Consistency in asylum adjudication: Country guidance and the asylum process in the United Kingdom

International Journal of Refugee Law

Volumn 20, Issue 4, 2008, Pages 489-532

  Thomas, Robert ^a  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ASYLUM SEEKER; DECISION MAKING; GUIDELINE; IMMIGRATION; LEGAL RIGHTS; SOCIAL STATUS;

EURASIA; EUROPE; UNITED KINGDOM; WESTERN EUROPE;

EID: 57349152443     PISSN: 09538186     EISSN: 14643715     Source Type: Journal    
DOI: 10.1093/ijrl/een034     Document Type: Article

References (190)

1. See, R. Prasad, 'The Asylum Lottery', The Guardian, 25 Jan. 2002.
2. For a detailed empirical study of inconsistent decision making within the US asylum process, see, J. Ramji-Nogales, A.I. Schoenholtz and P.G. Schrag, 'Refugee Roulette: Disparities in Asylum Adjudication' (2007) 60 Stanford Law Review 295-411.
3. Ibid., at 378-89;
4. S.H. Legomsky, 'Learning to Live with Unequal Justice: Asylum and the Limits to Consistency' (2007) 60 Stanford Law Review 413-74;
5. M.H. Taylor 'Refugee Roulette in an Administrative Law Context: The Déjà vu of Decisional Disparities in Agency Adjudication' (2007) 60 Stanford Law Review 475-501.
6. Saad, Diriye and Osorio a Secretary of State for the Home Department [2002] Imm. AR 471 at 479 (CA);
7. National Audit Office, Improving the Speed and Quality of Asylum Decisions (2003-04 HC 535), 37;
8. HK a. Secretary of State for the Home Department [2006] EWCA Civ 1037 at para. 27 (Neuberger LJ) (CA).
9. R. v. Immigration Appeal Tribunal and Secretary of State for the Home Department, ex parte Shah [1997] Imm. AR 145 at 153 (HC).
10. H. Zahle, 'Competing Patterns for Evidentiary Assessments' in G. Noll (ed.), Proof Evidentiary Assessment and Credibility in Asylum Procedures (Leiden/Boston: Martinus Nijhoff, 2005), 13-26 at 21.
11. See especially, Karanakaran v. Secretary of State for the Home Department [2000] 3 All ER 449 at 477-80 (Sedley LJ) (CA).
12. See generally, R. Thomas, 'Evaluating Tribunal Adjudication: Administrative Justice and Asylum Appeals' (2005) 25 Legal Studies 462-98.
13. AS and AA v. Secretary of State for the Home Department (Effect of previous linked determination) Somalia [2006] UKAIT00052 at para. 63 (AIT) (note: 'UKAIT' is the neutral citation reference for determinations of the United Kingdom Asylum and Immigration Tribunal).
14. The novelty of this task initially prompted the English courts (before the establishment of a general right of appeal in asylum cases in 1993) to abstain from subjecting initial decisions refusing asylum to judicial scrutiny as they considered themselves 'ill-equipped' to assess conditions in other countries. See, R. v. Secretary of State for the Home Department, ex parte Bagdaycay, Santis, and Norman [1986] Imm. AR 8 at 16 (Neill LJ) (CA). However, this approach was subsequently overturned by the House of Lords: As asylum decisions involve the most fundamental of all human rights, the right to life, the courts should subject them to 'the most anxious scrutiny'.
15. See, Bugdaycay v. Secretary of State for the Home Department and related appeals [1987] 1 All ER 940 at 951 (Lord Bridge) (HL).
16. As the Office of the United Nations High Commissioner for Refugees (UNHCR), Handbook on Determining Refugee Status (1992), para. 42 explains: 'The applicant's statements cannot ... be considered in the abstract, and must be viewed in the context of the relevant background situation. A knowledge of conditions in the applicant's country of origin - while not a primary objective - is an important element in assessing the applicant's credibility'. Under the EC Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, OJ L304/12 of 30 Sept. 2004 (the 'Qualification' Directive), art.4(3)(a) the assessment of an application for international protection must take into account 'all relevant facts as they relate to the country of origin at the time of taking a decision on the application'.
17. Appeals listed as potential country guidance tend to have a longer 'lead in' time than ordinary asylum appeals with the tribunal panel holding a 'For Mention Only' hearing prior to the substantive hearing in order to clarify the issues and evidence to be relied upon. Some substantive hearings are concluded in a day while others have been conducted over several days.
18. KA v. Secretary of State for the Home Department (draft related risk categories updated) Eritrea CG [2005] UKAIT00165 at para. 10 (AIT).
19. SL and others v. Secretary of State for the Home Department (Returning Sikhs and Hindus) Afghanistan CG [2005] UKIAT00137 at para. 26 (AIT).
20. In England and Wales, the Court of Appeal determines appeals from 'reconsidered' AIT decisions (those appeals that having been determined initially are found to contain an error of law and are then 'reconsidered' by the Tribunal in order to correct that error of law) and determinations produced by a tribunal panel of three legally qualified members. In Scotland, such appeals lie to the Court of Session and in Northern Ireland to the Court of Appeal in Northern Ireland. See, Nationality, Immigration and Asylum Act 2002, ss 103B and 103E.
21. Manzeke v. Secretary of State for the Home Department [1997] Imm. AR 524 at 529 (Lord Woolf MR) (CA).
22. S and Others v. Secretary of State for the Home Department [2002] INLR 416 at 435 (Laws LJ) (CA).
23. Dorodian v. Secretary of State for the Home Department (01TH01537), date notified 23 Aug. 2001 (IAT);
24. Ahmadi v. Secretary of State for the Home Department [2002] UKIAT05079 (IAT).
25. Shirazi v. Secretary of State for the Home Department [2004] 2 All ER 602 at 611 (Sedley LJ) (CA).
26. Ibid.
27. For an emphatic endorsement of the country guidance system, see, R. (Iran) v. Secretary of State for the Home Department [2005] INLR 633 at 661-2 (Brooke LJ) (CA) (highlighting the Tribunal's 'beneficent and valuable role in giving CG decisions' and their 'very great importance ... in achieving consistency in decision-making').
28. See also, Januzi v. Secretary of State for the Home Department [2006] UKHL 5 at para. 50 (Lord Hope) (HL) (noting that it is desirable for Immigration Judges to follow country guidance cases 'in the interests of fairness and consistency. But in the end of the day each case, whether or not such guidance is available, must depend on an objective and fair assessment of its own facts').
29. FS and others v. Secretary of State for the Home Department (Iran - Christian Converts) Iran CG [2004] UKIAT 00303.
30. To illustrate the scale of the jurisdiction, the Tribunal's hearing centre in Hatton Cross (near London's Heathrow airport) - reputedly, one of Europe's largest tribunal centres - has 26 hearing rooms in addition to two of its own 'satellite' hearing centres (one of which is the Harmondsworth 'detained fast-track' appeal centre); some 120 Immigration Judges are linked to this hearing centre. As its name suggests, the Asylum and Immigration Tribunal also handles various types of non-asylum appeals. As regards caseload, in 2006/07 (2007/08 figures in brackets), the Tribunal determined a total number (both immigration and asylum) of 166,899 (161,517) appeals of which 14,735 (13,700) were asylum appeals; it also determined 7,284 (7,691) review applications in asylum cases and 'reconsidered' some 3,935 (3,573) asylum appeals (source: Asylum and Immigration Tribunal website, Provisional Statistics for 2006-07 and 2007-08). Of the total number of Immigration Judges, 121 are salaried (full-time) and 470 are fee-paid (sit on a part-time basis); the Tribunal also has some 52 non-legal members. The Tribunal's President is a High Court judge.
31. The Tribunal maintains a list of country guidance determinations on its website from where they can be accessed; because of their length, country guidance determinations are not normally published in the specialist law reports such as the Immigration Appeal Reports and the Immigration and Nationality Law Reports.
32. Under the Asylum and Immigration Tribunal (Procedure) Rules SI 2005/230, r 21(2) an Immigration Judge 'must not adjourn a hearing of an appeal on the application of a party, unless satisfied that the appeal cannot otherwise be justly determined'. Under r 23(4), the Tribunal must serve its determination on the Home Office by sending it not later than 10 days after the hearing finishes. The AIT operates under a target to complete 75% of asylum appeals within six weeks commencing from when the Tribunal receives the appeal and finishing when the Tribunal's written determination is promulgated, see, Tribunal Service, Reforming, Improving and Delivering: Annual Report and Accounts 2007-08 (2007-08 HC 802), 98.
33. It is not possible to produce statistics in this respect because the Tribunals Service of the Ministry of Justice, which provides administrative support to the AIT, does not collect any. However, it is apparent that the number of unrepresented appeals has increased in recent years. There are particular trends in this jurisdiction concerning the role representation: First, that of discontinuous representation in which an appellant may have successive representatives; and, secondly, the practice of 'dumping' by which some representatives, having acted initially for an appellant, will no longer do so because such work will not be covered by publicly funded legal aid.
34. In the UK, the first, though very far from sole, source of country information is usually the relevant Home Office Country of Origin Information Service report . Following concerns over the quality, objectivity and accuracy of these reports, the Advisory Panel on Country Information was established in 2002 to consider and make recommendations to the Home Secretary concerning their content. The Home Office is entitled to be represented before the Tribunal; usually this role is undertaken by an agency official known as a presenting officer.
35. A number of commentators have expressed concerns about the quality of the UK's asylum process. See, most recently, the Independent Asylum Commission, Fit for Purpose Yet? The Independent Asylum Commission's Interim Findings (London: Independent Asylum Commission, 2008).
36. For specific concerns over the quality of initial Home Office decisions, see, House of Commons Home Affairs Committee, Asylum Applications (2003-04 HC 218);
37. Amnesty International, Get It Right: How Home Office Decision Making Fails Refugees (London: Amnesty International, 2004).
38. See, House of Commons Early Day Motion 1729, 'Country Guidance Tribunal on the Democratic Republic of Congo', 19 June 2007;
39. R. (Lutete and Others) v. Secretary of State for the Home Department [2007] EWHC Admin 2331 (HC);
40. 'Judge halts Democratic Republic of Congo deportations', BBC News website, 23 Aug. 2007.
41. The Tribunal's subsequent country guidance was provided in BK v. Secretary of State for the Home Department (Failed asylum seekers) DRC CG [2007] UKAIT00098 (AIT).
42. In July 2008, the Home Office announced that it would defer enforcing the return of non-Arab Darfuri asylum seekers to Sudan until the Tribunal had issued country guidance on the safety of return to Khartoum (Hansard HL Deb., vol.703 col.WA263, July 22, 2008).
43. See generally, S. Halliday, Judicial Review and Compliance with Administrative Law (Oxford: Hart, 2003).
44. This is because, under the Nationality, Immigration and Asylum Act 2002 Act, s 107(3) (as inserted by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, schedule 2, para. 22(1)(c)), the Tribunal's practice directions 'may, in particular, require the Tribunal to treat a specified decision of the Tribunal as authoritative in respect of a particular matter'. The Practice Directions (2007), para. 18.2 state that a reported Tribunal decision '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' that determined the appeal.
45. See also, HGMO v. Secretary of State for the Home Department (Relocation to Khartoum) Sudan CG [2006] UKAIT00062 at paras. 141-2 (AIT).
46. B. Zalar, 'Results of a Survey of Country Guidance Models' (a paper presented at the 7th Biennial IARLJ World Conference, Nov. 2006).
47. See, Canadian Immigration and Refugee Board (IRB), . The IRB has experimented with a technique analogous to the AIT's country guidance system, known as 'lead cases', in order to promote consistent, informed, efficient, and expeditious decision making. However, after a 'lead case' on the position of Hungarian Roma was overturned by the Federal Court of Appeal on the ground of bias, the IRB seems not to have pursued the initiative.
48. See, Geza v. Minister for Citizenship and Immigration [2006] FCA 124 (Canadian Federal Court of Appeal). In their study of the IRB, F. Crépeau and D. Nakache, 'Critical Spaces in the Canadian Refugee Determination System: 1989-2002' 20 IJRL 50-122 (2008) at 115-16 note that, in order to strengthen the quality of its decisions, the Board had also established 'country discussion groups' which allowed members to discuss a country situation; this helped members to refine their judgment on complex factual situations.
49. During this complex litigation (2005-8), the Tribunal issued three country guidance determinations on Zimbabwe after the Court of Appeal twice remitted the case back to the Tribunal. See, AA (No.1) v. Secretary of State for the Home Department (Involuntary returns to Zimbabwe) Zimbabwe CG [2005] UKAIT00144 (AIT);
50. AA and LK v. Secretary of State for the Home Department [2007] 2 All ER 160 (CA);
51. AA (No.2) v. Secretary of State for the Home Department (Risk for involuntary returnees) Zimbabwe CG [2006] UKAIT00061 (AIT);
52. AA (Zimbabwe) v. Secretary of State for the Home Department [2007] EWCA Civ 149 (CA);
53. HS v. Secretary of State for the Home Department (returning asylum seekers) Zimbabwe CG [2007] UKAIT00094 (AIT);
54. HS (Zimbabwe) v. Secretary of State for the Home Department [2008] EWCA Civ 915 (CA).
55. BK, above n. 27. This country guidance case proceeded in the context of a political campaign involving a series of public meetings organized by the Congo Support Project (speakers at which had included witnesses who subsequently gave evidence before the Tribunal). The appeal hearing was conducted with demonstrations outside the Tribunal building and the litigation also attracted some attention within the Democratic Republic of Congo itself.
56. KG v. Secretary of State for the Home Department (Review of current situation) Nepal CG [2006] UKAIT 00076 at para. 43 (AIT).
57. For country guidance purposes, the Tribunal's Senior Immigration Judges are organized into three 'country groups' which oversee different asylum producing countries. Overall responsibility for country guidance resides with the country guidance co-ordinator who is a Senior Immigration Judge.
58. Asylum and Immigration Tribunal, Practice Directions (2007), para. 18.3.
59. The old two-tier appeal system, which comprised the Immigration Appellate Authority (IAA) and the Immigration Appeal Tribunal (IAT), was replaced with the 'single tier' AIT in 2005 because of the Government's desire to speed up the appeals process. The resulting structure was in large part a political compromise because of opposition to the Government's controversial and ultimately aborted proposal to oust judicial review of tribunal decisions. See further, R. Rawlings, 'Review, Revenge and Retreat' (2005) 68 Modern Law Review 378-410;
60. R. Thomas, 'After the Ouster: Review and Reconsideration in a Single Tier Tribunal' [2006] Public Law 674-86.
61. Before its abolition, the IAT had developed an embryonic country guidance system under which decisions which were to be regarded as definitive unless there was a material change in country conditions. See, for instance, Secretary of State for the Home Department v. S (01TH00632), date notifi ed 1 May 2001 (IAT), which concerned Croatian ethnic Serbs.
62. In Aug. 2008, the Home Office consulted on a further set of reforms to the structure of the appeals process, see, Home Office, Consultation: Immigration Appeals - Fair Decisions; Faster Justice (London: Home Office, 2008). These proposals would bring the AIT within the rationalization of the broader tribunal appeal system under the Tribunals, Courts and Enforcement Act 2007. A two-tier appellate structure would be re-instated for immigration and asylum appeals: initial asylum appeals would be heard by the First-tier Tribunal; the losing party could challenge an adverse decision before a separately constituted asylum and immigration appeals chamber of the Upper Tribunal, in which the Senior Immigration Judges would be located and country guidance cases heard.
63. Individual appeals selected for country guidance purposes are almost always cases that have already been within the appeal system for a period of time, that is an Immigration Judge has dismissed the appeal and reconsideration has been ordered, rather than being cases that in which there has been no previous judicial decision by the Tribunal.
64. MA v. Secretary of State for the Home Department (Operational Guidance, prison conditions, significance) Sudan [2005] UKAIT00149 at paras. 27-8 (AIT).
65. Interview with a Senior Immigration Judge.
66. BA and Others v. Secretary of State for the Home Department (Bedoon - statelessness - risk of persecution) Kuwait CG [2004] UKIAT00256 (IAT).
67. HE v. Secretary of State for the Home Department (Bidoon - statelessness - risk of persecution) Kuwait CG [2006] UKAIT00051 (AIT).
68. Interview with a Senior Immigration Judge.
69. S & Others, above n. 16 at 436 (Laws LJ).
70. See, UNHCR, Country of Origin Information: Towards Enhanced Cooperation (Geneva: UNHCR, 2004);
71. International Association of Refugee Law Judges (IARLJ): Country of Origin Information-Country Guidance Working Party, Judicial Criteria for Assessing Country of Origin Information (COI): A Checklist (a paper presented at the 7th Biennial IARLJ World Conference, Nov. 2006);
72. G. Gyulai, Country Information in Asylum Procedures: Quality as a Legal Requirement in the EU (Budapest: Hungarian Helsinki Committee, 2007).
73. On the use of country information within the UK asylum process, see, B. Morgan, V. Gelsthorpe, H. Crawley and G.A. Jones, Country of Origin Information: A User and Content Evaluation (London: Home Office Research Study 271, 2003);
74. M.L. Pirouet, 'Materials Used in Making Asylum Decisions in the U.K.' (2003) 93 African Research & Documentation 29-38.
75. EC Council Directive on Minimum Standards on Procedures for Granting and Withdrawing Refugee Status, 2005/85/EC of 1 Dec. 2005, OJ 13. Dec 2005, L 326/13-34, art 8(2)(b);
76. Statement of Changes to Immigration Rules (HC 82), 19 Nov. 2007, r 339JA.
77. C. Yeo, 'Country Information, the Courts and Truth' (2005) 11(2) Immigration Law Digest 26-8 at 27.
78. C. Yeo (ed.), Country Guideline Cases: Benign and Practical? (London: Immigration Advisory Service, 2005), 3.
79. See, BK, above n. 27 and HH & Others v. Secretary of State for the Home DRpartment (Mogadishu: Armed conflict: risk) Somalia CG [2008] UKAIT00022 (AIT). In BK, the appendix listing the background country materials considered by the Tribunal was itself nine pages long. In its country guidance determinations, the Tribunal will regularly provide a head-note summary of its decision.
80. See, A. Good, '"Undoubtedly an Expert"? Country Experts in the UK Asylum Courts' (2004) 10 Journal of the Royal Anthropological Institute 113-33;
81. R. Thomas, 'Expert Evidence in Asylum Appeals' (2007) 13(2) Immigration Law Digest 2-6.
82. See, Slimani v. Secretary of State for the Home Department (Content of Adjudicator Determination) Algeria (Starred determination) (01TH00092), date notified 12 Feb. 2001 at para. 17 (IAT);
83. Secretary of State for the Home Department v. SK (Return - Ethnic Serb) Croatia CG (Starred determination) [2002] UKIAT05613 at para. 5 (IAT);
84. GH v. Secretary of State for the Home Department (Former KAZ - Country Conditions - Effect) Iraq CG [2004] Imm. AR 707 at 726-7 (IAT).
85. The Tribunal's Practice Directions (2007), para. 8A.4 state that 'an expert should assist the Tribunal by providing objective, unbiased opinion on matters within his or her expertise, and should not assume the role of an advocate'.
86. A. Good, 'Expert Evidence in Asylum and Human Rights Appeals: An Expert's View' 16 IJRL 358-79 (2004).
87. See, K v. Secretary of State for the Home Department [2006] Imm. AR 161 (CA);
88. Jasim v. Secretary of State for the Home Department [2006] EWCA Civ 342 (CA);
89. FK (Kenya) v. Secretary of State for the Home Department [2008] EWCA Civ 119 (CA).
90. LP v. Secretary of State for the Home Department (LTTE area - Tamils - Colombo - risk?) Sri Lanka CG [2007] UKAIT00076 at paras. 18-42 (AIT).
91. JC v. Secretary of State for the Home Department (double jeopardy: Art 10 CL) China CG [2008] UKAIT00036 (AIT). In this country guidance decision, the Tribunal considered whether or not the risk of prosecution or re-prosecution of Chinese nationals who have committed offences overseas on their return to China was sufficient to engage international protection under the Refugee Convention, the ECHR or to require humanitarian protection. The Tribunal was presented with a range of country information totalling well over 1,000 pages; it also had the assistance of significant and detailed expert evidence from six country experts one of whom was recognized to be the world's leading authority on Chinese law.
92. AH (Sudan), IG (Sudan) and NM (Sudan) v. Secretary of State for the Home Department [2007] Imm. AR 584 at 601 (Buxton LJ) (CA).
93. UNHCR, above n. 10, para. 196.
94. AH (Sudan), above n. 56 at 601;
95. LP, above n. 42 at paras. 45 and 204-5.
96. S & Others, above n. 16 at 431 (Laws LJ).
97. See, VL v. Secretary of State for the Home Department (Risk - Failed Asylum Seekers) Democratic Republic of Congo CG [2004] UKIAT 00007 (IAT) in which the Tribunal considered a country expert's report of which it was aware but which neither party to the appeal had presented.
98. Curiously, the UNHCR has not to date participated in country guidance hearings even though it may, under the Asylum and Immigration Tribunal (Procedure) Rules SI 2005/230, r 49, intervene in any appeal before the AIT and has also acted as an intervener before the House of Lords in cases raising general points of asylum law.
99. IA and Others v. Secretary of State for the Home Department (Ahmadis: Rabwah) Pakistan CG [2007] UKAIT00088 (AIT).
100. See also, MJ and ZM v. Secretary of State for the Home Department (Ahmadis - risk) Pakistan CG [2008] UKAIT00033 (AIT).
101. HGMO, above n. 29.
102. SB v. Secretary of State for the Home Department (PSG - Protection Regulations - Reg 6) Moldova CG [2008] UKAIT00002 (AIT).
103. See, HH & Others, above n. 49;
104. KH v. Secretary of State for the Home Department (Article 15 (c) Qualification Directive) Iraq CG [2008] UKAIT00023 (AIT).
105. AB and DM v. Secretary of State for the Home Department (Risk categories reviewed - Tutsis added) DRC CG [2005] UKIAT00118 (IAT);
106. MA v. Secretary of State for the Home Department (Draft evaders - illegal departures - risk) Eritrea CG [2007] UKAIT00059 (AIT);
107. NA v. Secretary of State for the Home Department (Palestinians - risk) Iraq CG [2008] UKAIT 00046 (AIT);
108. HS, above n. 32.
109. KA, above n. 12 at para. 74.
110. See, NABD v. Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 at para. 27 (McHugh J) (Australian High Court).
111. Some of the impetus to identify risk factors has on occasion emanated from the higher courts; for instance, on the country issue of Albanian blood feuds, see, Koci v. Secretary of State for the Home Department [2003] EWCA Civ 1507 (CA);
112. TB v. Secretary of State for the Home Department (Blood Feuds - Relevant Risk Factors) Albania CG [2004] UKIAT00158 (IAT).
113. LP, above n. 54 at paras. 207-22.
114. The risk factors were: Tamil ethnicity; a previous record as a suspected or actual member or supporter of the Liberation Tigers of Tamil Eclam (LTTE); a previous criminal record and/or outstanding arrest warrant; bail jumping and/or escaping from custody; having signed a confession or similar document; having been asked by the security forces to become an informer; the presence of scarring; having returned from London or other centre of LTTE activity or fund-raising; illegal departure from Sri Lanka; the lack of ID card or other documentation; having made an asylum claim abroad; and having relatives in the LTTE. In NA v. United Kingdom (Application no. 25904/07, 17 July 2008) at para. 129 (ECtHR), the European Court of Human Rights concluded that it was in principle legitimate, when assessing the individual risk to Sri Lankan Tamil returnees, to carry out that assessment on the basis of these 'risk factors'.
115. For instance, being subject to an outstanding arrest warrant, or being a proven bail jumper from a formal bail hearing.
116. LP, above n. 54 at para. 227.
117. R. (Thangeswarajah) v. Secretary of State for the Home Department [2007] EWHC Admin 3288 at para. 10 (HC);
118. AN & SS v. Secretary of State for the Home Department (Tamils - Colombo - risk?) Sri Lanka CG [2008] UKAIT00063 at paras. 109-10 (AIT).
119. K.C. Davis, Discretionary Justice: A Preliminary Inquiry (Urbana and Chicago: University of Illinois Press, 1969), 107.
120. For a general discussion of the developing role of precedent in UK tribunals, see, T. Buck, 'Precedent in Tribunals and the Development of Principles' (2006) 25 Civil Justice Quarterly 458-84.
121. Asylum and Immigration Tribunal, Practice Directions (2007), para. 18.2.
122. Ibid., para. 18.4. Appeals determined by Immigration Judges can only be challenged on the basis that they contain a material error of law. See, Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, s 26.
123. KH (Sudan) v. Secretary of State for the Home Department [2008] EWCA Civ 887 at para. 4 (Sedley LJ) (CA).
124. NM v. Secretary of State for the Home Department (Lone women - Ashraf) Somalia CG [2005] UKIAT00076 at para. 140 (IAT).
125. Ibid. at para. 141.
126. See also, OM v. Secretary of State for the Home Department (AA(1) wrong in law) Zimbabwe CG [2006] UKAIT00077 (AIT).
127. MY v. Secretary of State for the Home Department (Country Guidance cases - no fresh evidence) Eritrea [2005] UKAIT00158 (AIT);
128. Ariaya v. Secretary of State for the Home Department [2006] Imm. AR 347 at 364 (Richards LJ) (CA).
129. LT v. Secretary of State for the Home Department (Internal flight - Registration system) Turkey [2004] UKIAT000175 at para. 3 (IAT).
130. NM, above n. 78 at para. 141.
131. VL, above n. 60;
132. AB and DM, above n. 66 at paras. 47-50.
133. MK v. Secretary of State for the Home Department (AB and DM confirmed) Democratic Republic of Congo CG [2006] UKAFF00001 at para. 18 (AIT).
134. BK above n. 27.
135. On the use of this general technique in tribunal precedents, see, J.A. Farmer, Tribunals and Government (London: Weidenfeld and Nicolson, 1974), 174-5.
136. See, IA HC KD RO HG v Secretary of State for the Home Department (Risk Guidelines-Separatist) Turkey CG [2003] UKIAT 00034 at para. 46 (IAT);
137. IK v Secretary of State for the Home Department (Returnees - Records - IFA) Turkey CG [2004] UKIAT00312 at para. 133 (IAT).
138. SL, above n. 13.
139. See, GG v. Secretary of State for the Home Department (political oppositionists) Ivory Coast CG [2007] UKAIT00086 (AIT).
140. RA v. Secretary of State for the Home Department (Christians) Iraq CG [2005] UKIAT00091 at para. 74.
141. See, Sandralingham and Ravichandran v. Secretary of State for the Home Department [1996] Imm. AR 97 at 112-13 (Simon Brown LJ) (CA);
142. Nationality, Immigration and Asylum Act 2002, s 85(4).
143. Immigration Judge asylum appeal determination (unreported, 2007).
144. NM, above n. 78 at para. 142.
145. This country guidance decision was the last one produced by the IAT before the introduction of the AIT in 2005. At para. 144, the Tribunal ended its determination by noting that the country guidance system may be refined and improved but that it would remain as 'part of the continuing input into immigration judge decision making ... The haphazard ways of old will not return. Those ways were productive of inconsistency, incoherence, injustice and waste'.
146. For instance, representatives may wish to submit further evidence after the appeal hearing has finished, a course that the Tribunal has indicated will only be allowed in exceptional circumstances. See, AN & SS, above n. 73 at para. 95: 'Country guidance cases take long enough as it is to be written and promulgated. The hearing should normally be the cut-off point. If the Tribunal is bombarded with further evidence and arguments after the hearing but before the determination has been written up, it may be an unconscionably long time before the determination is complete.'
147. Immigration Judge asylum appeal determination (unreported, 2007).
148. HS, above n. 32.
149. See, for instance, the Prevention of Terrorism Act 2005, s 13.
150. This section draws upon interviews with representatives and Senior Immigration Judges.
151. Interview with a Senior Immigration Judge.
152. See, C. Yeo, 'Certainty, consistency and justice' in Yeo (ed.), above n. 48 at 9-29;
153. J. Ensor, 'Country Guideline Cases: Can they be Challenged?' (2005) 11 Immigration Law Digest 19-23;
154. Immigration Law Practitioners' Association, Country Guidance Cases: ILPA members' concerns (notes of a meeting with the AIT, Mar. 2006).
155. L.L. Fuller, 'The Forms and Limits of Adjudication' (1978) 92 Harvard Law Review 353-409 at 394-404.
156. Ibid., at 398.
157. This is supported by appeals determined by Immigration Judges drawn from my empirical research.
158. J.W.F. Allison, 'Fuller's Analysis of Polycentric Disputes and the Limits of Adjudication' (1994) 53 Cambridge Law Journal 367-83.
159. G. Care, 'The Judiciary, the State and the Refugee: The Evolution of Judicial Protection in Asylum - A UK Perspective' (2005) 28 Fordham International Law Journal 1421-56 at 1455.
160. SK, above n. 51 at para. 5.
161. J. Barnes, 'Expert Evidence - The Judicial Perspective in Asylum and Human Rights Appeals' 16 IJRL 349-57 at 349 (2004).
162. R. (Madan and Kapoor) v. Secretary of State for the Home Department [2008] 1 All ER 971 at 978 (CA). Higher up the judicial hierarchy, the House of Lords in AH (Sudan) v. Secretary of State for the Home Department [2007] UKHL 49 at para. 30 (Baroness Hale) (HL) has described the AIT as 'an expert tribunal charged with administering a complex area of law in challenging circumstances'.
163. Good, above n. 52 at 359.
164. A. Good, Anthropology and Expertise in the Asylum Courts (London: Routledge-Cavendish, 2007), 234-5.
165. On this general approach toward analysing administrative justice, see, J.L. Mashaw, Bureaucratic Justice: Managing Social Security Disability Claims (New Haven: Yale University Press, 1983);
166. M. Adler, 'A Socio-legal Approach to Administrative Justice' (2003) 25 Law & Policy 323-52.
167. In the UK, psychiatric and medical experts are often commissioned by asylum appellants to produce expert reports which are then relied upon before the Tribunal in support of the credibility of the appellant's claim to be in need of international protection. There is an ongoing debate concerning what degree of weight can and ought to be attributed to such reports. See, D. Rhys Jones and S. Verity Smith, 'Medical Evidence in Asylum and Human Rights Appeals' 16 IJRL 381-410 (2004);
168. HE v. Secretary of State for the Home Department (DRC - credibility and psychiatric reports) DRC [2005] Imm AR 119 (IAT);
169. RT v. Secretary of State for the Home Department (medical reports - causation of scarring) Sri Lanka [2008] UKAIT0009 (AIT).
170. For further development of this analysis in the asylum context, see, R. Thomas, 'Risk, Legitimacy and Asylum Adjudication' (2007) 58 Northern Ireland Legal Quarterly 49-77.
171. IAREJ, above n. 45 at 19.
172. There are, of course, tensions between the administrative and legal models. From the Home Office's perspective, while country guidance can perform a useful function in securing consistency, it depends on the guidance issued. It is perhaps not too cynical to suggest that the Home Office would prefer country guidance to be consistently negative for appellants. At the same time, for the Home Office, the country guidance system represents a potential loss of control from itself to the Tribunal; hence the Home Office's inclination to concede or reconsider individual appeals listed for country guidance purposes - better to
173. For a critique of Home Office country reports, see, N. Carver (ed.), Home Office Country Assessments: An Analysis (London: Immigration Advisory Service, 2003).
174. See also, House of Lords European Union Committee, Handling EU aylum claims: New approaches examined (2003-04 HE 74), paras. 104
175. and 115 (arguing that a high quality asylum decision making system requires 'authoritative and credible country of origin information' but that Home Office country reports were not generally considered to be 'authoritative, credible and free from political or policy bias'). On US State Department reports, see, Said a Netherlands (2006) 43 EHRR 248 at 262 (separate opinion ofjudge Loucaides) (ECtHR): 'There is always an element of suspicion that such Reports are influenced by political expediency based on US foreign policy with reference to the situation in the country concerned and that they serve a political agenda.'
176. In the UK, the Court of Appeal has emphasized that country information produced by NGOs, such as Amnesty International, 'a responsible, important and well-informed body', deserves to be taken seriously, see, R. v. Immigration Appeal Tribunal, exparte K [1999] EWCA Civ 2066 (CA);
177. SA (Syria) and JA (Syria) a Secretary of State for the Home Department [2007] EWCA Civ 1390 at para. 22 (Toulson EJ) (CA).
178. By contrast, the Tribunal has, in LP above n. 54 at para. 44, noted that material from NGOs'can be selective ... Immigrationjudges are aware that much of the background evidence which is adduced before them comes from sources with a special interest or a specific agenda. That must be borne in mind when assessing the weight to be put on any background evidence'.
179. NM, above n. 78 at paras. 108-15.
180. For treatments of the asylum debate in the UK, see, N. Steiner, Arguing About Aglum: The Complexity of Refugee Debates in Europe (New York: St Martin's Press, 2000), 97-132;
181. L. Schuster, The Use and Abuse of PoliticalAglum in Britain and Germany (London: Frank Cass, 2003), 131-79;
182. M. Gibney, The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees (Cambridge: Cambridge University Press, 2004), 107-31.
183. J. Jowell, 'The Legal Control of Administrative Discretion' [197 3] Public Law 178-220 at 198.
184. UNHCR, above n. 10, para. 189.
185. Interesting questions arise herein terms of the potential for a common country guidance system in the context of the developing Common European Asylum System. A project group of eight EU member states are currently in the process of elaborating Common EU Guidelines for Processing Country of Origin Information. If the EU wishes to develop a common asylum system, then does this not also imply a common country guidance system to produce consistency across the EU? If so, then how might it be organized? Which particular judicial institution might produce such guidance?
186. See generally, Noll (ed.), above n. 5;
187. R. Thomas, Assessing the Credibility of Asylum Claims: UK and EU Approaches Examined' (2006) 8 European,7ournal of Migration and Law 79-96;
188. R. Byrne, 'Assessing Testimonial Evidence in Asylum Proceedings: Guiding Standards from the International Criminal Tribunals' 19 IJRL 609-38 (2007).
189. On disparities incredibility assessments, see, HF (Algeria) v. Secretary of State for the Home Department [2007] EWCA C iv 445 at para. 25 (CA) in which Carnwarth EJ commented that judging creclibility' is inevitably a difficult and imperfect exercise. Different tribunals hearing the same witnesses may reach quite different views'.
190. More generally, the AIT has itself candidly noted, in RU v. Entry Clearance Officer, Lagos (Immigration Judge: Treatment of evidence [2008] UKAIT00067 at para. 10 (AIT), that 'a diverse judiciary such as that of this Tribunal will be diverse in its attitude and approach as well as in other characteristics'.