Sep 22 2008

Country Guidance on Iraq: an overturned decision of the AIT

The Asylum & Immigration Tribunal website lists all current, or supposedly current, country guidance cases. These are, in effect, binding precedents on the facts, in terms of paragraph 18 of the Tribunal’s Practice Directions: ‘unless it has been expressly superseded or replaced by any later “CG” determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is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‘. At the time of writing, no less than 26 such cases are listed as current in relation to Iraq. An important one is SM & Others (Kurds – Protection – Relocation) Iraq CG [2005] UKIAT 00111 (note the initials; the Tribunal rightly anonymises appellants). This deals with the general question of whether Kurds from the KRG can safely relocate themselves to other parts of Iraq, and is likely to be cited against any claim that they cannot.

The problem with this case as an authority is that it was overturned on appeal by the Court of Session last year: Ibrahim v Home Secretary, 2007 CSIH 29; the Court held that “In reaching their view that the appellant could safely return to Northern Iraq in the face of competing submissions on that matter, it would appear that the Tribunal has completely failed to take into account the appellant’s main argument in support of his contention that it would not be safe for him to do so“. Note the name, rather than initials. The decision of the Tribunal was set aside and the case sent for a further hearing of the Tribunal, which not surprisingly directed that the same general issue of relocation in Iraq for Kurds should be addressed for country guidance purposes. That hearing took place in Glasgow on 7 May, when I represented the appellant on instructions from Euan Mackay of Livingstone Brown. The case went to avizandum and no decision has yet been issued.

I was surprised to hear, at that hearing, the original overturned decision of the Tribunal being cited as authority against me. The Home Office representative had, excusably, not made the connection; after all, the names under which the original Tribunal decision, and the Court of Session appeal, were reported were different. The next week, counsel in another ongoing Iraq case in the Tribunal told me he had had the same experience.

I had intended to delay this note until the final decision in this case was issued, but as it is still awaited and Iraq country guidance is a hot topic I write this to draw to the attention of anyone acting in a case in which SM is cited as an authority that, albeit it remains on the AIT website, it was in fact successfully appealed. It is hard to see how a Tribunal decision which has been overturned as wrong in law can still constitute good authority, but I leave that argument to my readers.

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2 comments published to “Country Guidance on Iraq: an overturned decision of the AIT”

  1. […] the Court of Appeal (or Sessions) but remain designated as country guidance. See this interesting piece by Jonathan Mitchell QC on the […]

  2. […] the Court of Appeal (or Sessions) but remain designated as country guidance. See this interesting piece by Jonathan Mitchell QC on the […]

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