HM (Iraq) & Anor v Secretary of State for the Home Department

A country guidance determination has special and wide-ranging authority. The tribunal should therefore secure proper argument on the relevant law, evidence and country materials before issuing such guidance.

There is no absolute rule requiring a proper contradictor in every country guidance case. The tribunal retains a discretion to proceed. Where appellants unexpectedly lose representation, however, it must consider practicable alternatives, including inviting an intervening organisation to participate through counsel or seeking an advocate to the court. It must then weigh the importance of proper argument against delay and wasted resources.

A failure to consider those alternatives is a material flaw where proper argument might realistically have produced a different assessment or conclusion.

The Upper Tribunal grouped four Iraqi appellants’ cases to give authoritative country guidance on the application of Article 15(c) of Council Directive 2004/83/EC to conditions in Iraq. Shortly before the five-day hearing, all four appellants lost legal representation. UNHCR had filed written submissions but did not participate through counsel. The tribunal refused applications to withdraw three appeals, proceeded in the appellants’ absence or without their effective participation, and dismissed all four appeals in HM & Others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC).

HM and RM appealed on procedural and substantive grounds. The central procedural question was whether the tribunal had lawfully exercised its discretion to proceed with an authoritative country guidance determination without representation for the appellants or another person providing effective opposing argument.

1. The appeal was allowed unanimously. The Upper Tribunal’s determination was quashed and the cases were remitted for rehearing as country guidance cases.

2. A country guidance determination has special status. It is authoritative in later appeals involving the same issue and the same or similar evidence unless superseded, replaced or inconsistent with binding authority. Proper argument is therefore especially important. It includes legal submissions, identification of relevant materials and submissions about their effect, so that the guidance rests on a full and informed analysis.

3. There is no absolute principle that every country guidance determination must have a proper contradictor. The authorities concerning declaratory relief establish a strong general concern that important and wide-ranging rulings should not be made without proper argument, while permitting exceptions through the exercise of judicial discretion.

4. The Upper Tribunal possessed broad discretions under rules 17 and 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008, as well as a general discretion to proceed without legal representation. The Court of Appeal acknowledged the difficult position created by the appellants’ late loss of representation and the tribunal’s reasonable concerns about delay, resources and the many pending cases.

5. The exercise of discretion was nevertheless seriously flawed. Once representation for the appellants could not be obtained, the tribunal was required to consider alternative means of securing proper argument. It could have invited UNHCR to participate through a legal representative in the changed circumstances. It could also have asked the Attorney General to consider appointing an advocate to the court. Such an advocate could test the Secretary of State’s position and draw attention to relevant background materials.

6. The tribunal did not consider either possibility and therefore did not weigh the importance of proper argument against the resulting delay and wasted resources. Its treatment of the overriding objective consequently omitted a highly material consideration.

7. The error required the determination to be quashed because there was a real possibility that proper argument could have produced a different factual assessment or conclusion. The substantive challenges concerning Article 15(c), internal relocation and the treatment of returnees were left open.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The country guidance determination was quashed and the cases were remitted to the Upper Tribunal for rehearing as country guidance cases: [2011] EWCA Civ 1536.

2. Upper Tribunal (Immigration and Asylum Chamber): The tribunal proceeded without effective representation for the appellants and dismissed all four appeals in HM & Others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC).