Meid Omar Adam v Secretary of State for the Home Department

A Country Guidance decision designated as authoritative under section 107 and the applicable Practice Direction is to be treated as binding for the review jurisdiction in rule 45 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

A later Country Guidance decision may therefore permit review of an Upper Tribunal decision under rule 45(1)(b), even though its absence when the earlier decision was made was not an error of law. Review remains discretionary and is available only where the later authoritative decision could have had a material effect on the outcome.

Meid Omar Adam applied for permission to appeal to the Court of Appeal against a decision of Deputy Upper Tribunal Judge Doyle, dated 23 June 2017. The earlier decision dismissed his appeal after finding that he was Libyan, rather than Sudanese, and could safely be returned to Libya.

After that decision, the Upper Tribunal issued the Country Guidance decision ZMM (Article 15(c)) Libya CG [2017] UKUT 00263 (IAC). It indicated that Libyans were, in principle, at risk of treatment contrary to article 15(c) on return. The central issue was whether that later Country Guidance decision could be treated as binding for the review power in rule 45.

1. The Tribunal reviewed and set aside the earlier Upper Tribunal decision. It substituted a decision allowing the appellant’s appeal on humanitarian-protection grounds.

2. Rule 45(1)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008 permits review where a later decision binding on the Upper Tribunal could materially have affected its earlier decision. A Country Guidance decision is not technically binding in the ordinary sense. However, section 107 of the Nationality, Immigration & Asylum Act 2002 and paragraph 12.2 of the relevant Practice Direction require it to be treated as authoritative on the identified country-guidance issue, subject to the stated qualifications.

3. For rules 45 and 46, that authoritative status has sufficient practical equivalence to a binding decision. A tribunal cannot decide an applicable country-guidance issue contrary to such a decision merely on its own assessment. Accordingly, an authoritative Country Guidance decision falls within rule 45.

4. This conclusion does not make review automatic whenever Country Guidance exists or is raised. The authority must be relevant and capable of having a material effect on the earlier Upper Tribunal decision. The same materiality restriction applies whether the alleged basis is an overlooked existing decision under rule 45(1)(a) or a subsequent decision under rule 45(1)(b).

5. ZMM (Article 15(c)) Libya CG [2017] UKUT 00263 (IAC) could clearly have had that effect. Had it been before Judge Doyle, he would inevitably have reached a different outcome on the appellant’s return to Libya. The review power was therefore engaged and the appeal was allowed on humanitarian-protection grounds.

• Upper Tribunal (Immigration and Asylum Chamber): On an application for permission to appeal to the Court of Appeal, the Tribunal reviewed the decision of Deputy Upper Tribunal Judge Doyle dated 23 June 2017. It set that decision aside under rule 46 and substituted a decision allowing the appeal on humanitarian-protection grounds.