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Country Guidance cases for OISC professionals

This blog is for OISC professionals wishing to have knowledge of the basis of country guidance cases and how to utilise them in preparation of a case.

What are Country Guidance cases?

Country Guidance cases are cases chosen to define the Tribunal’s position on the situation in a particular country.  Often the country guidance will be findings on the situation for a certain group in that particular country.  They usually come about where there are large numbers of asylum applicants applying in the UK from a certain group and therefore it becomes necessary for the Tribunal to create law on the situation in respect of those people.

How do Country Guidance cases operate?

Country Guidance Appellants and Respondents are informed well in advance of the hearing that the decision has been taken to hear their case as a Country Guidance case.  This gives them time to enlist experts for the preparation of reports.  There will usually be at least one expert and often more than one. Experts will provide reports and will often attend the hearing so that they can be cross-examined by the Home Office. 

There is usually a great volume of documents, which are all very detailed, presented before the Tribunal in a Country Guidance case.  The Home Office is usually represented by senior representatives or counsel and there will also usually be a panel of judges, so more than one judge.  The hearing will usually last more than one day and the decision will be binding on other cases of that type.  Future hearings of cases related to that country and group of people will need to follow the reasoning in the country guidance case or have a very good reason to depart from it. Failure to provide good reasons for departing from a Country Guidance case is an error of law and would be a point on appeal. 

An example of a Country Guidance Case

The current Country Guidance for Afghanistan and generalised risk is AS (Afghanistan) [2019] EWCA Civ 873.  On appeal from the Upper Tribunal to the Court of Appeal, a factual error noted in the grounds of appeal, failed to put the decimal point in a figure correctly.  The Upper Tribunal found that the United Nations Assistance Mission in Afghanistan reported a statistic for death and injury resulting from armed conflict and security incidents in Kabul as 0.01% which equated to 1 in 10,000 where the true statistic was 0.1% which equated to 1 in 1,000 people. The case has been remitted on a narrow point of law only and with the Tribunal needing to consider the risk of indiscriminate violence to returned asylum seekers from security incidents.

Advice from immigration lawyers

When representing in any asylum case, you will need to review the Country Guidance cases and draw the attention of the Tribunal to these cases. It would be highly unusual for the Tribunal to be unaware of Country Guidance cases, however, you should ensure these are cited to the Tribunal and ensure they are under consideration.  

It is sometimes the case that the situation in a country would have changed since the previous Country Guidance was determined, however, if this is the case, then strong reasons must be put before the Tribunal for why to depart from the published Country Guidance. 

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