SA (Sri Lanka) v Secretary of State for the Home Department

A change in country guidance is a change in the factual assessment of conditions in the country concerned, not a change in the law. An appellate tribunal does not make an error of law merely because it failed to consider country guidance published after its decision. A later change in country guidance may instead be relevant to further submissions under paragraph 353 of the Immigration Rules.

The appellant, a Sri Lankan Tamil, appealed against the Upper Tribunal’s dismissal of his asylum and humanitarian protection appeal. The First-tier Tribunal had accepted much of his account but found that he could safely relocate to Colombo. The Upper Tribunal re-determined the appeal under the country guidance in TK, which was then applicable, and dismissed it.

After permission for a further appeal had been refused on the papers, the country guidance in GJ was issued. The appellant argued that the Court of Appeal should have regard to that later guidance, particularly its treatment of returnees’ relocation. The central issue was whether the later country guidance could establish an error of law in the Upper Tribunal’s earlier decision.

1. Appeal dismissed. The Upper Tribunal had applied the country guidance then in force, together with the case-specific evidence before it. Its conclusion was open to it on that material.
2. Country guidance decisions are compilations and statements of evidence concerning conditions in the relevant country. They are judicial assessments of the probative value of that evidence and do not exclude other relevant evidence. They are factual summaries which may be updated to reflect material changes on the ground. A change in country guidance is not a change in the law.
3. The Court of Appeal’s jurisdiction under sections 13(1), 14(1) and 14(2) of the Tribunals, Courts and Enforcement Act 2007 depends on an error of law in the decision under appeal. A tribunal may err in law by basing a finding on no evidence, or by reaching an assessment contrary to the only conclusion reasonably available on the admissible evidence. That did not occur here. The later guidance did not show that the Upper Tribunal had misdirected itself, particularly since it was unpublished when the decision was made and might partly concern later conditions.
4. It was unnecessary and inappropriate to express a view on the content or scope of GJ, or on whether it would have affected the earlier decisions. The appellant could make further submissions to the Secretary of State under paragraph 353 of the Immigration Rules, which had to be properly considered when deciding whether there was a fresh claim.

Lord Justice Moses and Lord Justice Laws agreed with Lord Justice Patten.

• Court of Appeal (Civil Division): Appeal dismissed. The court held that the later country guidance did not establish an error of law in the Upper Tribunal’s decision: [2014] EWCA Civ 683 .
• Upper Tribunal (Immigration and Asylum Chamber): Appeal dismissed on 29 January 2013 after reconsideration of the First-tier Tribunal’s findings and risk on return under TK.
• First-tier Tribunal: Appeal dismissed; the Secretary of State’s refusal of asylum and humanitarian protection was upheld.