Om (Aa(1))
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge Perkins |
| Judgment Date | 03 November 2006 |
| Neutral Citation | [2006] UKAIT 77 |
| Court | Asylum and Immigration Tribunal |
| Date | 03 November 2006 |
[2006] UKAIT 77
Asylum and Immigration Tribunal
Senior Immigration Judge Mather Senior Immigration Judge Perkins
For the Appellant: Ms R Dassa, Counsel instructed by Chipatiso & Co. Solicitors
For the Respondent: Mr M Blundell, Home Office Presenting Officer
OM (AA(1) wrong in law) Zimbabwe CG
Country guidance stands until it is replaced or found to be wrong in law. It will not be appropriate to grant an adjournment on the grounds that a party is seeking to challenge a relevant country guidance case in the higher courts.
Where a country guidance case is replaced because of changed country conditions or because further evidence has emerged, that will not mean that it was an error of law for an immigration judge to have followed it up to that point. Where, however, a country guidance case is found to be legally flawed the reasons for so finding will have existed both before and after its notification. It is a determination inconsistent with other authority that is binding on the Tribunal (see AIT Practice Directions 18.2) In those circumstances, which will be encountered only rarely, any determination of an appeal decided substantially on the basis of that country guidance will be legally flawed also and cannot stand.
AA (Involuntary returns to Zimbabwe) Zimbabwe [2005] UKAIT 00144 CG (“AA(1)”) was found by the Court of Appeal in AA & LK [2006] EWCA Civ 401 to be legally flawed in its approach to the assessment of the evidence. Accordingly it must now be seen as never having been correct country guidance.
Although in AA & LK there was no challenge by the respondent to the Article 3 assessment reached in AA(1) , that assessment was based on the same body of evidence considered in respect of the asylum grounds of appeal. AA(1)'s assessment of that evidence having beenfound legally flawed, it was no longer possible to support a finding of an Article 3 violation by reference to that assessment.
The appellant is a citizen of Zimbabwe. He is now in his early twenties. He appeals a decision of the respondent on 1March 2006 to refuse him asylum and a decision on 23 March 2006 to remove him as an illegal immigrant. It is the appellant's case that he is a refugee and that removing him is contrary to his protected human rights. His appeal was dismissed by Immigration Judge Timpson in a determination promulgated on, or about, 22 May 2006. Reconsideration was ordered by Senior Immigration Judge Warr in the following terms:
“The appellant was not found to be a credible witness.
The Tribunal is to give further consideration to returnability issues in the light of AA and LK [2006] EWCA Civ 401. The grounds of application are arguable.”
None of the grounds criticise the Immigration Judge's adverse credibility finding.
On 12 th April 2006 the Court of Appeal held in AA & LK v SSHD [2006] EWCA Civ 401 that the Tribunal's decision in AA (Involuntary returns to Zimbabwe) Zimbabwe [2005] UKAIT 00144 CG (“AA(1)”) was wrongly decided and remitted it to be reheard by the Tribunal. Over five days commencing on 3 rd July 2006 the Tribunal duly reheard the appeal of the appellant in AA(1). The Tribunal received and considered a good deal of further evidence. By its decision in AA (Risk for involuntary returnees) Zimbabwe CG [2006] UKAIT 00061 (“AA(2)”) the Tribunal held, inter alia, that a failed asylum seeker returned involuntarily to Zimbabwe does not face on return a real risk of being subjected to persecution or ill-treatment contrary to article on that account alone. In so doing it reaffirmed the decision in SM and Others (MDC — Internal Flight — Risk Categories) Zimbabwe CG [2005] UKAIT 00100.
The Tribunal has refused an application for permission to appeal to the Court of Appeal against AA(2). The application has been renewed to the Court of Appeal.
The appellant asked that we adjourn the hearing of this appeal lest anything of significance to it should be decided by the Court of Appeal if it gave permission to appeal the decision in AA(2).
We reminded ourselves that the overriding objective of the Tribunal, set out in paragraph 4 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 is stated as follows:
“The overriding objective of these Rules is to secure the proceedings before the tribunal are handled as fairly, quickly and efficiently as possible; and, where appropriate, that members of the tribunal have responsibility for ensuring this, in the interests of the parties to the proceedings and in the wider public interest.”
Our power to adjourn the hearing of an appeal is very limited. Rule 21(2) of the Rules demands that:
“The Tribunal must not adjourn a hearing of an appeal on the application of a party, unless satisfied that the appeal cannot otherwise be justly determined.”
We refused this application for an adjournment. We must apply the law, including Tribunal country guidance, as it is, not as it might be on some future occasion that cannot be determined. If there ever are circumstances where it is necessary for the just disposal of an appeal to await a decision of the Court of Appeal, they are not present here. The fact that a party to an appeal that has resulted in a country guidance decision is seeking permission to appeal does not justify an adjournment of another appeal in which the country guidance decision is relevant to the issues.
It will be apparent from the above that Immigration Judge Timson promulgated his decision after the Court of Appeal had given judgement in AA and LK but before the Tribunal had given its determination in AA(2). Accordingly this reconsideration is not concerned with the application of AA(2).
In AA and LK the Court of Appeal overturned the decision in AA(1) and the Immigration Judge should have asked himself what relevant country guidance there remained for him to consider.
The requirement to follow and apply country guidance cases was made clear recently in HGMO (Relocation to Khartoum) Sudan CG [2006] UKAIT 00062. At paragraphs 141 and 142 the Tribunal said this:
“Country Guidance cases
141 As the concept of Country Guidance cases was mentioned in the opinions in Januzi, (see esp. paragraph 50 (Lord Hope)), it is necessary to remind ourselves of the legal basis underlying that concept. Until the advent of the Asylum and Immigration Tribunal, a case styled by the Immigration Appeal Tribunal as Country Guidance carried persuasive force but had no statutory authority. Since 4 April 2005, however, the position has changed. On that day, paragraph 22(1) of Schedule 2 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 inserted into section 107 (practice directions) of the Nationality, Immigration and Asylum Act 2002 a new subsection (3), in the following terms:–
“(3) A practice...
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