Departing from Country Guidance

In a recent determination, the Upper Tribunal has clarified that it is not always necessary to follow Country Guidance cases; in fact it can be an error of law to follow such guidance where “the situation in the country concerned has changed substantially since the guidance was issued” (para 8). The case is FA (Libya: art 15(c) (CG) [2016] UKUT 413 and replaces the country guidance issued in AT and Others Libya CG [2014] UKUT 318 in relation to the assessment of whether there is a risk of indiscriminate violence. Whether this is the case is to be decided on the basis of the individual evidence in the case, until the Upper Tribunal issues further Country Guidance.

As noted at paragraph 7 of the determination:

“The intention behind the Country Guidance System is that frequently-arising issues should be capable of being determined once only. The designation of a published judgment as Country Guidance therefore has the effect of removing the issues in question from the normal process of determination by evidence in an adversarial process. Consistency is assured, and time and resources are saved. Unless and until the guidance is set aside, the decision stands as the Tribunal's approach to that issue.”

However, in the case of FA, the appellant had produced a wealth of evidence suggesting that the situation in Libya had changed since November 2013, when AT and Others was heard, and that this guidance was now out of date. At first instance, the First-tier Tribunal “recognised that there had been many changes in the situation in Libya since November 2013” (para 9), however followed the Country Guidance in AT and Others as the appellant had not produced a direct comparison of the material before the Tribunal in that case and the evidence adduced in the present case and analysed the differences. The Upper Tribunal was very critical of this approach and concluded that:

“in the circumstances of this case deciding to follow the existing guidance in the face of a mass of new material simply because there was no comparison or analysis was in our judgment an error of law(para 10).

This case serves as an important reminder that, even if the Country Guidance is against you, all is not lost. Depending on the length of time that has elapsed since the last Country Guidance case and the situation in the country of origin, it may be possible to demonstrate that the Country Guidance should be departed from.