rely on the MedCOI reports in the appeal and if it does not you should ask the Tribunal for a direction.

"Analysis" or Policy guidance

17.24 As noted above, the Independent Chief Inspector was critical in his inspection report published in January 2018 of the inclusion of both policy and country information in the same document, and in particular of the use of the term "policy guidance" to describe the section of the report which was more analytical. As the Inspection report explained (para 3.17):

However, inspectors found that time pressures, inexperience, lack of training in the use of COI, plus the force of the term "policy", implying as it does a requirement to comply, were leading asylum decision makers and other users to turn straight to the "Policy guidance" section of the CPIN. From interviews and focus groups, it appeared that few went on to read much of the later, longer and more nuanced, "Country information" section

17.24A In response to that criticism, more recent CPINs no longer contain a section entitled "policy guidance" but instead an "assessment" section. The preface also now describes the purpose of this section as "analysing" the country information contained in the remainder of the report and contains a reminder to decision makers that they "must, however, still consider all claims on an individual basis, taking into account each case's specific facts" (emphasis in original) (see para 17.7). This reflects the Home Office's statement in its response to the Chief Inspector's report that it would amend the format of the reports to make this clearer, despite its rejection of the criticism that it should not produce policy alongside its country information. Its response states that:

We do not accept the contention that the Country Policy and Information Team (CPIT) should not produce "policy" guidance alongside its COI products. It is common practice to produce an analysis of the COI (whether this is called analysis, policy, guidance or a country position), to help hard-pressed caseworkers draw appropriate conclusions from the COI, while respecting that ultimately it is for them to adapt the COI material to the facts of the case before them.

17.25 Therefore, while the CPINs contain country information, and the separate guidance is now termed "assessment" rather than "policy", the Home Office's position is that it is entirely appropriate for it to publish policy, guidance or analysis (which it appears to consider amount to the same thing) alongside country information. Both the IAGCI reports and the Independent Chief Inspector have found that the Home Office continues to use evidence selectively to support the policy conclusions contained in this section (see paras 6.29-6.31 of the Chief Inspector's report).

17.26 […]

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.

17.27A 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. The same comments can be applied to the "Policy Guidance" or "Assessment" sections of CPINs.

17.28 Given that they can certainly be relied on as representing Home Office policy, the Assessment or Policy Guidance sections of CPINs are at least a useful means of identifying what the Home Office accepts in relation to country conditions. 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 CPINs is illustrated by the case of MA (Operational Guidance - prison conditions - significance) Sudan [2005] UKAIT 00149. The Tribunal said of Operational Guidance Notes (which then played the role now taken by the Analysis section of CPINs) 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).

17.30A In BH (policies/information: SoS's duties) Iraq [2020] UKUT 00189 (IAC), in the context of a determination concerning the extent of duty of the Home Office to bring publicly available country information to the Tribunal's attention, it was held that whether country information consists of 'policy' is a question of fact in each case. The Tribunal concluded that much of the 'analysis' section of the Iraqi CPINs did not in fact contain 'policy' but rather COI. It does not appear that the Tribunal in BH (policies/information: SoS's duties) Iraq [2020] UKUT 00189 (IAC) had before it the Chief inspector's report and the Home Office's response (see 17.24 above) or the case law at 17.27-30. The findings indeed appear to have been influenced by the focus of the appeal on the Respondent's disclosure obligations. In any event, the conclusions in BH were fact-specific; there was not a finding that no CPIN could contain Home Office policy (a proposition that the Home Office would also appear to disagree with: see 17.24). See also chapter 9.

17.31 While the CPINs are readily accessible on the relevant section of the Gov.UK website, you cannot rely on the HOPO following or even knowing their contents. 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 Where the CPIN has the character of policy, 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. This decision was approved by the Supreme Court in Mandalia v SSHD [2015] UKSC 59 and applied in UB (Sri Lanka) v SSHD [2017] EWCA Civ 85, where the Court of Appeal quashed the decisions of the First-tier Tribunal and Upper Tribunal because of the Home Office's failure to draw relevant country guidance (communications from the British High Commission contained in a CPIN) to the Tribunals' attention. It made no difference that, as was accepted, the guidance in question was available on the Home Office website and could have been accessed by the appellant's representatives. Irwin LJ said that:

21 I deprecate any suggestion that this obligation of service is displaced or diminished by the availability of the material online. Mr Hare for the Secretary of State did not in fact mount this argument, although it seems likely from exchanges before the hearing that he was pressed to do so. He was right to decline such an argument. Apart from the clear obligation in law derived from authority, many appellants in immigration and asylum cases are unrepresented. In a number of cases where there is legal representation, the quality of representation is less than optimal.

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.

17.37A As discussed above, the Tribunal in BH (policies/information: SoS's duties) Iraq [2020] UKUT 00189 (IAC) discussed UB (Sri Lanka) v SSHD [2017] EWCA Civ 85 and distinguished the material from the High Commission contained within the country information in UB:

…by choosing to place the government's own private communications from its High Commission on the website, the respondent had decided to treat them as authoritative and make them part of her policy on assessing claims to international protection made by Sri Lankan nationals ([56]).

17.37B Following BH, therefore, in determining whether the Home Office has a duty to bring publicly available country information to the Tribunal's attention, it will be necessary to establish that it has the character of policy in the sense described in BH and UB (Sri Lanka).

Home Office compliance with directions

17.42 Under the MyHMCTS reform procedure, the Home Office is required by the standard directions to submit its bundle not later than 28 days after the Notice of Appeal is provided to the Tribunal. The Home Office may serve any further country information it relies on at the review stage. Sometimes, however, HOPOs seek 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 CPIN 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 indicated at para 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 CPIN without producing the report at all, and claim that they do 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 and request time to consult the relevant paragraphs. You cannot be expected to have memorised the report, although it is a good idea to have a copy of the most recent CPIN for your client's country of origin accessible to you. Access to wifi in all hearing centres simplifies the task of accessing material publicly available online. You may also refer to the deprecation in UB (Sri Lanka) v SSHD [2017] EWCA Civ 85 of the idea that a Home Office failure to produce a relevant policy could be excused by the fact that it is available online, although note the comments of the Tribunal in BH (policies/information: SoS's duties) Iraq [2020] UKUT 00189 (IAC) as to what is covered by that judgment (see 17.37 and 17.30A above).