(Immigration and Asylum Chamber) Appeal Number: AA/10155/2012
THE IMMIGRATION ACTS
Heard at Glasgow
On 8th August 2013
On 19th November 2013
UPPER TRIBUNAL JUDGE CLIVE LANE
DEPUTY UPPER TRIBUNAL JUDGE FARRELLY
For the Appellant: Mr S.Bryce, Counsel, instructed by Drummond Miller, Solicitors
For the Respondent: Mr Mullen, Home Office Presenting Officer
DETERMINATION AND REASONS
The First –tier Tribunal
47. In relation to whether he can be returned to the DRC I have before me the report from Catherine Ramos. That obviously is considerably more up-to-date than the country guidance case of BK and I am being asked to depart from the country guidance case here. As I understand it I am in a position to depart from the country guidance if there is fresh and compelling evidence to do so. The country guidance case of BK states that on return to the DRC failed asylum seekers do not per se face a real risk of persecution or serious harm or treatment contrary to article 3 of the EC HR. The Court of Appeal decision is dated 2008.
49. I am not persuaded that in this particular case I am in a position to depart from the country guidance case. In the first place, as I stated the report is based on 15 returnees only. On the other side of the coin the United Nations High Commissioner for refugees noted in 2011 “In January 2011 there were 107,900 returnee refugees … in the country of which UNHCR assisted 10,900… In short, Ms Ramos’ study is based on a very small number of returnees. Further, although Ms Ramos claims a special interest in the DRC she is not a country expert conceding that she is a language teacher and interpreter. She claims that her meetings with high-profile cabinet members shows that her report has been taken seriously but the fact of the matter is that no comments have yet been made on that report. Further, the UKBA claim that the report fails to address any mythology re credibility of interviewees and no list of questions and no survey design. In her email Ms Ramos states that she has explained her mythology in 2 sections of the report which span 3 pages. In these sections she claims to identify interviewees and how she addressed credibility. In relation to the survey design she says she is unclear what is meant by that and therein I think lies one of the faults of the report. Ms Ramos is not an expert in this type of research. Qualitative Research design is a highly specialised field. However, most of what she writes has been gleaned through third-party evidence and she dismisses as not relevant the fact that some of the asylum seekers who have been returned have been returned because of credibility issues stating that she has obtained information about these individuals from people in the community and she is prepared to therefore put weight on the statements from the failed asylum seekers on that basis. I think there are severe design and mythological problems with the report, and until these have been addressed or I am persuaded otherwise I am not prepared to depart from previous findings.
The Grounds of Application
Permission to appeal
The adjournment application in respect of the Upper Tribunal hearing.
32. In my view the power to stay immigration cases pending a future appellate decision in other litigation is a power which must be exercise cautiously and only when, in the interests of justice, it is necessary to do so. It may be necessary to grant a stay if the impending appellate decisions are likely to have a critical impact on the current litigation. If courts or tribunals exercise their power to stay cases too freely, the immigration system (which is already overloaded with work) will become even more clogged up.
This view was echoed by Davis LJ:
54. It seems to me that, generally speaking, tribunal's and courts should be very wary in this field in acceding to requests for a stay of proceedings on the ground that a relevant, or allegedly relevant, point of law or practice is due - it is often said “shortly”, although that more often proves to be a statement of aspiration rather than of fact - to be decided in some other case. Sometimes such a course may be necessary and appropriate, depending on the circumstances. But it should not be taken as some kind of norm.
The point argued.
26… A country guidance case retains its status until either overturned by a higher court or replaced by subsequent country guidance. However, as this case shows, country guidance cases are not set in stone … and a judge may depart from existing country guidance in the circumstances described in the Practice Direction and the Chamber Guidance Note. This does not amount to carte blanche for judges to depart from country guidance as it is necessary, in the wording of the practice direction to show why it does not apply to the case in question. In SG (Iraq) [ 2012]EWCA Civ 940, the Court of Appeal made it clear, at paragraph 47, the 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. To do so otherwise would amount to an error of law.
This appeal is dismissed.
Immigration Judge F J Farrelly Sitting as a Deputy Judge of the Upper Tribunal.