Citing authorities and legal research

Tribunal Determinations

29.1 There are five categories of Tribunal determination: starred, country guidance, reported, unreported, and unreportable.

29.2 S.107(3) of the 2002 Act provides that practice directions issued for the Immigration and Asylum Chamber "may require the Tribunal to treat a specified decision of the Tribunal or Upper Tribunal as authoritative in respect of a particular matter." The Practice Directions provide for two categories of determination to be treated as authoritative in respect of particular matters.

29.2A In Adam (Rule 45: authoritative decisions) [2017] UKUT 00370 (IAC) the Upper Tribunal considered the question of whether a case which is 'authoritative' per section 107(3) of the 2002 Act is to be treated as one which is 'binding' within the meaning of rule 45 and 46 of the Tribunal Procedure (Upper Tribunal) Rules 2008, which provide:

45.(1) On receiving an application for permission to appeal the Upper Tribunal may review the decision in accordance with rule 46 (review of a decision), but may only do so if –

(a) when making the decision the Upper Tribunal overlooked a legislative provision or binding authority which could have had a material effect on the decision; or

(b) since the Upper Tribunal's decision, a court has made a decision which is binding on the Upper Tribunal and which, had it been made before the Upper Tribunal's decision, could have had a material effect on the decision.

The Tribunal answered the question affirmatively (at [7]):

It appears to us that for these purposes the notion of a case being authoritative has sufficient parallels with the binding nature of a decision binding as a point of law. The elevation to "authoritative" status by means of the CG designation has the effect that it is not open to a Tribunal affected by the decision simply to decide a case on its own motion, in a sense contrary to that indicated by the decision in question in the same way as if there were a binding decision.

29.2B It is important to note following the Tribunal's decision in Adam [2017] UKUT 00370 (IAC) that the finding is limited to rules 45-46 of the Upper Tribunal Procedure Rules. It is not a general finding that Country Guidance determinations are 'binding'; the effect of s.107 of the 2002 Act and the Practice Directions is to treat Country Guidance determinations as authoritative in any subsequent appeal that relates to the Country Guidance issue in question and depends on the same or similar evidence. They therefore provide a convenient guide to the likely treatment of those claiming international protection who fall into a category covered by a Country Guidance case but they are no more than a judicial assessment of the evidence on which they are based and are not intended to exclude other relevant evidence which the parties in particular cases are able to adduce: see SA (Sri Lanka) v SSHD [2014] EWCA Civ 683 at [12].

Starred determinations

29.3. The Tribunal's Practice Direction states that

9.1 Reported determinations of the Tribunal, the AIT, and the IAT, which are "starred" shall be treated by the Tribunal as authoritative in respect of the matter to which the "starring" relates, unless inconsistent with other authority that is binding on the Tribunal.

29.4 There have been no starred determinations in recent times, the most recent at time of writing having been promulgated in 2006. A list of starred determinations (last updated in 2007) is available on the Upper Tribunal judiciary website here. They are binding on points of law only, and not on points of fact. Presidential Guidance Note No 2 of 2011: Reporting decisions of the Upper Tribunal Immigration and Asylum Chamber (which is no longer published on the Tribunal's website but remains available online) indicates that:

In the event of diverging jurisprudence on an important question of law, a decision of a panel of the Chamber may be reported as a starred case, when it will become binding. …(para 10)

Country Guidance

29.5. Country Guidance determinations are far more numerous. The Practice Direction provides that

9.2 A reported determination of the Tribunal, the AIT or the IAT bearing the letters "CG" shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Upper Tribunal, the AIT and the IAT that determined the appeal. As a result, unless it has been expressly superseded or replaced by any later "CG" determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:

(a) relates to the country guidance issue in question; and

(b) depends upon the same or similar evidence.

9.3 A list of current CG cases will be maintained on the Tribunal's website. Any representative of a party to an appeal concerning a particular country will be expected to be familiar with the current "CG" determinations relating to that country.

9.4 Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as a ground for appeal on a point of law.

Nature and status of country guidance

29.6 In NM and Others (Lone women - Ashraf) Somalia CG [2005] UKIAT 00076, the Tribunal explained the difference between starred determinations and Country Guidance:

[Starred decisions] ... are decisions which are binding on points of law. The requirement to apply CG cases is rather different: they should be applied except where they do not apply to the particular facts which an Adjudicator or the Tribunal faces and can properly be held inapplicable for legally adequate reasons; there may be evidence that circumstances have changed in a material way which requires a different decision, again on the basis that proper reasons for that view are given; there may be significant new evidence which shows that the views originally expressed require consideration or revision or refinement, even without any material change in circumstances. It may be that the passage of time itself or substantial new evidence itself warrants a re-examination of the position, even though the outcome may be unchanged. It is a misunderstanding of their nature, therefore, to see these cases as equivalent to starred cases. The system does not have the rigidity of the legally binding precedent but has instead the flexibility to accommodate individual cases, changes, fresh evidence and the other circumstances which we have set out.

29.6A The Presidential Guidance Note No 2 of 2011: Reporting decisions of the Upper Tribunal Immigration and Asylum Chamber (which is no longer published on the Tribunal's website but remains available online) states that:

11. … If there is credible fresh evidence relevant to the issue that has not been considered in the Country Guidance case or, if a subsequent case includes further issues that have not been considered in the CG case, the judge will reach the appropriate conclusion on the evidence, taking into account the conclusion in the CG case so far as it remains relevant.

12. Country Guidance cases will remain on the UTIAC web site unless and until replaced by fresh Country Guidance or reversed by a decision of a higher court. Where Country Guidance has become outdated by reason of developments in the country in question, it is anticipated that a judge of the First-tier Tribunal will have such credible fresh evidence as envisaged in paragraph 11 above. Where there is reasonable doubt as to whether Country Guidance is still applicable permission to appeal to the UTIAC may well be given in an appropriate case.

29.7 The Court of Appeal has endorsed the status of Country Guidance determinations, holding that it will amount to an error of law to depart from Country Guidance without good reason "explicitly stated": (R (Iran) & Ors v SSHD [2005] EWCA Civ 982). The European Court of Human Rights has also indicated that it considers the system of Country Guidance to be a useful one (NA v. UK (App no. 25904/07)), and where there has been detailed consideration by the Tribunal in a Country Guidance case (or cases), it is unlikely to disagree with its conclusions (see e.g. H and B v. UK (App nos. 70073/10 and 44539/11) (2013) 57 E.H.R.R. 17, in which it said it saw no reason to disagree with the Tribunal's assessment of the level of violence in Afghanistan in four country guidance determinations between 2009 and 2012). In HF (Iraq) & Ors v SSHD [2013] EWCA Civ 1276, Elias LJ observed that:

Country guidance cases play an extremely important role in the field of asylum. Whether an individual will be safe on return to any particular state is ultimately a factual question which is likely to depend on the particular characteristics of the individual and the risks to which he or she will be subject on return. There is frequently detailed and extensive evidence about this, including country reports emanating from a variety of expert bodies both national and international, of which the reports of the United Nations High Commissioner for Refugees ("UNHCR") are usually given particular weight; reports from non-governmental organisations; information gleaned from the media; and expert evidence from individuals with specialist knowledge and understanding of the country in question. It would plainly be unnecessarily time-consuming and expensive if in each case the particular tribunal had to re-assess that evidence afresh, and there would be a real risk of inconsistent answers giving rise to claims of unfairness.

29.8 In SI (reported cases as evidence) Ethiopia [2007] UKAIT 00012, the Tribunal summarised the position as follows:

21... [A] a country guidance case should continue to be treated as an authoritative finding on the country guidance issue(s) identified until it is removed from the AIT website list of CG cases. If a case remains on the website as a CG case, it continues to furnish country guidance unless a later case expressly supersedes or replaces it as CG. That does not, however, prevent that case not being followed on a relevant issue if, in the context of a particular case, there is fresh evidence compelling a different view, albeit "[t]he wider the risk category posited the greater the duty on an Immigration Judge to give careful reasons [for not following a CG case] based on an adequate body of evidence" (MK (AB & DM confirmed) Democratic Republic of Congo CG [2006] UKAIT 00001).

22. There is a very limited exception to this principle. It does not arise in this case, but we mention it here for completeness. If a case designated as country guidance (CG) is subsequently found by the higher courts to have been wrong in law because it is considered that the Tribunal's approach to the assessment of the facts was legally flawed, then the effect is that it was never right to follow its guidance (see OM (AA1 wrong in law) Zimbabwe CG [2006] UKAIT 00077).

29.9 The Tribunal considers that the authoritative status of Country Guidance is not affected by it being obiter (ie where the guidance was not material to the result of the appeal in which it was given). In KA (draft-related risk categories updated) Eritrea CG [2005] UKAIT 00165, the Tribunal said that:

11... In almost every asylum or asylum-related case the Tribunal is concerned with the particular and the general. It is a matter for this Tribunal, not representatives, to decide when a case is suitable for the giving of country guidance. In cases where the Tribunal decides to focus particularly on general country issues, it will often seek to alert the parties about this and invite relevant evidence and submissions. This is precisely what happened here.

12. It is for the Tribunal to decide whether to make use of the evidence before it to make findings on issues relating to the general country situation or relating to certain categories of persons in that country. Whilst it is open to the parties (as here) to make submissions about what the scope of issues relating to country guidance are or should be, it is for the Tribunal to decide how broadly or narrowly to draw them.

13. Normally the Tribunal will not seek to set wide-ranging guidance when the case before it concerns an issue affecting a small category of persons (e.g. a small tribe or a minor political party). But that is essentially a matter of judgment for the Tribunal and even here it may consider departing from normal practice if, for example, the evidence before it deals comprehensively with the position of small tribes or small political parties in the overall tribal or clan or political systems.

29.10. In KK (Unreported decisions - Practice Directions) Sudan [2006] UKAIT 00008, the Tribunal said that:

There is a general duty on representatives to ensure that the materials they adduce cover the latest Tribunal guidance. (para 8)

29.11 However, even if neither party refers the Tribunal to the Country Guidance, it will be an error of law to fail to address it. That was established by DK (Serbia) & Ors v SSHD [2006] EWCA Civ 1747 where although the IJ was "not to be blamed" for being unaware of recently promulgated Country Guidance, "his failure to take them into account meant that his decision cannot stand" (para 57).

29.11A In Secretary of State for the Home Department v FY (Somalia) [2017] EWCA Civ 1853 the Court of Appeal held, endorsing the Upper Tribunal's decision below, that the application by the Tribunal of country guidance cases is not a tick-box exercise. In that case, the Secretary of State had appealed against the Tribunal's finding that by deporting the appellant there would be a real risk of violating his rights under Article 3 ECHR (applying MOJ and others (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC)). The Court held that what the Secretary of State had characterised as inconsistency with the Country Guidance was, in reality, 'a straightforward attack upon findings of fact which led to a conclusion with which the SSHD does not agree' (at [24]).

29.12 Reported determinations (see below) which are not designated Country Guidance cannot be relied upon in the same way as Country Guidance determinations, regardless of what they say about country conditions. In SI (reported cases as evidence) Ethiopia [2007] UKAIT 00012, the Tribunal held that "unless designated as CG, reported cases are not binding on country guidance issues".

Standard of reasoning required and criticism of Country Guidance determinations

29.13 In S & Ors v SSHD [2002] INLR 416 [2002] EWCA Civ 539, the Court of Appeal held that when Country Guidance is given,

29. A principal safeguard will lie in the application of the duty to give reasons with particular rigour. We do not mean to say that the IAT will have to deal literally with every point canvassed in evidence or argument; that would be artificial and disproportionate. But when it determines to produce an authoritative ruling upon the state of affairs in any given territory it must in our view take special care to see that its decision is effectively comprehensive. It should address all the issues in the case capable of having a real as opposed to fanciful bearing on the result, and explain what it makes of the substantial evidence going to each such issue. In this field opinion evidence will often or usually be very important, since assessment of the risk of persecutory treatment in the milieu of a perhaps unstable political situation may be a complex and difficult task in which the fact-finding tribunal is bound to place heavy reliance on the views of experts and specialists. We recognise of course that the IAT will often be faced with testimony which is trivial or repetitive. Plainly it is not only unnecessary but positively undesirable that it should plough through material of that kind on the face of its determination.

29.13A In HM and RM (Iraq) v SSHD [2011] EWCA Civ 1536, Richards LJ observed that:

Whether or not country guidance determinations can properly be described as "declaratory" in nature, they have a status and significance comparable to that which declarations can have in public law cases, and it is just as important that there should be proper argument in them. "Proper argument" in this context encompasses not just argument on the law but also the drawing of relevant materials to the attention of the tribunal and the making of submissions as to the effect of those materials, so that the determination is based on as full and informed an analysis as possible. (para 39)

29.14 Significant concerns have been expressed about the process by which cases are designated Country Guidance and about how decisions are arrived at: see eg the IAS's report Country Guideline Cases: benign and practical?. That report made the following recommendations:

(i) There should be greater transparency and consultation over the criteria for designating, or not designating, Country Guideline cases and over major issues such as the country groups re-organisation of the Tribunal. Stakeholder groups exist but are not utilised by the Tribunal.

(ii) The Tribunal must observe the requirements for an effectively comprehensive analysis set out by the Court of Appeal in S and Others.

(iii) Country Guideline cases must be fully and properly referenced so that the evidence considered in a guidance case can be identified and challenged.

(iv) Additional research resources are required if an effectively comprehensive analysis is to be achieved. The deficiencies in many of the cases examined indicate that Country Guideline cases cannot be left to the vagaries of the adversarial system. An 'assisting-counsel' system would be beneficial.

(v) Greater efforts should be made to link related cases to afford a better opportunity for a genuinely comprehensive analysis of all the relevant issues, based on a firmer factual foundation.

(vi) Greater caution should be exercised in designating Country Guideline cases. The Tribunal must show greater willingness not to designate a case as a Country Guideline one and to 'de-designate' when appropriate. All backdated Country Guideline cases should be removed and all cases over one year old should also be removed.

(vii) The Tribunal must be explicit and specific about the issues that are designated as guideline issues to avoid case-specific findings being elevated to guideline status.

(viii) The Tribunal should review and consider its approach and attitude to expert evidence and seek to assimilate expert evidence rather than distinguish, isolate and reject it as at present.

(ix) The Tribunal should recognise that it may possess experience of country information but it does not possess research skills and cannot, for example, make judgments about what types of evidence may or may not be available.

29.14A In PO (Nigeria) v SSHD [2011] EWCA Civ 132, Carnwath LJ said of the Country Guidance system that "For an up-to-date review of the development of the system and of the modern practice it is unnecessary to do more than refer to" chapter 7 of Robert Thomas's Administrative Justice and Asylum Appeals (Hart, 2011). Thomas analyses the advantages and disadvantages of the Country Guidance system and points out that:

…the unusually high error costs of ordinary asylum adjudications are raised higher still in the country guidance context because the guidance is designed to influence other appeals. While accurate country guidance can promote consistently accurate decisions, inaccurate guidance can promote consistently inaccurate decisions. While the system's unifying and prospective guidance function is desirable, it is essential that the guidance issued be of high quality (p. 201).

29.14B He refers to the "opacity of the criteria" for selection of Country Guidance cases and observes that a "more formal statement as to the Tribunal's policy concerning the selection and management of country guidance would be welcome" (p. 223). Earlier, he describes the process of designating a decision as 'CG' as follows:

The reporting committee's practice is only to designate an appeal as 'CG' if it provides a comprehensive overview of the country situation. A determination will not be reported as country guidance if, although dealing with a fair amount of country information, it does not seem to have considered all the country material that it could have. The criteria for being designated as country guidance is that it not just adequately determine the particular appeal, but also provide a balanced, impartial, and authoritative assessment of available country information drawing out guidance relevant in subsequent appeals. (p. 205).

29.14C The Presidential Guidance Note No 2 of 2011: Reporting decisions of the Upper Tribunal Immigration and Asylum Chamber (which is no longer published on the Tribunal's website but remains available online) states that (paragraph 11):

Special arrangements are made for the reporting of country guidance cases. Before a case is promulgated and designated as a Country Guidance case it is considered by the relevant country convener and the Reporting Committee and advice may be tendered to the determining judges.

In MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC), one of the appellants challenged the practice set out in paragraph 11 of the Guidance Note as giving rise to procedural unfairness. This challenge was rejected by the Upper Tribunal on the grounds that there was in its view nothing improper about judicial colleagues being consulted about a decision, provided always that the members of the panel which heard the appeal ensured that the ultimate decision was theirs alone. It emphasised that none of the parties had any role to play in this process, and that the Tribunal would not receive or consider any additional evidence (at least not without affording the parties an opportunity to make submissions on it). In relation to the nature of the "advice" being tendered, it observed that:

The word "advice" must be considered both in the discrete context in which it appears and the broader context formed by the principles and practices to which we have referred above. It is to be distinguished from, for example, advice tendered by a professional adviser, legal or otherwise. Furthermore, it does not contemplate either interested representations or adversarial argument. Nor does it accommodate the reception of any evidence not available to the parties or comments thereon. Metaphorically, the impugned practice neither disrupts the level playing field nor moves the goal posts.

29.14D The Upper Tribunal now publishes a regularly updated list of pending Country Guidelines cases, available on the Upper Tribunal judiciary website here. The introduction to this document states that:

This document gives details of all pending country guidance cases before the Upper Tribunal, Immigration and Asylum Chamber.

It is designed to provide relevant details of intended country guidance cases coming up in the Upper Tribunal, identifying the countries concerned, the relevant country guidance issues (in summary) and what stage the case has reached (e.g. whether it has had a Case Management Review hearing or whether it has been fully heard and the decision reserved). Once a country guidance case has been decided and reported it will be available in the ordinary way on the UT IAC case law database and will no longer appear in this document.

Previously this resource has been for circulation within the judiciary only. It is now considered that relevant information should be made more widely available.

It is intended that this document is updated regularly on instructions from Upper Tribunal judiciary. However, because cases do not always proceed for various reasons and also because there can be short delays in updating, its contents are NOT to be taken as a definitive statement about such matters.

29.15 Different judges co-ordinate Country Guidance in relation to different countries and the approach to Country Guidance varies. For some countries, several cases are designated as Country Guidance at the same time, each addressing different issues, including some relatively old cases. For other countries, the main Country Guidance is contained in a single determination, regularly replaced, which seeks to address most recurrent issues. The introduction to the list of pending Country Guidance cases contains an invitation to representatives to propose country guidance issues:

If you are aware of an issue where new or revised country guidance may be required (particularly if your appeal is already before the Upper Tribunal) please email countryguidance@justice.gov.uk and your email will be passed to the relevant Upper Tribunal judge for consideration.

29.16 The type of guidance given also varies. Some Country Guidance cases provide lists of relevant factors but indicate that the weight to be given to each factor should be assessed by the decision maker in the context of the individual case; others are more prescriptive in relation to groups which are or are not generally at risk. Groups identified as at risk in this way are often referred to as 'risk categories'.

29.16A In TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049, the Tribunal referred to the endorsement of the system of Country Guidance in NA v UK (App no. 25904/07), but noted that:

...it is clear that the court's endorsement of the validity of a system of country guidance such as is applied in the UK was not unconditional. It was given only because the Court was satisfied that the UK AIT had conducted a careful and comprehensive assessment weighing different sources according to their objective merit. The Court also fully recognised that country guidance is not inflexible; it must be applied by reference to new evidence as it emerges; otherwise it would fall foul of the principle of ex nunc assessment of risk. Our country guidance system can only expect to have authority domestically and command respect abroad, therefore, if it maintains these standards. (para 6)

29.16B The Tribunal has adopted a practice of providing a 'headnote' in all its reported cases which summarises the guidance on the issue for which the decision is reported. In Country Guidance cases, the headnote will summarise the Country Guidance. In PO (Nigeria) v SSHD [2011] EWCA Civ 132, the Court of Appeal considered that the headnote inaccurately summarised the guidance contained within the body of the determination and warned Tribunal judges against over-reliance on the headnote in preference to the actual guidance (paras 36-37, per Maurice Kay LJ). Carnwath LJ, drawing on his experience as Senior President of Tribunals, made a number of comments on the Tribunal's practice and procedure, including as to the failure to clearly identify the issues on which Country Guidance was to be given, excessive length of the determination, and the inconsistency of the headnote with the body of the determination. On this point he said that:

55. Finally I should comment briefly on the status of the "headnote", which as the Vice-President has shown is inconsistent with the material parts of the determination. The headnote is not part of the determination as such. This is apparent from the fact that it precedes the formal "determination and reasons". As I understand it, the headnote is normally added by the tribunal's reporting committee when authorising the reporting of the decision, although it may in practice be drafted by one of the judges responsible for the decision. It is intended to provide a convenient shorthand summary of the effect of the decision, and is likely to be used as such in subsequent cases.

56. It is certainly useful to have a headnote of this kind. However, it is important that it should accurately reflect the relevant guidance as contained in the determination itself. The present case suggests that there may be a need to review the current practice. It may be that the problem would be reduced if, as I have already indicated, more care were taken to identify the "issue" to which the country guidance is intended to relate. It should then be possible for the panel judges themselves to conclude the determination with their own concise summary of the guidance on that issue. That might then provide the text which could be reproduced in the headnote, without the risk of the sense or emphasis being distorted in an attempted summary by the reporting committee.

29.16C The Tribunal has referred to and sought to apply this guidance in Country Guidance determinations since PO (Nigeria) [2011] EWCA Civ 132 (see e.g. EM (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC), para 3) but you should draw the Tribunal's attention to these observations in any case in which the headnote may be said to be inconsistent with the guidance given in the body of the determination, and emphasise the importance at looking at the content of the guidance rather than just referring to the headnote.

Dealing with Country Guidance

29.17 It is essential to check the current list of Country Guidance determinations on your client's country of origin (and proposed country of return if that is different). It is now possible to limit your search on the Upper Tribunal's decisions database to cases reported as Country Guidance on a specific country. Simply choose the country from the drop down list and select the "used as country guidance" box.

29.18 An appellant's case will usually be one or more of the following.

a. The existing Country Guidance indicates she is at risk.

b. Developments in country conditions since the Country Guidance mean she is now at real risk, even if she was not at risk when the Country Guidance was given.

c. She has better evidence about existing conditions than was before the Tribunal that gave the Country Guidance so that the Tribunal should revisit that guidance.

d. The assessment of the evidence in the Country Guidance determination was flawed.

29.19 The first step is to consider whether you can argue that your case is consistent with the existing Country Guidance. If the Country Guidance identifies 'risk categories', you will consider whether you can bring your client within one of the risk categories. Conversely, if your client might arguably fall within a category found not generally to be at risk, you will need to distinguish your client from that category. If the Country Guidance indicates a list of relevant factors to consider rather than indicating categories which will/ will not generally be at risk, the aim will be to show that as many as possible of the factors indicating risk apply to your client.

29.20 Expert evidence may well be important in establishing that she falls within recognised risk categories and/or in establishing the presence of factors identified in the Country Guidance as relevant to the assessment of risk.

29.21 If the issues arising in your case are not directly addressed by the existing Country Guidance, you may still be able to point to evidence and arguments which were accepted in the Country Guidance which suggest that it would be consistent with the Country Guidance to allow the appeal.

29.22 If the Country Guidance prevents (or arguably prevents) you succeeding, you will in the first instance consider options (b) or (c). In EM (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC) (which has been set aside by the Court of Appeal but not on grounds that affect this point) the Tribunal emphasised that:

...in individual appeals where there is fresh material not available at the time of the country guidance the Immigration Judge will be entitled to depart from the country guidance in the particular case on the basis that the guidance was either not directed to the particular issue in the subsequent appeals, or the factual assessment in the guidance case has now to be updated in the light of relevant cogent fresh information (para 72).

29.22A In assessing whether the Country Guidance is out of date on material issues (option (b)), it is worth paying particular attention to sources whose previous reports were referred to in the Country Guidance - both organisations and experts. If an expert whose evidence was accepted by the Tribunal considers that there have been material developments, that should be persuasive; the same will apply if an NGO whose report was relied upon has produced an updated report indicating a deterioration.

29.23 It is less common than it used to be for Country Guidance to be given in badly argued cases based on little evidence. However, the challenging nature of the evidence gathering process means that it is not unusual for important evidence to emerge which was not before the panel that gave the Country Guidance. As indicated above, the Tribunal should be prepared to consider new evidence not only that conditions have changed but that the existing conditions are not as the panel took them to be on the evidence available to it. A new expert may be able to show how inferences drawn by the panel are wrong. However, be careful that your expert report does not appear to take issue with the Country Guidance as a matter of submission rather than using his expertise to better explain the country conditions and identify points that were missed when the panel gave its guidance.

29.24 In principle, a single judge in the First-tier Tribunal is just as entitled as a panel or the Upper Tribunal to depart from Country Guidance if the evidence justifies it. The Tribunal has however warned against departing from Country Guidance too readily on the basis of limited evidence (MK (AB & DM confirmed) DRC CG [2006] UKAIT 00001). It is therefore important to explain carefully how the new evidence justifies a different assessment. It is nevertheless for the present judge(s) to assess the present position in light of the new evidence. The judge should not approach the case by simply trying to place himself in the shoes of the panel that gave the Country Guidance and guessing what decision they would have reached on the new evidence. It may be worth referring to the statement of Lord Hope in Januzi v SSHD [2006] UKHL 5 that 'in the end of the day each case, whether or not such [country] guidance is available, must depend on an objective and fair assessment of its own facts'. The Tribunal said in KA (draft-related risk categories updated) Eritrea CG [2005] UKAIT 00165 that:

....we must have regard to any evidence placed before us concerning relevant changes or developments which have taken place in country conditions in Eritrea since the Country Guideline case... It is only by having regard to such evidence that we can decide whether the appeal before us "depends upon the same or similar evidence" (see April 2005 AIT Practice Directions para 18.2). Only if we were to decide that the country guidance issues in this case do depend upon the same or similar evidence, would we then be required by para 18.2 to continue to treat [the Country Guidance] as authoritative in any subsequent appeal so far as it relates to the country guidance issues in question. (para 7)

29.25 Depending on the nature of the issue, consider giving advance notice, at the CMRH if one is listed, that you will be asking the Tribunal to depart from the existing guidance and invite the Tribunal to consider designating your case for potential Country Guidance, particularly if it is being reheard in the Upper Tribunal following an appeal. (The Tribunal has encouraged representatives via the Tribunal Stakeholders Group to propose pending cases which may be appropriate to be designated as potential Country Guidance cases, and the list of pending Country Guidance cases now includes a designated email address for this purpose: see para 29.15.) This will give the Tribunal the opportunity to list the hearing before a panel capable of giving new guidance and may result in more serious consideration of your challenge to the existing Country Guidance. Country Guidance is now ordinarily given by the Upper Tribunal but there is nothing in principle to stop the First-tier Tribunal hearing a Country Guidance case and the Practice Statements continue to indicate that a decision will be reportable if it is made following a hearing before an Upper Tribunal judge sitting as a First-tier Tribunal judge (para 11.3).

29.26 The Tribunal now ordinarily notifies the parties when it is considering using a particular appeal to give Country Guidance on particular issues. If that occurs, the parties are expected to assist the Tribunal by providing more extensive country evidence than usual. The LAA recognises the importance of the Country Guidance system and is normally prepared to fund such evidential preparation at a substantially higher level than for an ordinary appeal.

29.27 The Tribunal's propensity to give Country Guidance in cases in which the guidance is obiter creates particular problems. The reason that obiter dicta are not traditionally regarded as binding is that they cannot be assumed to have been the subject of full argument: parties cannot be expected to devote the same effort to litigating issues that are not material to the determination of their own case, nor to have the same interest in appealing flawed guidance.

29.28 Country Guidance can be challenged on points of law in the Court of Appeal even where the party does not dispute the result of the individual case, an avenue established by the Home Office's appeal in the case linked with the former Zimbabwe Country Guidance case of AA1: SSHD v AA & LK [2006] EWCA Civ 401 [2007] 2 All ER 160. However, whereas the Home Office can take a strategic view as it will be a party to future appeals in which the Country Guidance will be applied, that is obviously unlikely to apply to appellants. Arguably flawed guidance therefore may not be appealed in the case in which it was given.

29.29 In the absence of fresh evidence that was not considered when the Country Guidance was given, the Tribunal's stance is that it will not entertain argument that its existing Country Guidance is flawed (whether or not it is argued that the flaw amounts to an error of law): MY (Country Guidance cases - no fresh evidence) Eritrea [2005] UKAIT 00158. MY was approved by the Court of Appeal in Ariaya v SSHD [2006] EWCA Civ 48 which also appeared to suggest that it was inappropriate to challenge an existing Country Guidance determination which had not itself been appealed to the Court of Appeal in a subsequent appeal to the Court of Appeal in another case. However, any doubts about this possibility were laid to rest by the Court of Appeal in KS and NL (Burma) v SSHD [2013] EWCA Civ 67, [2013] INLR 775, in which the appellants directly challenged the applicable Country Guidance as legally flawed. The appellant in the Country Guidance case, TL (Sur Place activities-risk) Burma CG [2009] UKAIT 00017, had been successful in her individual appeal so had understandably not sought to challenge the guidance that had been given. Accepting that it was open to an individual other than the appellant to challenge Country Guidance as legally flawed, Maurice Kay LJ observed that:

19. ... It is plain that, if it were not for [the Country Guidance] system, the overburdened tribunal system would become overwhelmed. The system is not productive of injustice, provided that the country guidance, even if obiter in a purist sense, is not itself legally flawed. Sometimes a country guidance decision is directly and successfully appealed. HM (Iraq) is a recent example. There is a risk that a legally flawed decision may not be appealed but that does not mean that it is set in stone. It may be challenged by a subsequent appellant in respect of whom it is not res judicata. The present appeals exemplify such challenges.

20 The important point is that when there is a challenge on legal grounds to country guidance, either directly or, as here, indirectly, the guidance is subjected to rigorous scrutiny. The court will need to satisfy itself that the particular part of the guidance that is being called into question was the subject of evidence that was properly evaluated, after full argument, by the UT, whether or not it applied strictly to the appellant or appellants before it.

29.30 If you argue that the existing Country Guidance is flawed in law, you should therefore expressly reserve your position in relation to appeal to the Court of Appeal. If on appeal to the Court of Appeal, you establish that the Country Guidance was flawed in law, then it follows that you will succeed in your own appeal to the extent that the Tribunal relied on the Country Guidance - see OM (AA1 wrong in law) Zimbabwe CG [2006] UKAIT 00077.

29.30A In AA (Iraq) v Secretary of State for the Home Department [2017] EWCA Civ 944 where the parties were in agreement that there was an error of law in the country guidance, the Court of Appeal noted the importance of resolving the error expeditiously:

[28]…Precisely because the judgment gives Country Guidance, such an error (if it be so) may be replicated across many other cases. Delay in addressing such an error may be very costly…

[33]…If there is an error in such a case, it is liable to proliferate rapidly as other courts and tribunals follow the guidance. It is plainly desirable that any error of law by the UT in such a case should be capable of being put right by this court at the earliest opportunity

29.30B The Court of Appeal went on in AA (Iraq) [2017] EWCA Civ 944 to republish the corrected headnote, setting out the correct position in law (this involved the proper status of the Civil Status Identity Document which the Upper Tribunal had found to constitute merely a travel document but which the Court of Appeal found, in agreement with the parties, was a document of far greater importance; being essential in order to access basic services required for subsistence in Iraq).

29.30C In AS (Afghanistan) v SSHD [2019] EWCA Civ 873, the Court of Appeal found that the Tribunal's assessment of the safety of internal relocation to Kabul was made in error. The United Nations Assistance Mission in Afghanistan reported a statistic for death and injury resulting from armed conflict and security incidents in Kabul as 0.1% (representing 1 in 1,000 people). The risk of harm had been erroneously stated by the Tribunal as being 0.01% (representing 1 in 10,000 people). The Court of Appeal remitted that discrete part of the country guidance for a re-hearing based on updated evidence.

Reported, unreported, and unreportable determinations

29.31 'Reported determinations' are determinations which are designated by the Upper Tribunal as such and published on its website. The designation signifies that they are citable before the First-tier or Upper Tribunal without permission for general propositions of fact or law. They include, but are not limited to, all starred and country guidance determinations. Unreported (but reportable) determinations are also published on the Upper Tribunal's website but can only be cited in limited circumstances. Unreportable determinations (and all First-tier Tribunal determinations) are not published. The Practice Statements (which no longer appear on the Tribunal's webpage but which remain available online) state that:

11 Reporting of determinations

11.1 This Practice Statement is to be read in conjunction with Practice Direction 11 (citation of unreported determinations) and Practice Statement – Form of decisions and neutral citation First-tier Tribunal and Upper Tribunal on or after 3 November 2008 (31 October 2008).

11.2 The decision whether to report a determination is that of the Tribunal and it is not perceived to be an issue in which the parties to the appeal have an interest.

11.3 A determination is reportable only if it follows a hearing or other consideration where the jurisdiction of the Tribunal was exercised by the Senior President, the Chamber President or an Upper Tribunal judge who is not a Deputy judge (whether or not sitting alone and, in the case of an Upper Tribunal judge, whether sitting as such or as a First-tier judge).

11.4 A determination which is reportable but not in fact reported will be anonymised (where appropriate), treated as an unreported determination for the purposes of the Tribunal's website and entered as such on that website.

11.5 The Tribunal's website is the only official source of the determinations of the Tribunal.

29.31A Paragraph 8 of the Practice Direction states that:

8 Citation of unreported determinations

8.1 A decision or judgment of any court or Tribunal which has not been reported may not be cited in proceedings before the Tribunal unless:-

(a) the person who is or was the appellant before the Tribunal, or a member of that person's family, was a party to the proceedings in which the decision was issued; or

(b) the Tribunal gives permission.

11.2 An application for permission to cite a decision or judgment which has not been reported must:-

(a) include a full transcript of the decision or judgment;

(b) identify the proposition for which the decision or judgment is to be cited; and

(c) certify that the proposition is not to be found in any reported decision or judgment.

29.32 Presidential Guidance Note No 2 of 2011: Reporting decisions of the Upper Tribunal Immigration and Asylum Chamber (which is no longer published on the Tribunal's website but remains available online) indicates that decisions on which cases to report are made by a Reporting Committee, chaired by an Upper Tribunal Judge, which convenes fortnightly. Representatives may refer reportable decisions to the chair of the Committee for consideration (which should be sent to fieldhousecorrespondence@justice.gov.uk), but the Upper Tribunal will not enter into correspondence about which decisions are to be reported (para 8). Appended to the Guidance Note are the criteria which the Reporting Committee applies:

1. In deciding whether a decision should be reported the Reporting Committee shall apply the criteria set out below.

2. A decision will be reported where

(a) the Reporting Committee considers that it has general significance and utility in the development of the UT's law, is sufficiently well reasoned and is consistent with binding statutory provisions or precedent of the senior courts; or

(b) it is a decision which follows a substantive hearing of an application for judicial review

3. Decisions selected for reporting by virtue of paragraph 2(a) will have at least one, and normally than one, of the following features:-

a. the Tribunal has considered previous decisions on the issue or issues and has had sufficient argument on them;

b. the decision considers a novel point of law, construction, procedure or practice, or develops previous decisions in the same area;

c. the decision gives guidance likely to be of general assistance to judges, the parties or practitioners;

d. the decision contains an assessment of facts of a kind that others to be aware of, because it is likely to be of assistance in other cases

e. there is some other compelling reason why the decision ought to be reported.

4. A decision selected for reporting by virtue of paragraph 2(a) will be given key words and italic wording, summarizing the matters in respect of which it is being reported.

5. Where the committee considers that a decision falling within paragraph 2(b) also meets the criteria set out in paragraph 2(a) (read with paragraph 3), the committee will cause the decision to be given key words and italic wording, as described in paragraph 4.

29.36 ILPA understands that there is no procedure comparable to that previously adopted by the Social Security Commissioners whereby decisions which it is proposed to report were circulated amongst the Commissioners to determine whether 'the decision commands the broad assent of the majority of the Commissioners'. While it is obvious why cases are not reported if they reach no conclusion on issues of any interest beyond the parties to the appeal, ILPA has expressed concern that many determinations of wider interest have not been reported for no obvious reason. Lack of transparency in the decision making of the Reporting Committee has contributed to a perception that reported determinations are not fully representative of the Tribunal's caselaw. ILPA has argued for publication of the minutes of the Committee or other record of the reasons for its decisions.

29.37 In KK (Unreported decisions - Practice Directions) Sudan [2006] UKAIT 00008 the Tribunal emphasised that unreported determinations were not to be cited except in accordance with the Practice Directions. The Tribunal explained that it would be wrong to permit citation of an unreported determination in that case because the issue was a factual one about country conditions which was covered by reported determinations, which had not been cited, and the evidence about country conditions in the unreported determination derived entirely from the appellant in that case.

29.37A In AD (reporting criteria – unreported cases) Somalia [2011] UKUT 189 (IAC), the Tribunal was asked to consider an unreported decision on the issue of the safety of the route from Mogadishu airport which conflicted with a reported decision on the same issue, not itself designated as CG, and given by the same Upper Tribunal Judge as the unreported decision. The Tribunal accepted that it should consider both determinations. Having set out the reporting criteria referred to above, it said that:

78. Senior Immigration Judges are aware of these criteria and can be taken to weigh them carefully when deciding whether or not to submit for reporting and, in turn, the decision by the Tribunal's reporting committee on whether to report a case will be based on the same criteria. Given the process of preparing decisions for reporting, it is likely to be rare that an unreported decision will contain sufficient material within it to offer significant assistance as guidance to decision-makers, practitioners or judges in other cases.

79. Country Guidance cases are, of course, governed by Practice Direction 11. In relation to cases that are not reported as country guidance, however, the principle that like cases should be decided alike should also apply, but it must be borne in mind that fact-finders are often not faced with wholly or even essentially similar material. This seems particularly likely in a jurisdiction which is faced with great difficulty in the collection, and analysis, of often scanty and inconsistent background material from a variety of sources of varying weight: I have a pretty fair idea of what is happening now along Oxford Street and, if I did not, a surveillance camera would soon provide the detail; I have much less of an idea, in spite of COI, of what is happening along the principal street in Mogadishu.

80. In deciding this case, however, it is unnecessary for me to rely on the fact of there being a difference between reported and unreported decisions. For the purposes of this appeal, I am prepared to proceed on the basis urged by Mr Toal that I take into account both decisions but it remains in the final analysis a matter for me in the context of all the material that I have attempted to summarise above to decide whether and how much they assist. My approach is to assess the overall merits of the decisions which I have agreed should be considered by me.

29.38 The judge decided that he preferred the analysis in the reported case. It also rejected a submission that the report of one case but not the other created a 'real appearance of bias' in the Tribunal and the reporting committee, observing that there was nothing to suggest that the unreported case had been put forward for reporting, and that the reported case was considered by a panel which include a senior judge, so that it was unsurprising that it had been put forward for reporting.

29.39 Unreported determinations of the Upper Tribunal since 1 June 2013 are now published on the Upper Tribunal's decisions database in searchable form. There is unfortunately no searchable database of earlier unreported decisions but they may be requested from the Upper Tribunal by sending an e-mail to utiacdecisions@hmcts.gsi.gov.uk.

29.40 Determinations involving the appellant or family members may be cited without permission (para 8.1 of the Practice Direction). There is no definition of 'family member' so you can argue that it encompasses any relative's appeal. You may wish to cite other determinations for findings of fact relevant to the credibility of your client or a witness (see the discussion in chapter 15). In light of the Court of Appeal's decision in AA (Somalia) and AH (Iran) v SSHD [2007] EWCA Civ 1040, you ought to be permitted to cite such determinations for those individual findings of fact. Given the individual nature of the findings, the requirement to conduct an analysis of the Tribunal's caselaw should not be an issue.

29.40A In MP and NT (Sri Lanka) v SSHD [2014] EWCA Civ 829, the Court of Appeal held that the Upper Tribunal had been wrong in the Country Guidance decision of GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) to exclude a collection of unreported First-tier and Upper Tribunal determinations relied on by the appellants as showing a pattern of detention and torture of Tamil returnees to Sri Lanka. Maurice Kay LJ held that, "where there is a pattern in recent tribunal determinations it is capable of providing material assistance (to use the words of paragraph 11.3) to the UT when it is considering fresh country guidance."

29.41 If you wish to cite the determination for a more general proposition, para 11.2 requires you to identify the proposition and certify that the proposition has not been superseded by any judgment of a higher court and is not to be found in any reported determination. Higher court authorities and reported Tribunal determinations can be readily searched online.

29.42 A judge might well seek guidance as to the criteria by which he should judge whether to grant permission to cite an unreported determination. Previous versions of the Practice Direction indicated that permission should not be granted if the same proposition can be found in a reported determination or in higher court caselaw. Whilst this no longer appears in the Practice Direction, a judge would be unlikely to grant permission in these circumstances, unless, for example, there were conflicting authorities where one was reported and one or more were unreported. Conversely, one might expect a judge to grant permission to cite a reportable but unreported determination for a reasoned conclusion on a proposition which could not be found in a reported determination or higher court caselaw. Indeed, para 3 of the accompanying notes to the original IAT Practice Direction (which were quoted in KK [2006] UKAIT 00008) indicated that the intention was to prevent citation of authorities that were particular to their own facts. Presidential Guidance Note No 2 of 2011: Reporting decisions of the Upper Tribunal Immigration and Asylum Chamber (which is no longer published on the Tribunal's website but remains available online) states only that "unreported decisions of the Chamber may not be cited as authority without permission of the judge that will only be granted sparingly where there is good reason to do so" (para 4).

29.43 […]

29.43A Most arguments adopted in a determination could be stated without reference to the determination. The rationale for citing any determination must be that the acceptance of a proposition by a panel of the Tribunal is capable of persuading another panel or judge to adopt the same view in another case, particularly where the proposition was accepted by the Upper Tribunal, and you seek to rely on that decision before the First-tier Tribunal.

29.44 If the Tribunal refuses permission to cite a relevant unreported determination which supports your submissions, and your submissions are subsequently rejected, this may constitute a ground of appeal. This will be particularly so if the judge prefers the competing proposition because it was adopted by the reported authority. Presidential Guidance Note No 2 of 2011: Reporting decisions of the Upper Tribunal Immigration and Asylum Chamber (which is no longer published on the Tribunal's website but remains available online) indicates that "where there is reasonable doubt about whether a decision of the AIT or UTIAC should continue to be followed permission to appeal to the Chamber may well be granted in appropriate cases" (para 10).

29.44A Unlike starred and Country Guidance determinations, the Practice Direction does not provide for determinations that are merely reported to be treated as authoritative on any matter (see para 29.2 above for the power to do so). Presidential Guidance Note No 2 of 2011: Reporting decisions of the Upper Tribunal Immigration and Asylum Chamber (which is no longer published on the Tribunal's website but remains available online) indicates that:

In the absence of a starred case the common law doctrine of judicial precedent shall not apply and decisions of the AIT and one constitution of the Chamber do not as a matter of law bind other constitutions. Judges of the First-tier Tribunal Immigration and Asylum Chamber are, however, expected to follow the law set out in reported cases, unless persuaded that the decision failed to take into account an applicable legislative provision or a binding decision of a superior court. (para 10)

29.44B This is consistent with the fact that the Upper Tribunal is a superior court of record, whose decisions are binding on the First-tier Tribunal. However, the First-tier Tribunal is not bound by its own decisions, so a reportable decision of the First-tier Tribunal (i.e. where an Upper Tribunal Judge is sitting as a First-tier Tribunal judge) will only have persuasive value: Hampshire County Council v JP [2009] UKUT 239 (AAC). The persuasive nature of rulings on issues of fact and procedure (as opposed to law) was emphasised by the Supreme Court in SSHD v MN and KY (Somalia) [2014] UKSC 30. It said that "Except so far as statute otherwise provides, statements on such issues by the Upper Tribunal are not binding on the FTTIAC judges, who retain their duty to decide their cases on the evidence before them," and held that in the cases before it, the Tribunal had been wrong to hold that it was "bound" by a reported Upper Tribunal decision as to the reliability of linguistic analysis reports relied on by the Secretary of State. It should have critically evaluated the evidence before it in each case, taking account of the guidance from the Upper Tribunal, but also considering the submissions and criticisms made by the appellants.

29.44C Presidential Guidance Note No 2 of 2011: Reporting decisions of the Upper Tribunal Immigration and Asylum Chamber (which is no longer published on the Tribunal's website but remains available online) indicates that:

13. The criteria for reporting cases include cases where the factual findings may be of some general interest. As a general rule, cases deciding factual issues are selected for reporting only if they meet the criteria for country guidance, but occasionally there may be cases where factual findings are likely to be of importance for other determinations where for one reason or another it has not been possible or appropriate to report the case as an authoritative Country Guidance one. These cases will be found on the recent decisions part of the Chamber web site without the letters CG. Reported decisions that are not Country Guidance cases are of persuasive value only on the facts.

29.44D In SI (reported cases as evidence) Ethiopia [2007] UKAIT 00012 (para 29.12 above), the headnote stated that

...cases which have in the past been reported for what they say about country conditions but were never designated as CG, whilst citable in certain circumstances for the summary of background country evidence they contain, are not precedents. An immigration judge who relies on such cases, not simply for the summary of facts they contain but for their assessment of the facts, will err in law unless that assessment accords with pre-existing country guidance. As the AIT system of reported cases has evolved, it is now likely to be very rare indeed that a case will be reported for what it says about country conditions unless it is reported as a CG-designated case.

29.44E However, in TR (CCOL cases) Pakistan [2011] UKUT 33 (IAC), the Tribunal gave further guidance as to the approach to be taken to factual findings made in a reported case which was intended to act as a test case but was not a Country Guidance case or starred. It said that:

19. Just because findings of fact made by the Tribunal in a reported case are not binding does not mean that immigration judges are free to take account or not to take account of such findings at will. There are two reasons for this.

20. The first is free of controversy. It is that the reported case may contain a record of relevant evidence. The fact that it was given in a different case might impact on the weight that should be given it but it is still evidence that has to be considered. A division of the Tribunal will not be assumed to know all the evidence in all of its reported cases in the way that it will be assumed to know the law, but evidence in reported cases (cf the ratio of the decision) is admissible as evidence in other cases. Any evidence relevant to an issue the Tribunal has to decide should be taken into account in any cases where it comes to the attention of the Tribunal and the Tribunal must explain in each case what weight it attaches to the evidence in the reported case when making its decision. This will range from "peripheral" to "almost conclusive" depending on a wide range of factors. Accordingly, not to take account of that evidence may well amount to a failure to take into account relevant matters.

21. The second reason relates to the reported case as an evaluation of relevant evidence. In seeking to identify the correct legal principles to be applied in this situation it is instructive to consider the guidance given by the Court of Appeal in respect of a different but closely analogous situation that arises when a second judicial fact-finder is considering findings of fact made by a previous judicial fact-finder involving the same factual matrix.

Having referred to AA (Somalia) v SSHD [2007] EWCA Civ 1040 and its exposition of the importance of consistency in judicial decision making, the Tribunal continued:

22. We derive from this guidance that, subject to being satisfied there is a common factual matrix ... it is incumbent on immigration judges to follow findings of fact made by the Tribunal in a reported case dealing with the same factual matrix unless there is good reason to revisit the earlier decision.

29.45 Previous versions of the Practice Direction governed only the citation of Tribunal determinations before the Tribunal and not the Administrative Court or Court of Appeal. In its current version the Practice Direction prevents the citation of unreported decisions or judgments from any court or tribunal: para 8.1.

Higher court caselaw

29.46 Permission decisions of the Administrative Court and Court of Appeal are not binding on the Tribunal. The Court of Appeal's Practice Direction: Citation of Authorities (2001) 1 WLR 1001 'applies to all courts apart from criminal courts'. It precludes citation of a permission decision unless it clearly indicates that it purports to establish a new principle or to extend the present law. In respect of judgments delivered after the date of the Direction (9 April 2001), that indication must take the form of an express statement to that effect. In respect of judgments delivered before the Practice Direction that indication must be present in or clearly deducible from the language used in the judgment.

29.47 In SSHD v Senkoy [2001] EWCA Civ 328, the Court of Appeal confirmed that judgments given on applications for permission to apply for judicial review (whether by the Administrative Court or the Court of Appeal) 'are not binding and should not normally be cited' (para 25).

29.48 In KK (Unreported decisions - Practice Directions) Sudan [2006] UKAIT 00008, the Tribunal treated the decision as establishing that decisions of the Administrative Court ordering reconsideration could not be cited in the Tribunal. Otherwise, judgments of the Administrative Court and Court of Appeal are of course binding on the First-tier Tribunal, although decisions of the Administrative Court are not necessarily binding on the Upper Tribunal which may regard them as decisions made by judges of co-ordinate jurisdiction: Secretary of State for Justice v RB [2010] UKUT 454 (AAC).

29.48A Decisions of the Upper Tribunal following a substantive hearing of a judicial review are always reported, given a neutral citation number, and are available as reported decisions on the Upper Tribunal's decisions database. Any relevant propositions of law decided in these cases will be of at least persuasive value in the First-tier Tribunal. The Guidance Note indicates that they will be given a headnote and key words summarising the decision where the reporting committee considers that they meet the usual reporting criteria (para 29.32 above).

29.48B Whilst the headnote can be a useful summary of the legal principles contained in a case, it is no substitute for reading the whole judgment and reliance on a legal principle should be by reference to the substantive judgment itself. In the case of any substantive conflict between the head note and the terms of the judgment, the latter is authoritative (see, in the context of country guidance cases para 29.16B).

Researching legal sources

29.49 The EIN is the most comprehensive online database of asylum and immigration law, containing both Tribunal and higher court and European caselaw along with a comprehensive collection of statutory material including subsequent amendments. It also has a resources section providing links to numerous other legal resources.

29.50 The main subscription services providing general sources of higher court caselaw are Westlaw UK (https://legalsolutions.thomsonreuters.co.uk/en/products-services/westlaw-uk.html) and LexisLibrary (www.lexisnexis.com/uk/legal).

29.51 There are two sets of specialist law reports: the Immigration and Nationality Law Reports (INLR) and the Immigration Appeal Reports (Imm AR). The INLRs also include foreign and Strasbourg caselaw. Both sets of reports are available online by subscription.

29.52 The most comprehensive free general database of UK caselaw is BAILII, the British and Irish Legal Information Institute. As discussed above, the Tribunal publishes reported and unreported Upper Tribunal determinations on its own database at https://tribunalsdecisions.service.gov.uk/utiac (First-tier Tribunal determinations are not published, see para 29.31). It includes reports of all post-permission decisions of the Upper Tribunal in immigration and age assessment judicial reviews.

Foreign caselaw

29.53 The UNHCR's Refworld contains a comprehensive database of national and international case law on refugee law, available at https://www.refworld.org/type/CASELAW.html

29.54 Canada, Australia, and New Zealand all have excellent free databases of caselaw. Links are on Bailii.

Human rights decisions

29.55 Judgments from Strasbourg are reported in the European Human Rights Reports (EHRR). Human rights judgments from the UK and other jurisdictions as well as Strasbourg can be found in an increasing number of other series.

29.56 For searching the Strasbourg caselaw, the European Court of Human Rights' own database, HUDOC, is often the best option. It contains every Strasbourg decision and is easy to use for case name and free text searches (although not as easy for more complex searches). Printouts from HUDOC are admissible in both the Tribunal and the higher courts.

European Union cases

29.56A You may also need to consider the jurisprudence of the Court of Justice of the European Union ('CJEU'): see the Introduction to this edition for the circumstances in which such case law remains binding in the interpretation of 'retained EU law' after the UK's departure from the EU. The CJEU's decisions are reported in the Common Market Law Reports (CMLRs) and the European Case Reports (ECR), and for more significant cases also in the domestic Law Reports, and transcripts are available from the Court's website (curia.europa.eu) which can be searched by case number, name or date. Older cases may only be available on Eur-Lex (eur-lex.europa.eu), where you can also search for cases considering a particular provision of EU legislation, such as the relevant article of a Directive or Regulation.

Search techniques

29.57 As with searching for country information, the aim when searching caselaw databases is to find the word or phrase which is most likely to appear in decisions which interest you, and least likely to appear in those that do not interest you. If there is a leading authority on the point, searching by the name of that authority will often be most effective.

Textbooks

29.58 The practitioners' UK immigration textbooks are Macdonald's Immigration Law and Practice by Stephanie Harrison QC, Ronan Toal, Sadat Sayeed and David Neale Macdonald and Webber (LexisNexis, 10th edn. 2021) and Jackson's Immigration Law & Practice (Bloomsbury; a substantially revised 5th edn due 2023). Macdonald's is available electronically via the LexisNexis online subscription service, and in an e-book. Both cover refugee and human rights law. The main student textbook is Textbook on Immigration and Asylum Law by Gina Clayton & Georgina Firth (OUP, 9th edn 2021) with related online resources, including chapter updates , and other resources such as 'End-of-chapter question guidance'.

29.59 There is a plethora of general textbooks on human rights law, including Human Rights Law and Practice (Lester & Pannick).

29.60 The only UK practitioners' text on refugee law is Asylum Law and Practice by Symes and Jorro (2nd ed, Bloomsbury Professional, 2010; forthcoming 3rd edn). Whilst formerly an indispensable resource for asylum appeals, it is – pending the publication of the 3rd edition - now significantly out of date. The Immigration Appeals and Remedies Handbook by Symes and Jorro (Bloomsbury Professional, 2nd edn 2021) and The Law and Practice of Expulsion and Exclusion from the United Kingdom, edited by Fripp, Moffatt and Wilford (Hart, 2015) are also useful resources. Refugees and Gender: Law and Process by Heaven Crawley (Jordans, 2001) is a comprehensive (though outdated) guide to women's refugee claims. The Immigration Appellate Authority (the predecessor to the AIT) published the 'Gender Guidelines' which remains a valuable resource and is available on the EIN. For protection claims involving on trafficking or modern slavery, Human Trafficking and Modern Slavery: Law and Practice (Bloomsbury; 2nd edn, 2020) is a very useful resource.

29.61 The main texts on international refugee law are The Law of Refugee Status by Hathaway and Foster (2nd edition, Cambridge University Press, July 2014), Hathaway's The Rights of Refugees under International Law (Cambridge University Press, 2nd edn 2021), The Refugee in International Law, by Goodwin-Gill and MacAdam (Oxford University Press, 4th edn 2021), and The Oxford Handbook of International Refugee Law edited by Costello, Foster and McAdam (Oxford University Press, 2021). These texts have been extensively cited by higher courts in the UK. Hathaway has been described in the House of Lords as 'one of the leading figures in the academic field' (Adan [1998] UKHL 15, per Lord Lloyd). Any support you can find in one of these texts for your arguments will be important.

29.62 The multi-volume Butterworths Immigration Law Service is a looseleaf publication which gathers statutory material, caselaw, and policy, together with commentary. It is also available electronically via the LexisNexis online subscription service. The Immigration Law Handbook by Allen, Gasparro, Swaney, Phelan & Gillespie (Oxford University Press, 10th edition, 2018; forthcoming 11th edn 2023) collects the main statutory and treaty material.

Policy

29.63 Keep abreast of Home Office statements of policy. These may relate to a specific country, to categories of claimants who should be granted leave, or to the procedures to which the Home Office has committed itself. The Tribunal has considered the status of UKVI policy in Miah (section 117B NIAA 2002 – children) [2016] UKUT 00131 (IAC), finding them to be 'relevant considerations, framed in flexible terms, to be taken into account by decision makers':

16. Decision makers and Judges should take care to apply the correct prism when considering this IDI. Its legal status must be appreciated. It is not a statutory measure. It is, rather, a policy document. Being of this character, it attracts the application of a series of well established principles, four in particular. First, it is an obligatory material consideration in decision making processes. Second, it is not writ in stone. Rather, its contents are to be viewed as a series of flexible and inexhaustive requirements. See Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12, at [21], [26] and [35], per Lord Dyson JSC. We would further emphasise that the IDI is not, and does not claim to be, an exhaustive code. To approach it as a collection of rigid rules and/or a comprehensive edict would be erroneous in law. Finally, it is trite law that IDI's and kindred instruments do not have the status of law and, thus, are subservient to primary legislation, secondary legislation and the Immigration Rules.

29.63A The Home Office may well not comply with its duty to bring relevant policies to the attention of the Tribunal: indeed so incompetent has been its policy dissemination on occasion that the HOPO may not even be aware of the relevant policy. The Court of Appeal has reiterated the duty on the Home Office in UB (Sri Lanka) v Secretary of State for the Home Department [2017] EWCA Civ 85, noting that the Secretary of State has 'the clearest obligation' to serve relevant policy documents and ensure that they are before the Tribunal. Irwin LJ (with whom David Richards LJ and the President of the Family Division agreed) summarised the relevant caselaw:

[16] In my view there was the clearest obligation on the Secretary of State to serve relevant material and ensure it was before the Tribunals at both levels. In AA (Afghanistan) v SSHD [2007] EWCA Civ 12, Keene LJ made the point clear beyond doubt:

"27. [It was submitted by the appellant that] the attention of the adjudicator should have been drawn by the Secretary of State's representative to the policy on interviewing unaccompanied minors, so as to avoid him being misled: see R v. Special Adjudicator, ex parte Kerrouche [1997] Imm AR 610.

28. As a matter of law, that is right. The Secretary of State should draw relevant parts of his policy to the adjudicator'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."

[17] The point was reinforced by Lord Wilson in Mandalia v SSHD [2015] 1 WLR 4546 [2015] UKSC 59. Lord Wilson referred to the judgment of Keene LJ in AA (Afghanistan) and re-emphasised the obligation:

"irrespective of whether the specialist judge might reasonably be expected himself to have been aware of it, the Home Office presenting officer clearly failed to discharge his duty to draw it to the tribunal's attention as policy of the agency which was at least arguably relevant to Mr Mandalia's appeal." (paragraph 19)

29.64 In AA (Afghanistan) v SSHD [2007] EWCA Civ 12, Keene LJ observed that 'This court has held more than once that for the Secretary of State to fail to take account of or give effect to his own published policy renders his decision not "in accordance with the law"'. Whilst the "not in accordance with the law" ground of appeal no longer exists, in SF and others (Guidance – post-2014 Act) Albania [2017] UKUT 120 (IAC) 10 the Tribunal noted that even in the absence of a such a ground of appeal, the Tribunal ought to take the Home Office's guidance into account if it points clearly to a particular outcome, in its proper context. Home Office policy will also be relevant in establishing whether a decision which interferes with family or private life is proportionate to the needs of immigration control.

29.65 In BH (policies/information: SoS's duties) Iraq [2020] UKUT 00189 (IAC) the Tribunal held that whether Home Office country information contains policy will be a matter of fact, contrasting the CPIN in question with the situation in UB (Sri Lanka) where:

…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. (See 9.30D-9.30F)

29.65 The APIs and asylum decision making guidance are quoted several times in this text and are available on the Home Office's website. Earlier or withdrawn versions of policies may be accessible through the Government web archive. The polices are also published in the 'Resources' section on EIN. Other policy material can be trickier to get hold of. ILPA provides a monthly update to members including many useful Home Office letters and statements, and publishes these and other materials on the Members Only section of its website.