Rasoul, R (on the application of) v Secretary of State for the Home Department

A country guidance determination is not a legal precedent, but it is an important and generally authoritative starting point where the same or similar evidence is relied upon. Departure requires a clear and coherent body of evidence, particularly evidence arising after the guidance was given. The grant of permission to appeal a country guidance determination does not, by itself, suspend its effect or establish that it was wrongly decided. Pending appeal, decision-makers and courts must apply the law as it stands, subject to compelling evidence justifying a different approach.

The claimant, an Iraqi Kurd subject to a deportation order, challenged the lawfulness of his proposed removal to Iraq via Baghdad. His principal argument was that removal exposed him to a real risk of inhuman or degrading treatment. The challenge depended on whether the court should depart from the country guidance determination in HM and Others [2010] UKUT 331 (IAC), which was under appeal.

The claimant also raised issues concerning section 4 accommodation and bail. The court considered the effect of the country guidance system, the pending appeal in HM and Others, and more recent evidence concerning returns to Iraq.

1. Permission on removal refused. The court held that it could not reasonably be said to be unlawful for the Secretary of State to decide to return the claimant to Iraq. The renewed application for permission was therefore refused.
2. Country guidance determinations are distinct from starred determinations and do not constitute legal precedent. They are nevertheless an important discipline for subsequent hearings. Where the same or similar evidence is relied upon, they provide an authoritative and generally reliable starting point, helping to avoid duplication, repetition and inconsistency. This approach was consistent with the guidance in section 12.2 of the Senior President’s Practice Directions and the discussion in S and Others v Secretary of State for the Home Department [2002] EWCA Civ 539.
3. A pending appeal does not deprive a country guidance determination of its present force. The grant of permission to appeal may arise for procedural or other reasons and does not establish that the determination is wrong. The court should apply the law as it currently stands unless there is a clear and coherent body of evidence demonstrating that the guidance is erroneous. Evidence arising after the country guidance determination is particularly relevant, although the procedural difficulties surrounding HM and Others had been known to the Tribunal when it designated the decision as country guidance.
4. The material relied upon did not materially alter the evidential position considered in HM and Others. The court therefore treated that determination as a strong and continuing guide and declined to depart from it.
5. The section 4 accommodation and consequential bail issues were adjourned rather than finally determined. The Secretary of State was required, within 14 days and without extension, to provide a witness statement explaining the steps taken to secure suitable accommodation, proposed further investigations and timetable, and, if possible, whether removal was intended before the outcome of the appeal in HM and Others. The transcript was released from the usual prohibition on citation.