SM & Ors (Somalia) v Secretary of State for the Home Department

Country guidance may be changed where later evidence shows that material circumstances have evolved in a manner that is evidentially well established and durable. The fact that an important event was known when earlier guidance was given does not prevent reliance on subsequent developments.

In assessing risk under Article 15(c) of the Qualification Directive, tribunals may consider the evidence as a whole, including casualty rates and changes in security conditions, governance and tactics. Advice in the country-guidance reporting process is lawful only where judicial independence and a fair hearing are maintained.

Three linked applications for permission to appeal arose from a country-guidance decision of the Upper Tribunal (Immigration and Asylum Chamber), sent out on 3 October 2014, concerning Somalia and Mogadishu. The Upper Tribunal had altered the earlier guidance in AMM [2011] UKUT 445, finding that the changed conditions no longer created a general Article 15(c) risk for civilians without an adverse profile.

The applicants challenged the evidential basis for that change, alleged procedural unfairness in the reporting arrangements under Guidance Note No 2 of 2011, and raised individual factual complaints. The central issues were whether there was an arguable error of law and whether permission for a further appeal should be granted.

Laws LJ gave the leading judgment and Underhill LJ agreed. The Court refused permission to appeal and dismissed the three linked applications.

1. Change in country guidance. The Upper Tribunal was entitled to depart from the earlier guidance in AMM [2011] UKUT 445 if later evidence established a durable evolution in material conditions. The fact that Al-Shabab’s withdrawal from Mogadishu was already known when AMM was decided did not prevent the Upper Tribunal from assessing the subsequent development of the situation. Its consideration of economic revival, population returns, investment, the functioning central government, changes in Al-Shabab’s tactics and reduced civilian casualties was legitimate.
2. Assessment of risk. The rate of civilian casualties could properly inform the degree of risk under Article 15(c) of the Qualification Directive. The Upper Tribunal did not misuse statistics or misdirect itself by considering casualty rates in the context of the evidence as a whole. Elgafaji [2009] 1 WLR 2100 was not inconsistent with that approach. The argument that the Upper Tribunal had applied the wrong substantial-grounds test was rejected because the relevant passages had to be read in context.
3. Reporting and procedural fairness. Paragraph 11 of Guidance Note No 2 did not inherently compromise judicial independence. Advice from a country convener or reporting committee was unobjectionable provided that it did not involve interested representations, adversarial argument or undisclosed evidence, and that parties could respond to any substantially material new matter. Independence, impartial adjudication and a fair hearing were the governing safeguards. The Upper Tribunal’s explanation could have been fuller, but no legal insufficiency or actual breach was shown. Consolidated-Bathurst Packaging Ltd [1990] 1 SCR 282 and Tremblay [1992] 1 SCR 952 did not require a different conclusion.
4. Individual cases. The remaining complaints concerned factual assessment and merits rather than an arguable legal error sufficient to justify a second appeal.

• Court of Appeal (Civil Division): On 5 June 2015, refused permission to appeal and dismissed the three linked applications: [2015] EWCA Civ 763.
• Upper Tribunal (Immigration and Asylum Chamber): A country-guidance decision concerning Somalia and Mogadishu was sent out on 3 October 2014 and altered the earlier guidance.