The Secretary of State for the Home Department v DSG & Ors

Country guidance is authoritative where a later appeal concerns the same issue and depends on the same or similar evidence. It must ordinarily be followed. A tribunal may nevertheless depart from it where credible fresh evidence, or material developments in the country concerned, show why the existing guidance does not apply.

The departure must rest on very strong grounds supported by cogent evidence. A substantial error in the population figures underlying earlier country guidance, together with reliable expert and country material showing continuing hostility and inadequate protection, may justify departure and a finding of risk on return.

The Secretary of State appealed against a First-tier Tribunal decision allowing the asylum and human-rights appeals of an Afghan Sikh husband, his wife and their children. The family relied on the first appellant's accepted past persecution and on the present risk to Sikhs in Afghanistan.

The First-tier Tribunal departed from the existing country guidance in SL & Others (Afghanistan) CG (Returning Sikhs and Hindus) [2005] UKIAT 00137. It found that the country guidance had materially overstated the number of Sikhs and Hindus remaining in Afghanistan. It also relied on expert and other country evidence indicating serious hostility towards a very small minority.

The central issue was whether the judge had lawfully departed from the extant country guidance.

1. The Secretary of State's appeal was dismissed. The First-tier Tribunal had made no error of law. Its decision allowing the family's appeal under the Refugee Convention and Article 3 was maintained.

2. Under paragraphs 12.2 and 12.4 of the Practice Direction, country guidance is authoritative on the identified issue where the later appeal depends on the same or similar evidence. A failure to follow apparently applicable guidance, or to explain why it does not apply, will generally be an error of law.

3. That duty does not make country guidance immutable. Credible fresh evidence not considered in the guidance case, or later country developments making it outdated, may justify a different conclusion. The Tribunal endorsed the requirement, stated in SG (Iraq) [2012] EWCA Civ 940, for very strong grounds supported by cogent evidence before guidance is not followed.

4. The First-tier Tribunal was entitled to find those grounds established. The figure of about 20,000 Sikhs and Hindus that had materially informed SL was starkly inconsistent with later material indicating a population of about 1,000 to 2,200. The expert evidence and other material showed that attacks and discrimination had to be assessed against that much smaller population, and that the minority lacked meaningful protection.

5. The accepted history of past persecution reinforced the assessment. The brief return to Kabul did not undermine credibility because the first appellant had no lawful alternative destination and remained in hiding. The Tribunal therefore upheld the conclusion that the family faced Convention and Article 3 risk on return. The Article 8 argument was not pursued. An anonymity order was made under Rule 14(1)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State's appeal was dismissed. The First-tier Tribunal's decision allowing the family's Refugee Convention and Article 3 appeals was maintained.
• First-tier Tribunal: Allowed the family's appeals after departing from the country guidance in SL & Others (Afghanistan) CG (Returning Sikhs and Hindus) [2005] UKIAT 00137.