KK v The Secretary of State for the Home Department

Country guidance is authoritative in subsequent appeals concerning the same issue and materially similar evidence. It should be followed unless later material evidence shows that conditions in the country have changed.

The country guidance in GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) gives a definitive, rather than illustrative, list of persons at real risk on return to Sri Lanka. A former LTTE connection creates risk only where it indicates a present threat as identified by that guidance. The Tribunal rejected an argument that the guidance was irrational or inconsistent with evidence accepted in the country-guidance decision.

The appellant, a Sri Lankan Tamil, claimed asylum after entering the United Kingdom as a student. His appeal was originally dismissed by an Immigration Judge. The Upper Tribunal later found an error of law but dismissed the appeal on reconsideration.

The Court of Appeal allowed a further appeal by consent, set aside that Upper Tribunal decision and remitted the case. The parties agreed that the Immigration Judge’s findings of fact would stand. The remitted issue was the applicability of country guidance to those findings.

Before the remitted hearing, the Tribunal promulgated GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC). The central issues were whether that guidance had to be followed and whether the appellant’s past LTTE membership and detentions placed him at real risk on return.

1. Appeal dismissed. The Tribunal held that the current country guidance in GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) was authoritative and applicable.

2. The Tribunal treated the risk categories stated in paragraph 356(7) of GJ as definitive. They were not merely examples of persons who might be at risk. The appellant did not fall within any of them. His appeal could therefore succeed only if there were a proper reason not to follow that country guidance.

3. There was no such reason. The Tribunal rejected the submission that GJ was irrational because its conclusions were said to be inconsistent with evidence from UNHCR and Professor Gunaratna. The country-guidance panel had considered a substantial body of evidence in the round. It had not accepted all of Professor Gunaratna’s evidence, nor had it treated the UNHCR guidance as a definitive account of present risk.

4. Country guidance should continue to be followed unless material evidence shows that conditions in Sri Lanka have changed. The Tribunal held that this approach accorded with the Presidential Practice Direction and the need to treat like cases alike.

5. On the preserved findings, the Tribunal was not satisfied that there was a real likelihood of any official record of the appellant’s brief LTTE membership. He had not been charged, brought before a court, formally indicted, or required to act after release. He had also been permitted to leave using his own passport after it had been considered by the CID. In any event, his past history did not indicate a present risk within the GJ categories. The appeal was dismissed.

• Upper Tribunal (Immigration and Asylum Chamber): On remittal from the Court of Appeal, the Tribunal applied the new country guidance and dismissed the appeal.

• Court of Appeal: By consent, allowed the appeal from the earlier Upper Tribunal determination, set that determination aside, and remitted the matter for reconsideration. The Immigration Judge’s findings of fact were to remain undisturbed.

• Upper Tribunal (Immigration and Asylum Chamber): An earlier determination found an error of law in the Immigration Judge’s approach to prior country guidance but dismissed the appeal on reconsideration.

• First-tier Tribunal: Immigration Judge Lobo dismissed the appellant’s appeal on all grounds.