OM (AA(1) wrong in law) Zimbabwe CG  UKAIT 00077
Date of hearing: 16 October 2006
Date Determination notified: 03 November 2006
|Secretary of State for the Home Department||RESPONDENT|
Country guidance stands until it is replaced or found to be wrong in law. It will not be appropriate to grant an adjournment on the grounds that a party is seeking to challenge a relevant country guidance case in the higher courts.
Where a country guidance case is replaced because of changed country conditions or because further evidence has emerged, that will not mean that it was an error of law for an immigration judge to have followed it up to that point. Where, however, a country guidance case is found to be legally flawed the reasons for so finding will have existed both before and after its notification. It is a determination inconsistent with other authority that is binding on the Tribunal (see AIT Practice Directions 18.2) In those circumstances, which will be encountered only rarely, any determination of an appeal decided substantially on the basis of that country guidance will be legally flawed also and cannot stand.
AA (Involuntary returns to Zimbabwe) Zimbabwe  UKAIT 00144 CG ("AA(1)") was found by the Court of Appeal in AA & LK  EWCA Civ 401 to be legally flawed in its approach to the assessment of the evidence. Accordingly it must now be seen as never having been correct country guidance.
Although in AA & LK there was no challenge by the respondent to the Article 3 assessment reached in AA(1), that assessment was based on the same body of evidence considered in respect of the asylum grounds of appeal. AA(1)'s assessment of that evidence having been found legally flawed, it was no longer possible to support a finding of an Article 3 violation by reference to that assessment.
"The appellant was not found to be a credible witness.
The Tribunal is to give further consideration to returnability issues in the light of AA and LK  EWCA Civ 401. The grounds of application are arguable."
"The overriding objective of these Rules is to secure the proceedings before the tribunal are handled as fairly, quickly and efficiently as possible; and, where appropriate, that members of the tribunal have responsibility for ensuring this, in the interests of the parties to the proceedings and in the wider public interest."
"The Tribunal must not adjourn a hearing of an appeal on the application of a party, unless satisfied that the appeal cannot otherwise be justly determined."
"Country Guidance cases
141 As the concept of Country Guidance cases was mentioned in the opinions in Januzi, (see esp. paragraph 50 (Lord Hope)), it is necessary to remind ourselves of the legal basis underlying that concept. Until the advent of the Asylum and Immigration Tribunal, a case styled by the Immigration Appeal Tribunal as Country Guidance carried persuasive force but had no statutory authority. Since 4 April 2005, however, the position has changed. On that day, paragraph 22(1) of Schedule 2 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 inserted into section 107 (practice directions) of the Nationality, Immigration and Asylum Act 2002 a new subsection (3), in the following terms:-
"(3) A practice direction may, in particular, require the Tribunal to treat a specified decision of the Tribunal as authoritative in respect of a particular matter."
The President's Practice Direction 18.2, made on 4 April 2005, provides as follows:-
"18.2 A reported determination of the Tribunal or of 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 or the IAT that determined the appeal. As a result, unless it has been 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."
142 There is thus a statutory basis that underpins the CG system and which requires Country Guidance issues to be treated by all divisions of the Tribunal as authoritative. Practice Direction 18.2 ensures that, as Lord Hope makes plain in paragraph 50 of Januzi, each case is dependent on its own facts but, as PD 18.4 emphasises (and as was noted with approval by the Court of Appeal in R and others v Secretary of State for Home Department  EWCA Civ 982), legal error will attend a failure to follow extant, relevant Country Guidance. Given that the AIT is a "single tier" Tribunal, it is particularly important that everyone concerned appreciates the underlying legal framework."
"e) The current atmosphere of hostility to the return of failed asylum seekers does not of itself put at risk those who would otherwise not be at real risk but does serve to reinforce the fact that asylum claims must be considered with care and where there is any uncertainty, any doubts must be resolved in the applicant's favour.
i) There is no general risk for failed asylum seekers of a breach of article 3 as a result of the current hostility towards such returnees."
"The Court of Appeal on 12 April 2006 pronounced its deliberations in the appeal of AA and LK  EWCA Civ 401 to the effect that generally an individual who can voluntarily return safely to his country of nationality is not a refugee, notwithstanding that on a forced return he would be at risk (para.99) but it is necessary to consider whether such an individual would in fact be at risk if he did return voluntarily."
"12. It is respectfully submitted that this leaves the question of the appellant's position under Article 3 of ECHR to be considered because she has quite clearly indicated that she will not voluntarily return to Zimbabwe.
13 The Court of Appeal (for the reasons it set out in para.107) of AA and LK made no findings on this situation. Against that background therefore we submit that if this appellant were to be involuntarily returned to Zimbabwe then she falls into the situation identified in the AIT decision of [AA(1)] (which remains effective for this purpose) whereby her documents would be in the possession of the airline pilot and her details would become known to the Zimbabwean authorities on her arrival at Harare Airport. In this circumstance we submit that the learned judge was bound by the law (despite any findings on the credibility of the appellant generally) as it currently stands and which is set out in the AIT decision of [AA(1)], i.e. he would be at real risk of Article 3 ill-treatment under the 1950 Convention if returned to Zimbabwe involuntarily. Therefore, the learned judge erred in law by inadequately applying country guidance cases."
"At all events, in a case which was said to be finely balanced, the AIT was wrong to say that the body of evidence from a source of separate people went all one way, and that the Secretary of State had not relied on any evidence indicating that individual Zimbabwean returned failed asylum seekers had not been ill treated, even if he did not adduce any evidence of his own. Indeed, when the AIT referred to Mr Walsh's analysis of the fourteen cases notified by the Zimbabwe Association they only mentioned the three cases which could have given rise to a finding of serious mistreatment and said nothing about his evidence to the effect that none of the other eleven cases involved treatment reaching the Article 3 persecution threshold."
The original Tribunal did not make a material error of law and the original determination of the appeal stands.
Signed Date 27 October 2006
Senior Immigration Judge Perkins