SG (Iraq) v Secretary of State for the Home Department

A Country Guidance determination remains authoritative unless and until it is set aside on appeal or replaced by later Country Guidance. A pending application or appeal does not itself displace it.

Civil Procedure Rules rule 52.7 does not automatically stay the factual or legal findings underlying a Country Guidance determination. Statutory protection against removal while an appeal is pending applies to the person whose own appeal remains pending. A stay for another person depends on the evidence. It will ordinarily require substantial doubt about findings based on evidence already considered, or clear and coherent new evidence that those findings were erroneous.

SG and OR, Iraqi nationals whose asylum or deportation appeals had been exhausted, challenged proposed removal to Iraq. Their challenges depended materially on the Country Guidance determination in HM and Others (Article 15)(c) Iraq CG [2010] UKUT 331 (IAC), which was then under appeal.

Langstaff J refused SG permission to seek judicial review and a stay of removal: [2011] EWHC 2428 (Admin). Irwin J refused OR permission in respect of removal: [2011] EWHC 3818 (Admin). John Bowers QC, sitting as a deputy High Court judge, refused OR permission to challenge detention pending removal: [2012] EWHC 828 (Admin).

The central issue was whether a pending challenge to Country Guidance automatically stayed its operation for non-parties, or otherwise required a stay of removal.

1. The appeals were dismissed. OR was granted permission to appeal against Irwin J’s removal decision, but his removal and detention appeals failed. The lower-court decisions had to be assessed without hindsight from the later quashing of HM and Others (Article 15)(c) Iraq CG [2010] UKUT 331 (IAC).
2. A Country Guidance determination serves to provide a reliable and consistent assessment of country conditions where individual investigations would be impracticable. It must be followed by tribunal decision-makers unless very strong grounds, supported by cogent evidence, justify departure. Where a judicial-review claimant relies on a fresh claim, the Administrative Court and Court of Appeal must also treat applicable Country Guidance as authoritative, because the fresh claim must have a realistic prospect before a tribunal. The determination remains authoritative unless set aside or replaced.
3. Civil Procedure Rules rule 52.7 concerns the operative order or decision appealed from. It does not stay findings of fact or law in the reasons for a Country Guidance determination. Section 78 of the Nationality, Immigration and Asylum Act 2002 protects only the person whose own statutory appeal is pending. It does not give an automatic stay to non-parties whose appeals have been finally determined.
4. The grant of permission to appeal Country Guidance does not itself justify a stay. The court must assess the determination, the reasons for permission, and the claimant’s evidence. Where the tribunal considered the evidence, a stay will rarely be appropriate unless those reasons cast substantial doubt on the reliability of its findings. New or subsequent evidence must amount to a clear and coherent body of evidence that the findings were erroneous.
5. At the relevant dates, the judges were entitled to treat HM as authoritative. No sufficient evidence undermined it. SG and OR therefore had no realistic prospect in their removal challenges, and OR’s prospective removal within a reasonable time also defeated his detention challenge. Maurice Kay LJ additionally indicated that future Country Guidance permission applications should be dealt with expeditiously and, where possible, with the scope of any substantive appeal made clear.

• Court of Appeal (Civil Division): dismissed SG’s appeal and OR’s removal and detention appeals, while granting OR permission to appeal against Irwin J’s decision.
• High Court, Administrative Court: Langstaff J refused SG permission to seek judicial review and a stay of removal: [2011] EWHC 2428 (Admin).
• High Court, Administrative Court: Irwin J refused OR permission to seek judicial review of removal: [2011] EWHC 3818 (Admin).
• High Court, Administrative Court: John Bowers QC, sitting as a deputy judge, refused OR permission to challenge detention pending removal: [2012] EWHC 828 (Admin).