Court of Appeal takes Tribunal Judges to school: Pay heed to importance of country guidance caselaw
alicemuzira
It is most strange that it should staunchly be maintained before the Court of Appeal that Home Office Presenting Officers are aware of country guidance caselaw, yet a supposedly sufficiently experienced Home office Presenting Officer voluntarily made a concession that was inconsistent with relevant country guidance caselaw with the result that, also placing reliance upon that concession, an Upper Tribunal Judge allowed an appellant’s appeal.
Even stranger still is that it subsequently emerged that neither the Presenting Officer nor those that represented the Appellant had referred to nor relied upon applicable country guidance ceselaw in the Upper Tribunal.
Recognising the difficulty that the concession presented, subsequently, the Secretary of State had no qualms about putting forward argument and applying in the Court of Appeal for a withdrawal of the concession.
the importance of country guidance caselaw in the consideration of asylum/Article 3 appeals
the effect of a concession made by a Home Office Presenting Officer that was inconsistent with the Country Guidance caselaw
The circumstances in which a concession made at a Tribunal hearing can be withdrawn
Effect of non – genuine self-serving blogging activities in the UK upon an appeal
Summary Background:
AM, an Iranian national, following his arrival in the UK in 2006 as an asylum claimant, with the asylum claim having failed, was subsequently granted anEEA Residence Card as a family member of an EEA national. The residence card was granted valid from 2009 to 8 December 2014.
On 5 August 2013 he was found guilty of the rape of a 17-year old girl on 28 September 2012, and sentenced to a term of five years imprisonment, with an order of indefinite registration on the sex offenders register.
Deportation proceedings were instituted by the Secretary of State. In short, a certificate was issued pursuant to Section 72 of the Nationality, Immigration and Asylum Act 2002 on the basis that AM had been convicted of a ‘particularly serious crime and constituted a danger to the community”. The effect of the certification was that upon his appeal being dismissed before the First Tier Tribunal Judge, AM was found to have been excluded from the protection of the Refugee Convention and a grant of humanitarian protection.
AM’s appeal ended up in the Upper Tribunal and by decision promulgated on 25 January 2017, an Upper Tribunal Judge concluded that deporting AM to Iran would place him at risk of ill-treatment in contravention of his rights under Article 3 of the European Convention of Human Rights (‘ECHR’).
The Secretary of State appealed to the Court of Appeal.
The Appellant’s problem:
AM had tweeted verses from the Bible and at one point, he had had 5,287 followers and ‘86,000 or so ‘likes” and there were 850 tweets. He argued that the effect of his tweets was that he would be viewed as Christian.
The problem however was that some of the factual findings of the First Tier Tribunal remained undisturbed, such as the finding that AM’s purported conversion to Christianity was found to have been fabricated in order to establish a claim that he would be at risk upon return to Iran as a Christian convert.
The Secretary of State’s concession before the Upper Tribunal:
The Upper Tribunal Judge had observed as follows in his decision:
“27. It was not disputed on behalf of [the Secretary of State] that if [AM] was thought to be a Christian convert, then he would be at real risk of ill-treatment. That is also the effect of the CIG to which I was referred, and which is consistent with other background evidence. It seems to me that there is a reasonable likelihood that the authorities would view the appellant as a Christian convert, with all that this means in terms of risk (emphasis added)”.
It was this paragraph, with its references to (1) a concession on behalf of the Secretary of State, (2) the effect of the CIG (Country Information Guidance) and (3) the extent of risk to someone viewed as a Christian convert, that lay at the heart of the Secretary of State’s appeal that gave rise to one of the grounds of appeal.
What the Upper Tribunal was argued to have done wrong:
Additionally, the Upper Tribunal Judge was noted to have recorded as follows in his decision upon allowing the appeal on Article 3 grounds:
“28. Furthermore, there is also a reasonable likelihood that the appellant would be viewed as someone involved in anti-Islamic conduct, even if it is accepted by the authorities that his extensive Christian twitter postings were merely opportunistic. As explained in SB [(risk of return – illegal exit) Iran CG [2009] UKAI 0053] at [45], such presents as a significant risk factor.
29. In all the circumstances, I am satisfied that the appellant has established that there is a real risk that on his return he would be questioned about the details of his asylum claim and that that questioning would reveal that he has posted on Twitter. For the reasons explained above, that interrogation would involve a real risk of ill-treatment amounting to a breach of article 3”.
What however the Upper Tribunal was argued to have done wrong was to fail to to consider the most recent applicable Country Guidance cases: FS and others (Iran – Christian converts) Iran CG[2004] UKIAT 00303 and SZ and JM (Christians – FS Confirmed) Iran CG [2008] UKIAT 00082.
It was submitted on behalf of the Secretary of State that the Upper Tribunal was required by Practice Direction 12 of the Immigration and Asylum Chamber to have regard to the Country Guidance determinations:
“12.2 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 Tribunal, the AIT or the IAT that determine 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.
12.3 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 conversant with the current ‘CG’ determinations relating to that country.
12.4 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 grounds for appeal on a point of law”.
It was put forward on behalf of the Secretary of State that the Upper Tribunal Judge erred in law in failing to refer to the relevant country guidance cases, FSand others (2004) and SZ and JM (2008); and that he should have done so notwithstanding that they were not referred to or relied upon by the parties.
What did the relevant country guidance caselaw state?
The case of FSand others (2004) provided clear guidance as to the correct approach to be adopted in relation to the position of Christian converts in Iran. At 187, the Upper Tribunal set out the position:
“187. For the ordinary convert, who is neither a leader, lay or ordained, nor a Pastor, nor a proselytiser or evangelist, the actual degree of risk of persecution or treatment breaching Article 3 is not sufficient to warrant the protection of either Convention. The reality is that a social and economic life can be maintained; Christianity can be practised, if necessary, cautiously at times, by Church attendance, association with Christians and Bible study. There may well be monitoring of services and identity checks. They would be able to practise, however, as most Iranian converts do. It is realistic to expect that there may sometimes be questioning, disruption, orders not to attend Church, which may require the convert to stay away for a while. But there is no evidence of a real risk of ill-treatment during such questioning or of anything more than a short period of detention at worst. There is evidence of random or sporadic violence by the likes of the Basiji, but at too infrequent a level to constitute a real risk to the ordinary convert. The longer official questioning, detentions, and the greater risk of charges, trumped up or menacingly vague or simply threatened are not a real risk for the ordinary convert.
188.We would, on the present evidence, regard them as not at a real risk of persecution or treatment breaching Article 3. We allow in that assessment for some recent worsening in the current climate.
189.We would regard the more active convert, Pastor, church leader, proselytiser or evangelist as being at a real risk. Their higher profile and role would be more likely to attract the malevolence of the licensed zealot and the serious adverse attention of the theocratic state when it sought, as it will do on some occasions, to repress conversions from Islam which it sees as a menace and an affront to the state and God”.
The subsequent case of SZ and JM (2008) confirmed this position. Part of the headnote reads:
“Conditions for Christians in Iran have not deteriorated sufficiently to necessitate a change in the guidance in FS [and others (2004)] …”
This part of the headnote reflected passages in the decision itself, including:
“9. At paragraph 184 [of FS and others (2004)], the Tribunal accepted that there was no real risk on return for someone who has simply been an asylum seeker. It cautioned against drawing conclusions by reference to the position of those who return merely as failed asylum seekers, when considering what may happen to those returning if the fact of conversion becomes known before or at the point of return. The Tribunal concluded that the evidence did not show that by itself would lead to ill-treatment, but found it could lead to questioning, warnings and the possibility that local police or vigilante groups, family and associates may be told. The Tribunal found that if there was hostility from families that would need to be considered in each case, but generally did not create a risk of persecution, although it acknowledged that it could make life more difficult.
………………..
148.It remains our view that for the ordinary convert (within the meaning which we have slightly modified from FS and others) there is a risk, but not a real risk, of serious harm if returned to Iran”.
What Home Office Country Information Guidance did the Upper Tribunal Judge refer to?
The Upper Judge referred to the Home Office Country Information Guidance, ‘Iran: Christians and Christian Converts’, dated December 2015, which provided relevantly:
“Christians converts
Christians who have converted from Islam are at risk of harm from the state authorities, as they are considered apostates – a criminal offence in Iran. Sharia law does not allow for conversion from Islam to another religion, and it is not possible for an individual person to change their religious affiliation on personal documentation. Christian converts face physical attacks, harassment, surveillance, arrest, detention as well as torture and ill-treatment in detention. The country guidance case of SZ and JM (Christians – FS confirmed) (2008) found that conditions for converts to sacrament-based churches may be such that they could not reasonably be expected to return to Iran. This remains the case”.
The Court of Appeal’s considerations:
It was observed that it was put forward on behalf of the Secretary of State that the Upper Tribunal Judge erred in law in failing to refer to the relevant CG cases: FSand others (2004) and SZ and JM (2008); and that he should have done so notwithstanding that they were not referred to or relied upon by the parties.
The Court of Appeal stated that in general, one would expect the parties to refer to any relevant Country Guidance (CG) cases, although the Court would also expect specialist Tribunal Judges to be aware of the relevant CG cases, or at least where they are to be found. The Practice Direction at §12.4 assumes as much.
In the present case, the Upper Tribunal Judge did not refer to either FSand others (2004) or SZ and JM (2008). He did, however, refer to three other cases dealing with the risks of return to Iran but one of the cases was not a CG decision and it was not clear why he referred to evidence given in that case: ie, that people are asked about their social internet activity and particularly their Facebook password, neither of which were matters that arose in the present case.
The Court of Appeal observed that it was unclear why the Judge thought that evidence given in what was not a CG case was to be given particular weight on the basis that the Secretary of State could not suggest why it could not be relied in the present case. CG cases are exceptions to a general rule that evidence in one case cannot be relied on in another case.
The Upper Tribunal was considered to have placed itself in danger of proceeding impermissibly on the basis of what it perceived to be binding concessions.
The ‘risk of harm’ (see the above Country Information Guidance) or ‘real risk ill-treatment’ (see Upper Tribunal decision) was rightly not treated by the Upper Tribunal as the end of the matter. It was for the Upper Tribunal to assess the extent of the risk as part of the decision. That called for a closely focussed assessment of AM’s particular position.
The Court observed that one difficulty in the Secretary of State’s argument on the appeal was the concession noted at §27 of the Upper Tribunal decision: that if AM were thought to be a Christian convert, he would be at ‘real risk of ill-treatment’. Recognising the difficulty that this concession presented on the appeal, the Secretary of State sought to apply to withdraw it. It was submitted that it would not be in the interests of justice to hold the Secretary of State to the concession.
The Court of Appeal accepted that the Court may, depending on the circumstances, permit a concession that was made in a Tribunal hearing to be withdrawn. Consideration on the point was given to Secretary of State for theHome Department v. Davoodipanah[2004] EWCA Civ 106 , paragraph 22 and AK (Sierra Leone) v. Secretary of State for the Home Department[2016] EWCA Civ 999, paragraphs 38 to 50.
In the Court’s view, the Secretary of State’s application to withdraw the concession made before the Upper Tribunal could not easily rely on principles of justice and fairness, particularly when it was sought to do so in a belated and informal way. It was stated that one would expect those who seek to withdraw a concession to explain both promptly and frankly why the concession was made, why it was mistaken and why it was now just and fair that they be allowed to withdraw it. It observed it to be striking that when the application for permission to appeal to the Upper Tribunal from the Upper Tribunal decision was made, the Secretary of State’s newly instructed and experienced counsel (who was not the counsel instructed before the Court of Appeal) did not seek assert that there was a mistake or seek leave to withdraw the concession. It was however noted that those who represented AM rightly accepted that a concession could be withdrawn if this were in the overall interest of justice.
The Court of Appeal’s conclusions:
Although the Secretary of State was fully entitled to the view that AM’s presence in the country was not conducive to the public good in the light of his conviction for rape, in the light of the possible infraction of his rights under article 3, his removal to Iran called for a close focus on the risks of removal. It was a case requiring a particularly close analysis of the relevant issues.
The implicit risks in his removal were that he would be regarded by the authorities as a Christian convert and as someone who would broadcast his Christian beliefs in Iran. Both of these possibilities had to be seen in the light of the finding that he was not in fact a Christian, and that he had deceitfully adopted the appearance of a Christian in his Twitter posts for the purposes of invoking international protection and avoiding removal to Iran.
The starting point for the assessment of risk were the CG cases of FSand others (2004) and SZ and JM (2008). It is not said that these cases have been superseded and FS and others (2004) was specifically referred to in the December 2015 CIG. In R (SG (Iraq) v. Secretary of State for the Home Department [2013], Stanley Burnton LJ expressed the position thus:
“46. The system of Country Guidance determinations enables appropriate resources, in terms of the representations of the parties to the Country Guidance appeal, expert and factual evidence and the personnel and time of the Tribunal, to be applied to the determination of conditions in, and therefore the risks of return for persons such as the appellants in the Country Guidance appeal to, the country in question. The procedure is aimed at arriving at a reliable (in the sense of accurate) determination.
47.It is for these reasons, as well as the desirability of consistency, that decision makers and tribunal judges are required to take Country Guidance determinations into account, and to follow them unless very strong grounds supported by cogent evidence, are adduced justifying their not doing so”.
FSand others (2004) and SZ and JM (2008) may have not been the most up-to-date source of information, but they were to be regarded as the most reliable analysis of the risks faced by Christian converts in Iran: “For the ordinary convert, who is neither … a proselytiser or evangelist, the actual degree of risk of persecution or treatment breaching article 3 is not sufficient to warrant the protection of either Convention”.
If the observation in [27] of the Upper Tribunal decision was to be understood as an observation that the fact that AM was thought to be a Christian convert rendered him liable to a risk of article 3 ill-treatment, it was unjustified. It was contrary to the Upper Tribunal Country Guidance caselaw in FSand others (2004) and SZ and JM (2008); and if the Home Office Country Information Guidance is to be read as a general observation that all returning Christian converts are at risk of article 3 harm, it overstated the position. It was troubling that the point appeared to have been conceded.
It was considered however, that the concession plainly did not ‘determine the entire appeal’. The Upper Tribunal regarded the crucial issue which bore on the particular risk to AM on his return was not his apparent (but false and deceitful) Christian beliefs; but the expression of such beliefs in his Twitter posts. The Upper Tribunal Judge was entitled to his view of the facts, so far as they went. However, he relied on the decision in AB and others (2015) which was not a case dealing with Twitter posts, and did not consider the questions whether the posts could be deleted and what the effect of deleting them would be. When giving leave to appeal, the single Lord Justice considered that the possibility of deletion was ‘a common-sense consideration’ and that the Upper Tribunal’s omission to consider these questions was one of the factors that satisfied the second appeal test, the other being the failure to have regard to the two CG cases FSand others (2004) and SZ and JM (2008). The Court of Appeal accepted that this point should have been raised on behalf of the Secretary of State, but the matter should plainly have been investigated.
In these circumstances, the Court of Appeal allowed the Secretary of State’s appeal; and remitted the case to the Upper Tribunal for AM’s appeal to be considered in the light of their judgment.
The Court of Appeal also added that directions should be sought as to the admission of any evidence and further specific submissions on the Twitter issue. The Court also stated that, without in any way seeking to discourage properly made concessions being made before tribunals, the Court regarded it as being in the overall interest of justice that the Secretary of State be permitted to clarify the nature and extent of the concession that he wished to make in relation to the return of Christian converts to Iran which, for the reasons the Court had indicated, were unclear.
The judgement is also a good introduction on the consideration of risk issues for those Iranian nationals who have converted to Christianity or believe would be so viewed upon return to Iran.
The Court of Appeal decision additionally serves as a lesson to practitioners to include at all times within Appellant Bundle the existing country guidance caselaw that applies in the circumstances of a case, whether or not it is favourable to an appellant’s case. Not only to include relevant caselaw and Home Office country information notes but to engage with it during the course of an appeal. If the caselaw seems unfavourable to the claim or appears “out dated” then care and skill should be utilised to source current and updated background information to drive home risk issues and/or seek to source country expert evidence.
As for Tribunal Judges, the lesson to them from the Court of Appeal is clear: as reiterated, to, “take Country Guidance determinations into account, and to follow them unless very strong grounds supported by cogent evidence, are adduced justifying their not doing so”.
