UK - Court of Appeal, 13 December 2011, HM (Iraq) and RM (Iraq) v Secretary of State for the Home Department [2011] EWCA Civ 1536

Facts:

The appeal of the applicants and two others had been listed as counrty guidance on the issue of Art 15(c) of the Qualification Directive and therefore risk on return to Iraq. Two firms of representatives had conduct of the four cases and had co-operated on commissioning and assembling the evidence on behalf of the applicants. UNHCR had been joined as a party and had submitted written evidence. A week before the hearing was listed the representatives contacted the Tribunal. One applicant had not maintained contact with the representatives, who considered themselves without instructions, the two brothers, HM and RM, had withdrawn instructions from the same firm and the fourth applicant had instructed his representatives to withdraw his appeal. All the applicants were publicly funded and the public body responsible had withdrawn funding, presumably because success was rated at less than 50% (which in the UK is the minimum amount required to act for someone at appeal under public finding).

The Tribunal was seriously aggrieved by the situation and refused permission to the fourth applicant to withdraw his appeal. The unrepresented HM and RM were present. Further enquiries confirmed that public funding was not available and that the representatives would not act for nofee (see Art 15(d) of the Procedures Directive). The Tribunal considered the situation and decided to hear and determine the appeals in the absence of any representation for the applicants and to dismiss the appeals.

HM and RM were subsequently granted public funding to appeal to the Court of Appeal on both procedural and substantive grounds.

Decision & reasoning:

The Court rejected the submission that given the special status of a country guidance case, legal principle required that a “proper contradictor” was required in an adversarial system. The Court found that a court would generally not exercise its discretion to grant a declaration in the absence of proper argument. It accepted that country guidance cases have a significance and status and that it was important that there should be “proper argument”.

The Tribunal erred by not considering how it could ensure that it heard proper argument. It could have invited UNHCR to step into the breach and it could have requested the Attorney General to consider counsel to assist the Court, as amicus curiae.

The Court briefly considered submissions on whether the Tribunal had been insufficiently or inappropriately overly inquisitorial but on the facts the Court rejected these criticisms. The Court took into consideration who had produced certain documents (the parties or the Tribunal) and the date when one document had been published.

The previous determination was quashed and ceased to be valid country guidance. The substantive issues remain to be considered at a fresh hearing before the Tribunal.

Outcome:

Country Guidance quashed. Appeal remitted for fresh hearing.

Other sources:

UN High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-Seekers, April 2009.