The Secretary of State for the Home Department v NRS

A country-guidance decision marked CG is authoritative in a relevant appeal where it is published before the First-tier Tribunal's decision is sent to the parties. The First-tier Tribunal remains seised of the appeal until that point. The date of sending is objective and readily ascertainable; a date typed on, or associated with, a judge's signed decision is neither necessarily reliable nor determinative.

Accordingly, the Tribunal followed NA (Libya) v The Secretary of State [2017] EWCA Civ 143 in Scotland. A failure to apply applicable current country guidance to a decision sent after its publication is an error of law, even where the hearing and preparation of the decision occurred earlier.

The Secretary of State appealed against two decisions of the First-tier Tribunal allowing Iraqi nationals' appeals on humanitarian-protection grounds. In each case the judge heard the appeal before the publication of new Iraq country guidance in SMO [2019] UKUT 00400, but the decision was sent to the parties afterwards.

The Secretary of State contended that the First-tier Tribunal had erred by not applying that guidance. The respondents submitted that, in Scotland, country guidance should instead take effect only when the judge completed or signed the decision. The central issue was when a country-guidance decision becomes authoritative for an appeal in the First-tier Tribunal.

1. The Secretary of State's appeals were allowed. The First-tier Tribunal decisions were sent out after SMO [2019] UKUT 00400 had been published as country guidance. Since that guidance might affect the humanitarian-protection outcomes, each decision involved an error of law.

2. Section 107(3) of the Nationality, Immigration and Asylum Act 2002 authorises practice directions requiring specified Tribunal decisions to be treated as authoritative. Paragraph 12.2 of the relevant Practice Directions provides that a reported determination marked CG is authoritative in a subsequent relevant appeal, unless superseded, replaced, or inconsistent with binding authority. Paragraph 12.4 makes an unexplained failure to follow apparently applicable country guidance likely to amount to an error of law.

3. The Tribunal followed NA (Libya) v The Secretary of State [2017] EWCA Civ 143. A First-tier Tribunal remains seised of an appeal until its decision is sent out. A decision sent after publication of applicable country guidance is therefore a subsequent appeal for paragraph 12.2.

4. The sending date should govern because it is objectively ascertainable and marks finality: before then the judge may alter the decision, whereas after then the decision has left the Tribunal's control and the parties' time to challenge it begins. The proposed signing-date rule was unreliable and would create unjustified divergence between Scotland and England and Wales in a centrally administered United Kingdom Tribunal.

5. The factual findings were unchallenged. Each decision was set aside and remitted to the original judge for redetermination under current country guidance, after any further evidence and submissions considered appropriate.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State's appeals, set aside both First-tier Tribunal decisions, and remitted them for redetermination in the light of current country guidance.

• First-tier Tribunal: Allowed NRS's and DKR's appeals on humanitarian-protection grounds under the then-existing country guidance.