New country guidance case

The case of TK (Tamils, LP updated) Sri Lanka CG [2009] UKAIT 00049 is next on the carousel. As can be seen from the title, it deals with the current situation on the ground in Sri Lanka since the military defeat of the LTTE in May 2009.

The country guidance can be summed up quite quickly: everything in Sri Lanka is fine and dandy in the tribunal’s view, despite widespread media reports to the contrary and the condemnation of the British Foreign Secretary and others. The risk criteria identified in the earlier case of LP remain valid. Despite the most important, seismic development in Sri Lanka in at least the last 25 years and a partially conflicting judgment from Strasbourg, the tribunal’s assessment made in 2007 was so prescient, far sighted and just darned good that it remains absolutely identical two years later. But of course.

There is also confirmation that there was a secret suspension of enforced removals but that these have now resumed, as of at least 26 October 2009. See paragraphs 119 to 122. The tribunal’s interpretation of the reasons for the suspension may strike some as intellectually dishonest, but I will forgo further comment.

The case is interesting mainly for other reasons. Firstly, the panel consisted of Lord Justice Carnwath, Mark Ockelton and Hugo Storey, which is the most heavyweight panel ever to have sat in the Asylum and Immigration Tribunal. The determination seems to have been written by Dr Storey.

The determination suggests that everyone stops calling country evidence ‘objective evidence’ because doing so prejudges one of the assessment criteria for the reliability and weight that should be attached to a piece of evidence. This is sound and sensible advice. Much country information is very far from objective – although that does not necessarily make it worthless.

It is also said that old country guidance cases should be accepted at face value as being correct at the time they were decided, even where re-examining the same country. This is dangerous, as it reinforces the self-serving nature of the country guidance system and means a new tribunal is explicitly starting with certain preconceptions. It also ignores the fact that quite a few country guidance cases have been overturned at the Court of Appeal (or Sessions) but remain designated as country guidance. See this interesting piece by Jonathan Mitchell QC on the issue.

Lastly, the determination takes rather an ‘old school’ approach to the expert evidence. Free Movement had hoped that the tribunal had collectively gotten over its hysterical approach to expert evidence after the Alan George fiasco. Apparently not, as even (especially?) this very senior panel is unnecessarily and rather cattily critical of the experts in the case for providing context (gasp!) and for giving opinions and analysis based on their experience and analysis (the horror!).

The sooner the tribunal comes to realise that genuine and respected experts in other academic disciplines do not and indeed cannot approach their task as if they were a seasoned and cynical old AIT judge, the sooner the tribunal will start making better quality and truly comprehensive country guidance decisions that command respect. No genuine expect trained in anthropology, history, sociology or indeed anything except law would see it as a valid or worthwhile exercise to omit context, which is crucial to a genuine and broad comprehension. That this is what the tribunal both expects and the methodology it applies itself says a great deal about the quality of the country guidance that emerges from this flawed and intellectually defunct process.

Finally, the tribunal’s obvious and blatantly unequal treatment of the evidence that was adduced from the British High Commission is very unfortunate, to put it mildly (see paragraph 70). It is accepted in its entirety despite UKBA failure to provide a witness for cross examination having undertaken to do so, despite criticisms made by Strasbourg in NA and Others and despite what the tribunal itself says in this very same determination about the need to assess objectivity and evaluate sources. I can’t do better than quote from paragraph 6:

[I]t is clear that [Strasbourg]‘s endorsement of the validity of a system of country guidance such as is applied in the UK was not unconditional. It was given only because the Court was satisfied that the UK AIT had conducted a careful and comprehensive assessment weighing different sources according to their objective merit. The Court also fully recognised that country guidance is not inflexible; it must be applied by reference to new evidence as it emerges; otherwise it would fall foul of the principle of ex nunc assessment of risk. Our country guidance system can only expect to have authority domestically and command respect abroad, therefore, if it maintains these standards.

Quite.