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Immigration tribunal understates Afghan casualties by factor of 10 in country guidance case
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Immigration tribunal understates Afghan casualties by factor of 10 in country guidance case

The Court of Appeal has in the case of AS (Afghanistan) v Secretary of State for the Home Department [2019] EWCA Civ 208 decided that the Upper Tribunal can correct a mistake made in the reasons for a determination. The court interprets Rule 42 of the procedure rules as affording this power, but Lord Justice Underhill giving the leading judgment also states obiter that the Upper Tribunal probably also has an inherent jurisdiction to correct mistakes.

The mistake in this case was a biggie. In a country guidance case all about indiscriminate violence in Afghanistan, the tribunal states that the proportion of the Kabul population suffering death or serious injury in security incidents was “less than 0.01”. The actual figure, which is undisputed, is “around 0.1”.

The difference is between less than 1 in 10,000 and around 1 in 1,000.

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The Court of Appeal decision is a preliminary one. Underhill LJ holds that the tribunal would have the power to correct a mistake if it was one of expression only but comments that it would be inappropriate to do so in the particular circumstances of the case. The outcome, I think, is that a formal appeal will now proceed, which is very likely to succeed given the gross factual mistake, unless the tribunal pipes up of its own accord despite what Underhill LJ says and tells everyone to calm down, it was merely an error of expression.

Where does this leave the country guidance case of AS (Safety of Kabul) Afghanistan CG [2018] UKUT 118 (IAC)? Given that it seems to be founded on gross error, it rather feels as though it should not be relied upon in the meantime, until we find out what the final resolution of the case is. However, as far as I can see it still has formal force as country guidance and will need to be distinguished by pointing to this Court of Appeal judgment.

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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