MD (Ivory Coast) v Secretary of State for the Home Department

In country-guidance appeals, diplomatic reports and letters are relevant country information, not automatically expert evidence or evidence entitled to special weight. Their weight is for the fact-finding tribunal to assess in the circumstances of the particular case. The tribunal should consider provenance, independence, reliability, objectivity, corroboration and the material’s direct relevance to the alleged risk, consistently with NA v the United Kingdom and TK (Tamils – LP updated) Sri Lanka CG. A tribunal may rely on an unidentified diplomatic source where the circumstances justify it, while accounting for the absence of cross-examination and undisclosed sources. It must assess the evidence as a whole and need not accept selected passages in isolation. The appeal was dismissed because the evidence did not establish a real risk at checkpoints within the proposed place of relocation, and the Article 8 assessment was lawful.

The appellant, an Ivorian national, appealed against the Upper Tribunal’s country-guidance determination dismissing her asylum, humanitarian-protection and human-rights appeal against removal directions. The Upper Tribunal accepted her account of forced female genital mutilation, customary marriage, pregnancy by another man and flight to the United Kingdom. It found that return to her former home area, Abidjan, would not expose her to a real risk of persecution or serious harm and that removal, including that of her young son, would be proportionate under Article 8.

Before the Court of Appeal, the appellant alleged factual error, excessive reliance on an FCO political officer’s letter concerning checkpoints, and inadequate consideration of Article 8. The central issues were whether the country material established a real risk at checkpoints in Abidjan, whether the letter could properly receive significant weight despite its anonymous authorship and sources, and whether the Article 8 assessment was legally sufficient.

1. Appeal dismissed. The Upper Tribunal had been entitled to find that the appellant could safely return to Abidjan. The background reports relied on did not establish the prevalence or location of checkpoints within Abidjan, or a real risk of sexual violence to this appellant there. References to checkpoints elsewhere in the Ivory Coast did not answer that geographically specific question.
2. The FCO political officer’s letter was properly treated as country information rather than as expert evidence. An unidentified author and undisclosed sources affected weight, but did not make the material incapable of consideration. The tribunal could take account of the officer’s two years’ experience, her own observations, the provenance of the information and the Embassy’s good-faith transmission of it. The weight of the letter was a matter of judgment for the tribunal.
3. The Court applied the guidance in NA v the United Kingdom [2008] ECHR 616 and TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049: diplomatic, governmental, United Nations and reputable non-governmental material must be assessed on its merits, including independence, reliability, objectivity, methodology, consistency and corroboration. The earlier formulation in LP (LTTE area – Tamils – Colombo – risk? Sri Lanka) [2007] UKAIT 00076 that such letters must receive significant weight and should have equal value to a well-informed country expert was too prescriptive. The tribunal below had not, however, applied that error.
4. The Article 8 challenge failed. The tribunal considered the appellant’s and her son’s private life, had regard to the son’s interests and was entitled to regard a four-year-old child as adaptable. Since mother and child would return together to their home area, and the tribunal rejected the claim of destitution and inability to work, removal was proportionate. Section 55 of the Borders, Citizenship and Immigration Act 2009 was not in force during the hearing and had not been raised for reconsideration, but the tribunal had in substance considered the family’s interests.

Lord Justices Toulson and Pill agreed with Sullivan LJ. The order was: appeal dismissed.

• Court of Appeal (Civil Division) — The appeal from the Upper Tribunal’s country-guidance determination was dismissed: [2011] EWCA Civ 989.
• Upper Tribunal (Immigration and Asylum Chamber) — The appellant’s appeal on asylum, humanitarian-protection and human-rights grounds was dismissed in a determination promulgated on 5 July 2010: [2010] UKUT 00215 (IAC).
• Immigration and Asylum Tribunal — The first immigration judge’s determination was set aside and the matter proceeded to a second-stage reconsideration.
• Immigration Judge — The appellant’s appeal was dismissed on 12 March 2007, on the basis that there was sufficient protection in Odienne and reasonable internal relocation to Abidjan.