NA (Libya) v Secretary of State for the Home Department

Country Guidance decisions are not binding precedents, but they are authoritative in later appeals concerning the same issue and similar evidence. A tribunal must follow a clear, apparently applicable decision, or explain why it does not apply. This duty exists even where neither party draws the decision to the tribunal’s attention. A First-tier Tribunal remains seized of an appeal until its determination is promulgated. Guidance promulgated before that point must therefore be considered, even if it became available after the hearing or after the determination was signed. Failure to consider materially inconsistent guidance is an error of law and may require the decision to be set aside and remitted for rehearing.

The appellant, a Libyan national, claimed asylum and related protection on the basis that he would be perceived as loyal to the former Gaddafi regime because he had lived in Khoms and had a family connection to Gaddafi’s second wife. The First-tier Tribunal allowed his appeal.

After the hearing and signing of that determination, but before it was promulgated, the Upper Tribunal promulgated Country Guidance in AT and others (Art 15(c); risk categories) Libya CG [2014] UKUT 318 (IAC). The Upper Tribunal held that the First-tier Tribunal had erred by failing to consider the guidance, set aside its decision and remitted the appeal. The central issues were when the First-tier Tribunal ceased to be seized of the case and whether the error was material.

Flaux LJ gave the leading judgment, with McCombe and McFarlane LJJ agreeing. The appeal was dismissed.

1. Status of Country Guidance. Country Guidance decisions do not establish binding principles of law, but are authoritative in subsequent appeals concerning the relevant issue and the same or similar evidence. Under paragraphs 12.2 and 12.4 of the Practice Directions: Immigration and Asylum Chambers of the First Tier Tribunal and Upper Tribunal, a clear apparently applicable decision must be followed, or its inapplicability must be explained. Failure to do so is an error of law because a material consideration has been ignored or legally inadequate reasons have been given. The principle applies even where neither party draws the guidance to the tribunal’s attention, as illustrated by Bokhurt v SSHD [2006] EWCA Civ 289.
2. Promulgation as the cut-off point. Following SSHD v RK (Algeria) [2007] EWCA Civ 868, the First-tier Tribunal remained seized of the appeal until its determination was promulgated. The guidance in AT was therefore available in time, although it was promulgated after the hearing and signing of the determination. There was no sliding scale based on how shortly before promulgation the guidance became available. The duty was also consistent with fairness and consistency between like cases, reflected in Januzi v SSHD [2006] UKHL 5.
3. Materiality. The First-tier Tribunal had treated residence in Khoms and asserted family association as sufficient to establish risk. The guidance in AT required a fact-sensitive assessment and did not treat ordinary association with the former regime, residence in a former stronghold, or mere family assertion as sufficient. The guidance was likely to influence the tribunal’s whole approach to risk, so the error was material. Subsequent guidance in FA (Libya; Art 15(c)) Libya CG [2016] UKUT 00413 (IAC) did not undermine the other aspects of AT.
4. Remedy. The appropriate course was to uphold the Upper Tribunal’s decision setting aside the First-tier Tribunal’s determination and remitting the appeal for a full rehearing in light of AT. Fresh-claim or cessation procedures were unsatisfactory alternatives because they would increase uncertainty, delay and expenditure.

1. Court of Appeal (Civil Division): in [2017] EWCA Civ 143, dismissed the appeal and upheld the Upper Tribunal’s decision.
2. Upper Tribunal (Immigration and Asylum Chamber): found that the First-tier Tribunal had erred in law by failing to consider the Country Guidance in AT, set aside its determination and remitted the appeal for reconsideration. A further determination confirmed the remission.
3. First-tier Tribunal: allowed the appellant’s protection appeal after a hearing on 20 June 2014. The determination was signed on 30 June 2014 and promulgated on 16 July 2014.