BH v The Secretary of State for the Home Department

The Secretary of State must determine immigration matters in accordance with her relevant policies. Where an otherwise unapparent policy may undermine her case before a tribunal, she must draw it to the tribunal’s attention, even if it is publicly available.

That duty does not extend to every item of country information collated in a Country Policy and Information Note. Information is not policy merely because it appears in such a document. In protection appeals, the separate duty not to mislead requires disclosure of non-public material under governmental control which the Secretary of State knows, or ought to know, undermines or qualifies her case.

The Iraqi appellant challenged the dismissal of his protection and human-rights appeal by the First-tier Tribunal. The First-tier Tribunal had applied country guidance in AAH (Iraqi Kurds - internal relocation) Iraq (CG) [2018] UKUT 00212 and found that the appellant could relocate internally.

After permission to appeal was initially refused, the Court of Session reduced that refusal. The appellant contended that the Secretary of State had acted unfairly by not placing before the First-tier Tribunal later or existing Country Policy and Information Notes concerning Iraq. The central issue was whether the notes contained policy or country information which the Secretary of State was obliged to disclose.

1. Appeal dismissed. The First-tier Tribunal’s decision contained no error of law.

2. The Secretary of State has a duty to make decisions in accordance with her immigration policies. Where a relevant policy is not otherwise apparent and may cast doubt on her case before a tribunal, she must identify it to the tribunal. That obligation is not displaced because the policy is publicly available. Tribunal judges cannot reasonably be expected to know every immigration policy: AA (Afghanistan) [2007] EWCA Civ 12 and Mandalia [2015] UKSC 59 (see paras [41]–[43]; [67]).

3. The separate Kerrouche duty is narrower. In protection appeals, and probably other immigration appeals, the Secretary of State must not mislead by failing to identify non-public documents or information under her control, or that of another government department, which she knows or ought to know materially undermines or qualifies her case. It is not a general civil-litigation disclosure obligation and does not apply to documents already in the public domain (see paras [52]; [67]).

4. The Iraq Country Policy and Information Notes did not contain a relevant policy requiring disclosure. Their country-information sections collated published third-party material. The use of the word “policy” in a document title did not convert every factual item into policy. The Tribunal explained UB (Sri Lanka) [2017] EWCA Civ 85 as concerning government material deliberately adopted as authoritative policy, not ordinary collated country information (see paras [44]–[57]).

5. In any event, the First-tier Tribunal had followed the authoritative country guidance in AAH. The information relied on did not reveal a basis for departure and would not have affected the outcome (see paras [59]–[66]).

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal, holding that the First-tier Tribunal had made no error of law.
• Court of Session: the Lord Ordinary reduced the Upper Tribunal’s refusal of permission to appeal, finding an arguable unfairness issue concerning an alleged policy of the Secretary of State.
• First-tier Tribunal: dismissed the appellant’s protection and human-rights appeal after applying AAH (Iraqi Kurds - internal relocation) Iraq (CG) [2018] UKUT 00212.