Asylum cases are dealt with differently in many respects from other cases that come before our judiciary. One distinctive feature is the system of "Country Guidance Cases", in which certain cases are singled out by the Tribunal to become binding rulings on the conditions in a certain country. As part of Morton Fraser's series of articles marking Refugee Week, Angus Harrison takes a look at some of the issues surrounding this controversial aspect of refugee law. Asylum law is demanding stuff. It requires a knowledge of the prevailing political conditions in a variety of countries across the globe, many of which are subject to fast-paced changes.
Researching and arguing the ins and outs of each conflict and troubled region in every case that comes before the Tribunal would be an extremely time consuming and costly process, and would also raise the danger that different judges would draw different conclusions in relation to the same political situation. The two needs of preventing judicial time being wasted and ensuring consistency are the principal rationales behind the system of "Country Guidance" cases that has been developed in the field of asylum law since 2003. Under this system, certain cases are singled out to go on to become binding precedents on the conditions for one group in a certain country. Until superseded, Country Guidance determinations are binding upon lower courts in any subsequent appeal in so far as the appeal relates to the same issue and depends upon similar evidence.
From one perspective, asylum cases are uniquely suited to this system. In asylum cases, the same issues - say, for example, the risk of persecution for those who renounce Islam in Iran - come up time and time again. In theory the objective facts around the treatment of such individuals remain the same in every case. In Shirazi, a case involving this very group, the Tribunal noted,
“It has to be a matter of concern that the same legal and political situation, attested by much the same in-country data from case to case, is being evaluated differently by different tribunals”.
If a definitive ruling on the risk of persecution of religious apostates in Iran could be reached, this would seem to benefit all involved.
This aim, however, raises a number of tricky issues. Foremost among them is that if the court is to decide such cases, then it needs to ensure it decides them correctly. It is even more crucial that in cases singled out to become Country Guidance, the Tribunal is accurate, fair and comprehensive in the evidence it listens to, because of the wider stakes involved. There have been numerous concerns raised by the higher courts that the Tribunal is not living up to these standards.
Such cases can also be self-protecting. For example, assessments of legal aid for an appeal depend on a test of the merits of a case. Country Guidance cases have been used to assess these merits. But if the very issue at stake is a challenge to the Country Guidance case itself, a cycle of reinforcement can be created that can be extremely hard to break out of.
Another concern is that the system does not suit fast changing situations. While some risk factors remain reasonably constant over a period of years, such as, arguably, the risk of being trafficked in Albania or the risk to homosexuals in Iran, others fluctuate. In Syria at the moment, for example, the situation on the ground is developing rapidly and the risk factors may not be the same as they were last week. Binding findings of fact from months or years previously are therefore often not flexible enough to react to drastic changes in circumstances.. The Appellant may of course lead evidence to show that the situation has changed - but instead of establishing their case afresh, they are coming from the starting point of having to overturn a highly authoritative case which provides the Tribunal with certain preconceptions, leaving them at a significant disadvantage.
Perhaps a more fundamental issue is that the Country Guidance system is intrinsically incompatible with our adversarial system. There is an inherent tension between the Tribunal attempting to make generalised findings about a specific country and the fact that, within the adversarial system, each party is litigating to win only on a specific set of facts. The Appellant's representative leads the evidence that he or she feels is necessary to win their client's particular case.
The introduction of Country Guidance cases pushes the Tribunal into a system that more closely resembles an inquisitorial system, where all parties work together to come to something close to "the truth", and a court may intervene to adduce missing facts for itself. This is not necessarily a bad thing and it is closer to how asylum cases are decided in countries such as France and Canada, but a serious culture change will be required by all parties if such an approach is to work properly in the UK.
The problem of the Tribunal coming to generalised findings in a specific case can be shown by looking at the events surrounding the Tribunal's Country Guidance determinations relating to Burma. In 2009 in the case of TL, the Tribunal found that Burmese nationals who had attended demonstrations against the Burmese government while in the UK but who were nevertheless not genuine political activists were not at risk on return to Burma. Rather, the Tribunal believed that the Burmese authorities would be able to distinguish such 'hangers-on' from genuine political opponents. In January 2013 in the case of KS, the Court of Appeal found this to be incorrect. It was held that the Tribunal's findings in KS were totally out of tune with the rest of the evidence on Burma, which pointed to the conclusion that authoritarian regimes such as Burma tend not to have rational systems in place to make such distinctions. The reason that it had taken almost four years to challenge this was because the Appellant in the original Country Guidance case had won her case (on the grounds that she was found to be a genuine activist). This left no need for anyone to appeal the decision and so the Tribunal's findings on the danger to non-genuine activists went unchallenged, leaving that Country Guidance case to be rigidly applied to hundreds of asylum seekers. This line of cases shows how dangerous it can be to have a court make general findings when the parties are presenting evidence solely on their own cases.
All in all, it looks like Country Guidance cases are here to stay. Indeed, in NA v United Kingdom, the European Court of Human Rights in Strasbourg discussed the British Country Guidance system in relation to Sri Lanka and found it to be generally acceptable subject to important provisos. I will leave the details of these provisos to another time, but it seems clear that if Country Guidance cases are to improve justice in asylum law, lawyers and decision makers need to be mindful of their pitfalls and take steps to minimise the problems they pose.