and Alison Pickup and Monika Nollet of Asylum Aid
Relevance
18.1 'Country information' is used here to refer to evidence about country conditions excluding expert evidence (section 4) and documentary corroboration (see chapter 16).
18.2 The importance of country information to the evaluation of present risk is obvious. But it is also critical to determining disputes over credibility. In R v IAT, ex parte Sardar Ahmed [1999] EWHC 534 (Admin) [1999] INLR 473, David Pannick QC held that an adjudicator 'erred in principle' when she reached a conclusion on credibility in isolation from any conclusions as to relevant country conditions.
18.3 That also reflects the consistent caselaw of the Tribunal. In Jeyakumar v SSHD (18779), it noted that:
In Horvath, the Tribunal reminded Special Adjudicators that the probative value of an asylum seeker's evidence must be evaluated in the light of what is known about the conditions in the country of origin. If a Special Adjudicator fails to relate an appellant's story to the background evidence on the appellant's country, he has necessarily applied the wrong approach in the case.
18.4 That applies regardless of whether (indeed, especially where) the judge claims not to have believed a word the appellant said. In Kavuma v SSHD (00/TH/00563), the Tribunal considered a finding by an adjudicator that 'The appellant's claim is so lacking in credibility that it is not incumbent upon me to consider the objective situation...' The following passage from Kavuma is worth quoting at length:
22 . . . The Special Adjudicator might have intended to say, but did not say, that after a detailed and anxious scrutiny of all the evidence in the appeal she had been drawn to the clear conclusion that she did not believe anything the appellant said that was material to the question of whether he has a well-founded fear of persecution for a Convention reason. He had not made out his case because she did not believe him. We emphasise 'all' the evidence, which should have included the objective country evidence.
23. There may be a very limited number of special circumstances in which the objective country evidence is of no relevance. For example, this might arise if the appellant was found not to be a citizen of and had not lived in the country where he claimed to fear persecution. However, in the vast majority of cases, the objective country evidence will not be totally irrelevant. This is such a case . . .
24. Passages in the judgments of Lord Justice Brooke and Lord Justice Sedley (in Karanakaran) . . . support this view; . . .
26. Lord Justice Sedley said, at page 30, 'The issues for a decision-maker under the Convention (whether the decision-maker is a Home Office official, a special adjudicator or the Immigration Appeal Tribunal) are questions not of hard fact but of evaluation: does the applicant have a well-founded fear of persecution for a Convention reason? Is that why he is here? If so, is he nevertheless able to find safety elsewhere in his home country? Into all of these, of course, a mass of factual questions enters: what has happened to the applicant? What happens to others like him or her? Is the situation the same as when he or she fled? Are there safer parts of the country? Is it feasible for the applicant to live there? Inseparable from these are questions of evaluation: did what happened to the applicant amount to persecution? If so, what was the reason for it? Does what has been happening to others shed light on the applicant's fear? Is the home situation now better or worse? How safe are the safer places? Is it unduly harsh to expect this applicant to survive in a new and strange place?' The emphasis is ours.
27. There are valid and important reasons which could have led to the conclusion that the Special Adjudicator did not believe anything the appellant said that was material to the question of whether he has a well-founded fear of persecution for a Convention reason. However, the Special Adjudicator should have looked at and made an assessment of the objective country information. Had she done so she might have concluded that what the appellant claimed had happened to him was not reasonably likely to happen in Uganda. She might have concluded that such events were reasonably likely to happen in Uganda but that, nevertheless, the appellant's credibility was so damaged that she did not believe anything he was saying which was relevant to his claim for asylum. It was not open to her to disregard the objective country information. The failure to do so makes the determination fatally flawed.
18.4A In KA (draft-related risk categories updated) Eritrea CG [2005] UKAIT 00165 (para 10-11), the Tribunal pointed to the need to consider each refugee appeal in the context of the evidence as a whole: what was stated in the 1979 UNHCR Handbook at paragraph 42 as the requirement that:
"..............The applicant's statements cannot, however, be considered in the abstract, and must be viewed in the context of the relevant background situation. A knowledge of conditions in the applicant's country of origin - while not a primary objective- is an important element in assessing the applicant's credibility".
There must always be an assessment of the particular circumstances of the individual case. But that assessment must be made in the context of the background evidence relating to conditions in the country generally. This is now expressly recognised in para 339J(i) of the Immigration Rules which requires decision-makers to take account of:
(i) all relevant facts as they relate to the country of origin or country of return at the time of taking a decision on the grant; including laws and regulations of the country of origin or country of return and the manner in which they are applied;
18.4B The Home Office's API on Assessing Credibility and Refugee Status also explains (under the heading "External consistency"):
The claimant's testimony and other evidence should be consistent with available Country of Origin information (COI) about the country of claimed persecution. It should also be consistent with any other available information or expert evidence, for example medical, social and cultural information, language analysis or document verification reports. Claimants may also provide evidence from third parties, such as statements from members of a claimant's family, church, political party or community. The greater the correlation between aspects of the account and external evidence, the greater the weight you should attach to those aspects
COI and other external evidence must be considered in the round with the claimant's evidence. One cannot properly be assessed without considering the other
And (under the heading 'Plausibility'):
The plausibility of an account is assessed on the basis of its apparent likelihood or truthfulness in the context of the general country information and/or the claimant's own evidence about what happened to them.
You must not base implausibility findings solely on your own assumptions, conjecture, or speculative ideas of what ought to have happened, what you might think someone genuinely fleeing for their life should have done, how you think a person would have behaved, or how you think a third party would have acted in the circumstances…18.5 Researching and presenting the right country information is therefore one of the most important elements in the preparation of most appeals.
18.6 The Tribunal is often critical of the volume of country information which they receive in support of an appeal. But it is not volume in itself which is objectionable. In R v SSHD, ex parte Turgut [2000] EWCA Civ 22, the Court of Appeal remarked upon the heavy burden of considering over 1500 pages of material placed before it on the risk to expelled Turkish Kurdish asylum seekers. It heard two days of oral argument largely addressed to that documentary evidence. But it did not dispute the necessity of shouldering this heavy burden.
18.7 What is objectionable, however, is irrelevant country information. You should not create a 'generic' country bundle containing every human rights report you can find on a particular country and simply add to it whenever a new country report appears. A judge will be justifiably annoyed to be presented with a 'generic bundle' of several hundred pages, the relevance of which the advocate is unable to explain except as 'general background'. It may well be useful for a judge (like a representative) to read a report in order to get an overview of a country with which he is unfamiliar. But he is unlikely to need (or be prepared) to read several hundred pages for that purpose.
18.8 That does not mean that a small country bundle will be appropriate in every case. Omitting relevant material is worse than including irrelevant material. In some cases, there is a large amount of relevant material on disputed issues which needs to be before the court. But the larger the bundle, the more likely the Tribunal will be to query it, so the more rigorous you need to be in satisfying yourself as to its relevance. Do not add anything to a country bundle without asking yourself what it adds to your case. In what circumstances will you need to rely on it? What is its purpose in this bundle?
18.9 An obvious first step would be to contact the Home Office to agree in advance what points about the country are in dispute, so that the country information can be limited to these issues (and perhaps its contents agreed). However, this depends upon whether there is a Home Office official willing and able to engage in such discussion sufficiently in advance. Unfortunately, it is in most cases, unlikely. The focus in the reform procedure on narrowing the issues and the Home Office review, may increase the likelihood of engagement from the Home Office. You should raise any country-specific issues on which the Home Office's position is unclear in your Appeal Skeleton Argument and request a CMRH if there is no substantive response from the Home Office.
18.10 Some guidance as to the Home Office's position can be obtained from the country information which it produces, e.g. the Country Policy and Information Notes (chapter 17). If a Home Office report accepts that torture in detention is routine, there is no need to produce reports solely to establish this point. Similarly, if this has been accepted in a recent Country Guidance decision, it should not be necessary to produce evidence to re-establish the point in the absence of any argument from the Home Office that conditions have improved. It may still, however, be necessary to produce the same report in order to identify who is at risk of detention.
18.11 If an issue is in dispute, you need not restrict yourself to one report supporting your argument. It will often be helpful to show that a number of reliable reports support your contention, in order to contrast that with the scant support for the Home Office position.
18.12 You may be advancing a number of alternative arguments to allow for whatever credibility finding the Tribunal makes. For example, you may not need much material to establish present risk on the basis of your client's past persecution (if that is accepted), but a great deal more material to show that she would also be at risk simply because of her ethnicity. If credibility is in issue, it all has to be before the Tribunal. But use your skeleton argument to explain why it is there.
18.13 You will often be relying on country information to show that your client's account of past ill-treatment is consistent with contemporaneous country conditions and so should be accepted. That may involve submitting older material from the period in which the events your client recounts occurred, even if the position has changed since.
18.13A It is also important to evaluate the reliability and objectivity of the source of any evidence you put forward. Just as you will subject the Home Office's evidence to scrutiny to see what weight can properly be placed on it, so it may be that the Home Office – or more likely the Tribunal – subjects your own country evidence to close scrutiny.In MD (Ivory Coast) v SSHD [2011] EWCA Civ 989, the Court of Appeal considered the Strasbourg Court's approach to the assessment of country evidence in NA v UK (App no. 25904/07), as followed by the Tribunal in TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049, to be authoritative: see paras 42, 46 (per Sullivan LJ) and §50 (per Toulson LJ) and §53 (per Pill LJ). The Strasbourg Court had held in NA that:
120. In assessing [country evidence], consideration must be given to its source, in particular its independence, reliability and objectivity. In respect of reports, the authority and reputation of the author, the seriousness of the investigations by means of which they were compiled, the consistency of their conclusions and their corroboration by other sources are all relevant considerations (see Saadi v. Italy, cited above, § 143).
121. The Court also recognises that consideration must be given to the presence and reporting capacities of the author of the material in the country in question. In this respect, the Court observes that States (whether the respondent State in a particular case or any other Contracting or non-Contracting State), through their diplomatic missions and their ability to gather information, will often be able to provide material which may be highly relevant to the Court's assessment of the case before it. It finds that same consideration must apply, a fortiori, in respect of agencies of the United Nations, particularly given their direct access to the authorities of the country of destination as well as their ability to carry out on-site inspections and assessments in a manner which States and non-governmental organisations may not be able to do.
122. While the Court accepts that many reports are, by their very nature, general assessments, greater importance must necessarily be attached to reports which consider the human rights situation in the country of destination and directly address the grounds for the alleged real risk of ill-treatment in the case before the Court."
18.13B You should consider the same factors in your own review of the available country evidence when deciding what to rely upon. Note also the warning given by the Tribunal in TK [2009] UKAIT 00049 that:
It is still widespread practice for practitioners and judges to refer to "objective country evidence" when all they mean is background country evidence. In our view, to refer to such evidence as "objective" obscures the need for the decision-maker to subject such evidence to scrutiny to see if it conforms to the COI standards just noted. This practice appears to have had its origin in a distinction between evidence relating to an individual applicant (so-called "subjective evidence") and evidence about country conditions (so-called "objective evidence"), but ... even this distinction can cause confusion when there is an issue about whether an appellant's subjective fears have an objective foundation. We hope the above practice will cease. (para 7)
Researching country information
18.16 There are a number of electronic resources which facilitate effective research and make it easier to tailor the information you present to the issues that arise in the individual appeal.
18.17 The HJT Country Database is a subscription service available on the EIN. The database contains over 300,000 reports on over 100 countries. All reports are in html format and can be compiled into court ready bundles using the HJT/EIN bundle-maker facility. The database includes sections on women's rights issues and sexual orientation, and is fully searchable. The UNHCR's Refworld (http://www.refworld.org/) features a freely available database of country information. Refworld contains a vast collection of reports relating to situations in countries of origin, policy documents and positions, and documents relating to international and national legal frameworks. The European Country of Origin Information Network or ECOI is a comprehensive and up-to-date collection of links to original documents. The ECOI database is freely available and fully searchable. ECOI also includes maps and national laws. Another useful database of country information is the United Nation's Reliefweb. Focusing mainly on humanitarian issues, the database contains over 700,000 documents and maps dating back to 1981.
18.18 Although many of their reports will be available from the sources above, you can also review the websites of the major international human rights NGOs such as Amnesty International (www.amnesty.org) and Human Rights Watch (www.hrw.org). Some, including Amnesty, have an email service to which you can subscribe to receive press releases. The International Crisis Group (www.crisisgroup.org) and Freedom House (www.freedomhouse.org) often have useful information. Some NGOs specialise on specific countries, ethnic groups or issues, e.g. Outright Action International (formerly the International Lesbian and Gay Human Rights Commission) (https://www.outrightinternational.org/). Freedom from Torture has a country reporting programme which has produced reports based on analysis of forensic medical evidence produced by the Medico-Legal Report service and referrals for treatment services (http://www.freedomfromtorture.org/help-for-survivors/medico-legal-repor…).
18.19 The country information produced by the Canadian independent documentation centre is well respected (https://irb-cisr.gc.ca/en/country-information/Pages/index.aspx). Of reports produced by governments, the best known are the annual reports of the US State Department (https://www.state.gov/reports-bureau-of-democracy-human-rights-and-labor/country-reports-on-human-rights-practices/ - for commentary on reports produced by other States' governments, see chapter 17). You should also check the Home Office's own reports, though for a different purpose (see chapter 17). The reports of any national government should be treated with caution in light of the risk of distortion where accurate assessment is inconsistent with its national interests (para 17.25).
18.20 There is no substitute for searching the Internet yourself for the most recent information, particularly where country conditions are unstable. However, you should always exercise judgment about the reliability and likely accuracy of any internet reports.
18.21 Recent reports from reliable news media are often a good and graphic way of providing information on present dangers. They sometimes have more impact than the standard human rights reports which judges are more used to seeing. They demonstrate the concern felt in the wider community about events. The information is direct and easily digestible.
18.22 News reports are, of course, essential where the situation is changing rapidly. Parties are under a particular duty in such circumstances to provide up to date information 'if necessary by reference to developments taking place the day prior to the hearing' (Yasotharan v SSHD (00/TH/01816)). They can be vital to rebut Home Office claims that conditions have improved recently - particularly where they post-date the material relied upon by the Home Office.
18.23 Always check for any very recent news reports on the country of origin. You can also do more focused searches, for example by an ethnic group or the name of an organisation, or individual. Where matters like the existence or nature of an organisation are in issue and it is not mentioned in the main country reports, finding such news reports can be invaluable.
18.24 Google News is an excellent place to start searching for the latest stories. The best site of the news organisations is that of the BBC (news.bbc.co.uk). This has an effective search engine. Other useful media sites include CNN's (www.cnn.com). Several UK newspapers have comprehensive sites including the Guardian (www.theguardian.com/uk), The Times (www.thetimes.co.uk), and the Telegraph (www.telegraph.co.uk), although most of the latter two are now behind a paywall. Foreign newspapers sites like the New York Times (www.nytimes.com), which also uses a paywall, are similarly valuable. Do not overlook web only resources such as Institute for War and Peace Reporting (www.iwpr.net).
18.25 News organisations in the country of origin or nearby countries can offer information not picked up by western news sites (though plainly, their value depends upon affiliation and press censorship). Paperboy (www.thepaperboy.com) offers a superb portal for newspapers around the world. If the relevant newspapers are not available in English, you should arrange for someone (e.g. an expert or one of your interpreters) to monitor them or search for specific information.
18.26 Increasing numbers of mainstream news publishers now charge for access to some content. Depending on the requirements of the case, any charges may be justifiable as disbursements for the purposes of public funding.
18.32 Google and other search engines can be used to search by name, e.g. for information on a particular organisation or individual or a particular event. You will often find the website of the organisation with which your client is involved, as well as more obscure reports and articles about it. This may well assist in establishing its nature and activities. If the site is in a foreign language, you will have to engage someone to translate it prior to submitting it. Online translation services such as Google's are improving and now provide useful translations for research purposes but remain far from perfect. They can be used to help you work out if it is worth getting a professional translation.