ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Blake J, SIJ Storey and SIJ Allen
 UKUT 331 (IAC)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAURICE KAY
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE RICHARDS
| HM (Iraq) and RM (Iraq)
|- and -
|Secretary of State for the Home Department
Christopher Staker and David Blundell (instructed by The Treasury Solicitor) for the Respondent
Hearing date : 30 November 2011
Crown Copyright ©
Lord Justice Richards :
The proceedings before the tribunal
"[The] appeals to be country guidance cases on the application of Art 15(c) of the Qualification Directive to the appellants and address:
a. Whether there is a risk to the appellants of indiscriminate violence arising from armed conflict within the meaning of Article 15(c) in their home areas in Iraq.
b. If so whether internal relocation within Iraq is available to any of the appellants.
c. If so whether the intended route of return enables them to access such a place in safety."
"When intervening in legal proceedings it is UNHCR's practice to address its submissions to issues of international refugee law and doctrine and, to a more limited extent, to address general country conditions. It does not generally advance submissions on the facts of particular cases. UNHCR understands the importance of not duplicating submissions advanced by the parties and only participates when and to the extent that it considers that its participation could be of value to the Tribunal."
"In view of the serious human rights violations and ongoing security incidents which are continuing predominantly in the five Central Governorates of Baghdad, Diyala, Kirkuk, Ninewa and Salah Din (capital: Samarra), the UNHCR continues to assess that all Iraq asylum-seekers from these five Governorates are in need of international protection. UNHCR considers that asylum-seekers from these Governorates qualify for protection under Article 15(c) of the Qualification Directive if they do not qualify as refugees or qualify for protection under Article 15(a) or (b)."
"36. The present appeals had long been designated as intended to give guidance in circumstances where many hundreds of cases before the Tribunal and the higher courts have been stayed awaiting a judicial assessment of risk in Iraq applying Article 15(c) and related criteria. 'Country guidance' is a well established technique in the AIT and transferred to the Upper Tribunal pursuant to Senior President of Tribunal (SPT) Practice Directions. A duplication of time effort and public funds by appellants, respondents and judges considering appeals at all levels can be avoided by thorough and painstaking review of the background materials, with commentaries and assessment by objective and informed experts where necessary and the material tested through the participation of experienced legal teams on both sides to assist the Tribunal to identify the relevant issues and direct itself appropriately in law.
38. Although any appeal in the field of protection has importance for the individual appellant, country guidance cases have an importance far beyond that. This country guidance case in particular was not founded on any individual characteristic of any of the appellants other than their place of normal residence, nationality, age and gender. Considerable public funds had already been expended in processing the cases from their original rejection in 2007 and 2008 to 2010. Since the cases had been identified as country guidance cases in October 2009, the Home Office had prepared three volumes of country material and the UNHCR had prepared written submissions and two volumes of material. Five days had been set aside for a three person panel of the Upper Tribunal with the President in the chair to hear the case.
39. The circumstances in which a late change of mind was communicated were for the reasons set out above wholly unsatisfactory and in RMJ's case at least did not condescend to an explanation of whether the appellants sought to withdraw the appeal altogether or why instructions were said to have been withdrawn ….
40. We indicated that we were unwilling to accede to the applications to withdraw the appeals at this late stage, and concluded that there was an overriding public interest in proceeding to determine them. We adjourned the matter for a few hours for the parties to consider their positions further, and for RMJ to consider whether it could after all represent their clients in the light of … RM and HM's request.
41. On the afternoon of 8 June, the position regarding AA remained the same. [Counsel] informed us that he still wished to withdraw his appeal; in the event that the appeal was not withdrawn the appellant would not be represented, and did not wish to participate and had no evidence or submissions he wished to advance to us. We had already been informed that this was based on the legal representatives' assessment of prospects of success in the light of the expert's report.
42. As regards HM and RM, we were informed that the appellants did not want the expert report to be adduced in their appeals. No instructions had been give to amplify the matter. The brothers now wished also to withdraw their appeal and had been informed of the consequences of so doing. It appeared that even though the public interest in the appeals continuing and RMJ continuing to act had been brought to the attention of the Legal Services Commission (LSC), further funding for representation was refused applying its established criteria.
43. It was apparent that the appeal of ASA had to be determined as no instructions had been received to withdraw. This would require an examination of the background evidence in respect of Baghdad (the intended place of return) and Baquabah in Diyala (the intended place of residence) as set against the legal criteria identified by the Court of Appeal in QD. Examination of the material specifically relating to Kirkuk (the intended place of residence fro RM and HM) added little by way of further time in hearing submissions and making a determination.
44. We remained of the view that the public interest reasons why these appeals should be determined and the material so carefully brought together judicially assessed were overwhelming. We refused the application to withdraw the appeals and we now give full reasons for doing so."
The reasons for the decision to proceed
"45. We had regard to the overriding objective to deal with appeals justly and fairly under Rule 2 of the Tribunal Procedure (Upper Tribunal) Rules. We concluded that in a country guidance case of this type, justice and fairness was also owed to the many hundreds of appellants whose cases would be materially affected by a thorough review of all the available up to date material and the application of the test in QD.
46. As regards the specific factors in Rule 2(2) we concluded:
a. 'dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and resources of the parties'
The importance was considerable, and the costs already largely incurred in the previous six months. The costs would be entirely wasted if we did not determine the appeals and would fall to be regenerated in future appeals where the parties may not have had the experience or the resources of the RMJ in identifying an appropriate expert.
b. 'avoiding unnecessary formality and seeking flexibility in the proceedings'
We had through paper directions, active case management and short adjournments sought to explore every practical way to advance the overriding objective. We considered whether we should call the expert Dr Herring ourselves, despite the fact that assertion of litigation privilege had prevented us knowing of his conclusions. Although this course was clearly open to us and may be an appropriate course of future action, we decided against it in this case ….
c. 'ensuring so far as practicable that the parties are able to participate fully in the proceedings'
We had done what we could to ensure that the appellants were represented and assisted …. Although we were concerned that RM and HM who initially expressed to us a wish to continue with their appeals would be severely restricted as unrepresented litigants with little or no English, we noted that on further instructions they had expressly indicated that they did [not] want to place any further material before the Upper Tribunal and had sought to withdraw the appeal thus indicating that there was nothing further they wished to draw to our attention. We add here that the brothers stayed to listen to the subsequent appeal, the gist of which was translated to them by the interpreter and confirmed on more than one occasion that they did not wish to add anything or make any submission.
d. 'using any special expertise of the Upper Tribunal effectively'
We consider that the Upper Tribunal has special responsibility and expertise to assist Immigration Judges, primary decision-makers and litigants by engaging in up to date assessments of risks in countries giving rise to commonly occurring situations, where it is possible and reasonably practical to do so.
e. 'avoiding delay so far as compatible with proper consideration of the issues'
The narrative of events in these cases speaks for itself. It would probably have taken another six months to set up another constitution to deal with further appeals raising these issues. Avoiding delay is always an important consideration in immigration cases to both sides for differing reasons. In our judgment it is particularly important in Article 15(c) cases where levels of general violence arising in armed conflict may change rapidly in the course of weeks or months and there is always the considerable likelihood of assessments being out of date."
The tribunal's consideration of the substantive issues
"(ii) We do not find that the degree of indiscriminate violence characterising the current armed conflict taking place in Iraq reaches such a high level that substantial grounds are shown for believing that any civilian returned there would, solely on account of his presence there face a real risk of being subject to that threat ….
(iii) But even if there were certain areas where the violence reached levels sufficient in our judgment to engage Article 15(c) we consider that there is likely to be considerable scope for internal relocation that achieves both safety and reasonableness in all the circumstances ….
(vi) The evidence relating to UK returnees to Iraq in June 2010 does not demonstrate that the returns process will involve serious harm …."
The appellants' case before this court
"No proper contradictor"
"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.
12.4 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."
"Country guidance stands, in accordance with the Practice Directions, unless and until it becomes unreliable. Broadly, this can happen for one of two reasons. Firstly, fresh evidence can emerge that casts new light on circumstances in the country considered. This can be the result, for example, of a change of regime or of a new report from a respected non governmental organisation. In such an event the Practice Directions permit a different conclusion from that required by the existing country guidance. Secondly, country guidance can be overturned because the case was decided wrongly in law …."
"The rules that have been elucidated by a long course of decisions in the Scottish courts may be summarized thus: The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought."
"The absence of a contradictor in an action for declarator will usually matter because it will be an indication that there is no live controversial legal issue which the court could properly spend its time considering and determining. But the Law Hospital case [Law Hospital NHS Trust v Lord Advocate  SC 301] actually raised a legal issue of acute practical importance to members of the medical profession all over Scotland. Unusually, therefore, despite the fact that the defenders were not opposing the substance of the declarators and so there was no proper contradictor, there was still an important public interest to be served by the Court of Session considering the whole position and, in the end, deciding whether to grant the declarator sought …. In these special circumstances it was competent for decree of declarator to be pronounced. Here, by contrast, the case concerns a dispute which was only ever of concern to the parties. Now that the undertaking has been given, no public interest would be served by the Court of Session hearing evidence and determining what is now an academic point …."
"Subsequently, in Vine v National Dock Labour Board  AC 488, 500, Viscount Kilmuir LC found this Scottish approach to be helpful; and indeed there is authority in the English cases that a declaration will not be granted where the question under consideration is not a real question, nor where the person seeking the declaration has no real interest in it, nor where the declaration is sought without proper argument, e.g. in default of defence or on admissions or by consent. In the present case, however, none of these objections exists. Here the declaration sought does indeed raise a real question; it is far from being hypothetical or academic. The plaintiff has a proper interest in the outcome, so that it can properly be said that she is seeking relief in the broad sense described by Bankes LJ [in Guaranty Trust Co of New York v Hannay & Co  2 KB 536, 572]. The matter has been fully argued in court, through the intervention of the Official Solicitor, and indeed with the benefit of assistance from an amicus curiae …."
"3. A court may properly seek the assistance of an Advocate to the Court when there is a danger of an important and difficult point of law being decided without the court hearing relevant argument. In those circumstances the Attorney General may decide to appoint an Advocate to the Court.
4. It is important to bear in mind that an Advocate to the Court represents no-one. His or her function is to give to the court such assistance as he or she is able on the relevant law and its application to the facts of the case. An Advocate to the Court will not normally be instructed to lead evidence, cross-examine witnesses, or investigate the facts …."
Lord Justice Maurice Kay :
The Master of the Rolls :