BH (Policies/Information: Sos's Duties) Iraq
| Jurisdiction | UK Non-devolved |
| Judge | Lane J,Mr Ockelton,Lord Matthews |
| Judgment Date | 14 May 2020 |
| Neutral Citation | [2020] UKUT 189 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2020] UKUT 189 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President), Mr Ockelton (Vice President) and Lord Matthews
Mr K Forrest instructed by Latta & Co Solicitors, for the Claimant;
Mr G Mclver instructed by the Government Legal Department, for the Secretary of State.
AA (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 12
AAH (Iraqi Kurds – internal relocation) Iraq CG [2018] UKUT 212 (IAC)
CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59 (IAC)
GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC)
Mandalia v Secretary of State for the Home Department [2015] UKSC 59; [2015] 1 WLR 4546; [2016] 4 All ER 189; [2016] Imm AR 180; [2016] INLR 184
Nimo (appeals: duty of disclosure) [2020] UKUT 88 (IAC); [2020] Imm AR 894
R v Secretary of State for the Home Department and Another ex parte Abdi and Gawe [1996] UKHL 9; [1996] 1 WLR 298; [1996] 1 All ER 641; [1996] Imm AR 288
R v Secretary of State for the Home Department ex parte Kerrouche [1997] EWCA Civ 2263; [1997] Imm AR 610; [1998] INLR 88
UB (Sri Lanka) v Secretary of State for the Home Department [2017] EWCA Civ 85; [2017] Imm AR 1182
European Convention on Human Rights, Article 8
Immigration Rule HC 395 (as amended), paragraph 276ADE(1)(vi)
Nationality, Immigration and Asylum Act 2002, section 107(3)(a)
Procedure and process — Home Office procedures Secretary of State's duties — obligation to bring relevant policy to Tribunal's attention — distinction between information and policy — UB (Sri Lanka)[2017] EWCA Civ 85 explained — countiy of origin documents
The Claimant, a citizen of Iraq, arrived in the United Kingdom in November 2007 and applied for asylum. The Secretary of State for the Home Department refused the application. The Claimant's appeal to the Asylum and Immigration Tribunal was unsuccessful. Over the intervening years, the Claimant made a number of further submissions. The Secretary of State treated submissions made in June 2018 as a fresh claim, the refusal of which led to the Claimant's appeal being heard by the First-tier Tribunal (“FtT”) in Glasgow in September 2018. The FtT had regard to the country guidance decision of the Upper Tribunal (“UT”) in AAH (Iraqi Kurds — internal relocation) Iraq CG [2018] UKUT 212 (IAC), promulgated in June 2018, and concluded that the Claimant could safely return to Baghdad and thereafter proceed onward to the Kurdish Zone in Northern Iraq (“IKR”). The FtT dismissed the appeal and refused permission to appeal to the UT.
On application to the UT for permission to appeal, the Claimant submitted that the FtT had erred in failing to consider the most up-to-date information in respect of the IKR which was contained in the Secretary of State's Country Policy and Information Note Iraq: Security and humanitarian situation Version 5.0 November 2018 (“the 2018 CPIN”). The UT refused permission noting that the FtT could not be criticised for failing to make findings on evidence that was not before it.
The Claimant petitioned the Court of Session for judicial review of the refusal by the UT to grant permission to appeal. He submitted that the Secretary of State had not complied with her duty to draw a relevant policy to the attention of the FtT, as required by UB (Sri Lanka) v Secretary of State for the Home Department[2017] EWCA Civ 85. The UT had erred in placing the onus on the Claimant to produce the relevant document and in failing to ensure he had a fair hearing. The Court of Session reduced the UT's decision to refuse permission on the basis it was arguable that the FtT followed an unfair procedure. Following the reduction of the decision, the UT granted permission to appeal.
The Claimant submitted that, because the 2018 CPIN had the word “policy” in its title, every piece of factual information, drawn from various sources, contained in the “Country Information” part of the document, was material which the Secretary of State had a duty to draw to the attention of the FtT, before it completed the written decision; and that, because that had not happened, the FtT committed procedural unfairness, such as to vitiate its decision. He submitted that UB (Sri Lanka) should be extended to cover the position where a policy of the Secretary of State emerged after the hearing but before the decision of the FtT had been promulgated.
Held, dismissing the appeal:
(1) The Secretary of State had a duty to reach decisions that were in accordance with her policies in the immigration field. Where there appeared to be a policy that was not otherwise apparent and which might throw doubt on the Secretary of State's case before the Tribunal, she was under a duty to make a relevant policy known to the Tribunal, whether or not the policy was published and so available in the public domain: UB (Sri Lanka); AA (Afghanistan) v Secretary of State for the Home Department[2007] EWCA Civ 12 and Mandalia v Secretary of State for the Home Department[2015] UKSC 59 applied. Despite their expertise, judges in the Immigration and Asylum Chambers could not reasonably be expected to possess comprehensive knowledge of each and every policy of the Secretary of State in the immigration field. In protection appeals, and probably in other kinds of immigration appeals, the Secretary of State had a duty not to mislead, which required her to draw attention to documents under her control or in the possession of another government department, which were not in the public domain, and which she knew or ought to have known undermined or qualified her case: R v Secretary of State for the Home Department ex parte Kerrouche[1997] Imm AR 610 applied (paras 41 – 52 and 67).
(2) There was a clear distinction between information and policy: the fact that country information was contained in a country of origin (“COl”) document published by the Secretary of State did not, without more, make that information subject to the Secretary of State's duty to make a relevant policy known to the Tribunal: UB (Sri Lanka) explained. An acceptance of the Claimant's interpretation of UB (Sri Lanka) would render it difficult or, indeed, impossible for the FtT to decide protection appeals. The mere fact that the Secretary of State's COl information officials were involved in the ongoing exercise of compiling country information from external sources would, according to the Claimant, mean that no judge could safely write a decision, based upon the evidence put before him or her, because further information about that country might have been acquired by the Secretary of State just before or even after that hearing. Onward challenges would routinely involve belated factual examinations of the material, in order to determine whether any of it might have made a difference to the outcome of the FtT's decision (paras 40, 53 – 61 and 67).
(3) The country information part of the 2018 CPIN was an overview, taken from third party sources whose reporting dates were given in footnotes. The Claimant's grounds disclosed nothing of any material significance. They involved the laborious accretion of statistical details, in an attempt to build a picture of the IKR that was at variance with what the FtT found. Not only was the Claimant's attempt conceptually incapable of demonstrating any legal error on the part of the FtT; it was, on its own terms, inaccurate. The assertion that the population of the IKR had grown by 30% over a period of less than two years was, in fact, not borne out by the evidence. An examination of the remainder of the grounds exposed similar issues. For example, the evidence showed that the situation regarding the population of internally displaced persons in Iraq had, in fact, markedly improved from December 2016 to February 2018. Accordingly, even if the above interpretation of UB (Sri Lanka) was incorrect, the Claimant failed in any event. The decision of the FtT did not contain an error on a point of law (paras 62 – 67).
Mr Justice Lane:
[1] The appellant, born in 1977, is a citizen of Iraq. He says he left that country in November 2007, travelling to Turkey, before moving on to the United Kingdom, where he arrived on 26 November 2007 and claimed asylum the same day. The respondent refused that claim and the appellant unsuccessfully appealed to an immigration judge of the Asylum and Immigration Tribunal. Over the intervening years, the appellant made a number of further submissions, with the aim of obtaining a fresh right of appeal, in the event of their rejection by the respondent. Eventually, the submissions made in June 2018 were treated by the respondent as a fresh claim, the refusal of which led to the appellant's appeal being heard by First-tier Tribunal Judge P A Grant-Hutchison in Glasgow on 12 September 2018.
[2] Despite the fact that the Immigration Judge who dismissed the appellant's original appeal in 2009 had doubts as to whether he originated from Mosul, the present First-tier Tribunal Judge appears, like the respondent, to have accepted that the appellant's home area was Mosul. Since it was common ground that, at the relevant time, the appellant could not be expected to return to Mosul, the focus of attention was on whether the appellant, as a Kurd, could relocate to the Kurdish Zone in Northern Iraq (IKR); alternatively, whether he could relocate to Baghdad.
[3] The First-tier Tribunal Judge had regard (as he was required to do) to the Upper Tribunal's country guidance in AAH (Iraqi Kurds – internal relocation) Iraq (CG) [2018] UKUT 00212, promulgated on 26 June 2018. At paragraph 13 of his decision, the First-tier Tribunal Judge recorded the respondent's Presenting Officer as telling him that, contrary to the position in AAH, there...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2020-05-14, [2020] UKUT 189 (IAC) (BH (policies/information: SoS's duties))
...ar-SA } a:link { color: #0000ff } Upper Tribunal (Immigration and Asylum Chamber) BH (policies/information: SoS’s duties) Iraq [2020] UKUT 00189 (IAC) THE IMMIGRATION ACTS Heard at Parliament House, Edinburgh Decision & Reasons Promulgated On 9 March 2020 ………………………………… Before MR JUSTICE LAN......
-
Upper Tribunal (Immigration and asylum chamber), 2020-07-27, EA/08267/2016
...As to the application of the last point, see the recent Presidential panel decision in BH (policies/information: SoS’s duties) Iraq [2020] UKUT 00189 (IAC). The requirement that the First-tier Tribunal deal with cases fairly and justly is enshrined as an overriding objective by rule 2 of th......
-
Upper Tribunal (Immigration and asylum chamber), 2021-06-08, PA/02081/2020
...of State to highlight the policy encapsulated in passage to the judge, pursuant to BH (policies/information: SoS's duties) Iraq [2020] UKUT 189 (IAC), headnote (a). By not doing so and by arguing that the appellant could obtain a CSID from within the UK, the Secretary of State adopted an ap......
-
Upper Tribunal (Immigration and asylum chamber), 2022-10-25, PA/12147/2019
...Lankan authorities would be aware of his involvement with the TGTE. 53. In BH (Policy/Information: Secretary of State’s Duties) Iraq [2020] UKUT 00189 (IAC), a UT Panel chaired by the President conducted an extensive examination of UB (Sri Lanka) and said at “The fact that this information ......
-
Country Policy And Information Notes (CPINs) In Asylum And Human Rights Appeals
...duty to follow policy absent good reason to do otherwise). As made clear in the case of BH (policies/information: SoS's duties) Iraq [2020] UKUT 00189 (IAC), country information produced and relied upon by the Home Office is not necessarily policy absent content that suggests that it The co......