I heard a great story the other day about the country guideline case that had been listed to deal with the situation in Iraq and the new ‘serious harm’ definition in the EC Qualification Directive. I had wondered what had happened to this, but what with the delay with coming up with a determination in HS (Zimbabwe) I assumed it was still in the pipeline somewhere.
Robin Tam QC was representing the Home Office. Tam used to be seen regularly as Treasury Counsel in immigration cases and was known to be a merciless enforcer for the Secretary of State. Since taking silk he seems to have been reserved for major cases only, and I assume his practice has diversified. But the Home Office were wheeling out the big guns for this one.
I hear that he started the case by asking for an adjournment. This was refused. He then proceeded shamelessly to hand out status papers to the appellants, granting them refugee status there and then.
‘Great’, you might say, and also ‘how strange!’ It was indeed a great result for the individual appellants. The effect of the grant of status, though, was that each of their appeals was killed stone dead. Once you have been granted more than one year of status, your appeal is considered abandoned by operation of statute, or section 104 of the Nationality, Immigration and Asylum Act 2002, more precisely.
The Home Office wasn’t ready. Their adjournment request was refused. So they killed the appeals. Presumably they thought they might lose.
Mark Ockelton, the Deputy President, is said to have been incandescent with rage. But there was nothing he could do.
In some ways this is hilarious. In others, it is deeply unsettling. A system of guidance cases has been established, but one of the parties to the appeal can ensure that good facts never get considered by the courts by making sure status is granted. It is deeply unfair. It is also an appalling waste of public funds – several days of judicial time down the pan as well as the immense amount of legally aided preparation the appellants’ teams will have put in.
This is not the first time it has happened, either. A country guideline case on Ahmadis in Pakistan had to be abandoned because the Home Office granted status, thereby leaving the old and claimant-unfriendly guidance case in place.
The AIT is said to be lining up another collection of cases to try again on Iraq, but we’ll have to wait quite some time, it would seem. In the meantime, the status quo arguably favours the Home Office.
Another nail in the coffin of the CG system? Not likely, sadly.