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Asylum judges can second-guess Sri Lanka country guidance

Asylum judges can second-guess Sri Lanka country guidance

I will confess to overlooking this case initially. After all, Sir Stephen Richards introduces his judgment in KK (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 172 by saying “the issue is a narrow one, turning on the specifics of the individual case”. That is usually an invitation to switch off.

But asylum practitioners may be interested in the Court of Appeal’s approach to departing from country guidance case law. The key case on risk to asylum seekers returning to Sri Lanka is GJ & Others (post-civil war: returnees) Sri Lanka [2013] UKUT 319. But when KK’s case reached the First-tier Tribunal in November 2016, Judge Colvin referred to new evidence that had emerged since GJ was decided, specifically the Home Office report Country Information and GuidanceSri Lanka: Tamil Separatism (version 3.0, August 2016).

Judge Colvin concluded that “whilst the appellant may not have come within the risk categories of GJ, I have reached the conclusion that on the basis of this new background information that there is more likely than not a real risk to the appellant on return to Sri Lanka at the present time”. The Upper Tribunal thought that she had cherrypicked from the new report and ignored the bits saying that the situation in Sri Lanka had improved: “a judge is of course entitled to depart from country guidance on the basis of fresh evidence however where a departure is based on a single report, one would expect the judge to do more than rely on a limited portion of it”.

The Court of Appeal held that departing from the country guidance in these circumstances was fine:

The overall approach of the FTT judge was unobjectionable. Having made relevant findings of fact, she took as the starting point for her assessment the country guidance in GJ, quoting key passages from the headnote of that decision. She directed herself correctly that in order to depart from such guidance there needed to be cogent and reliable evidence that the appellant would be at risk on return.

Sir Stephen Richards pointed out that “the fact that the FTT judge set out only limited extracts from the CIG cannot sustain the inference that she disregarded the rest of the report… The passages in question were spread across 15 pages out of the 37 pages of the main body of the CIG. In order to identify and select them, she must have considered the whole report”. The court allowed the appeal and reinstated the judgment of the First-tier Tribunal.

Conor James McKinney

CJ is Free Movement's deputy editor.

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