Court of Appeal Clarifies the Concept of an Error of Law

16 Mar 2017 | by Monckton Chambers

The Court of Appeal today clarified the circumstances in which a failure by the First Tier Tribunal (FTT) to take account of a relevant ‘Country Guidance’ case when determining an asylum appeal will constitute an error of law: NA (Libya) v Secretary of State for the Home Department.

A Country Guidance case is one in which the Upper Tribunal (UT) issues authoritative guidance on the situation in a particular country, based on a detailed assessment of expert and factual evidence.  The general rule is that, in any subsequent appeal relating to the same country, the FTT is obliged to take account of an applicable Country Guidance case in deciding whether an appellant’s fear of persecution in that country is well-founded.  A failure to do so is an error of law because it constitutes a failure to take a material matter into account.

The Appellant, a national of Libya, had appealed to the FTT against the Secretary of State’s refusal to grant him asylum.  The FTT accepted that, having previously lived in a Gaddafi stronghold, he would be perceived as a supporter of the former leader on return to Libya and would therefore be at risk of persecution by members or supporters of the new regime.

After the FTT prepared and signed its decision, but two days before that decision was promulgated (formally issued), an Country Guidance case was issued by the UT in relation to Libya: AT (Libya) [2014] UKUT 318.  AT (Libya) cast doubt on the FTT’s decision in the present case but, since it was issued after the FTT’s decision was prepared and only two days before its promulgation, the FTT did not take AT (Libya) into account.  The Appellant argued that the FTT’s failure could not, in those circumstances, amount to an error of law and that its decision to uphold his asylum claim should therefore stand.

The Court of Appeal disagreed.  It held that, if a Country Guidance case was issued before promulgation of an FTT decision, the FTT was required to take it into account.  Any failure to do so would amount to an error of law, whether or not the Country Guidance case had been drawn to the FTT’s attention.  The rationale behind the requirement to follow a relevant Country Guidance case is the principle that like cases should be treated alike.  Thus the Court explained that, whilst the FTT Judge could not be criticised for the error: “It is important that the applicable principles about following and applying Country Guidance cases do not become obscured by the happenstance of the timing in the present case and it should make no difference when, precisely, before promulgation of the case before the Tribunal, the Country Guidance case is published and promulgated”.

The Court’s decision clarifies the scope of the FTT’s duties in the asylum context and confirms that an error of law is essentially an objective concept that does not depend on the decision-maker being at fault.

Ben Lask acted for the Secretary of State.

Click here to read the judgment.