- Program in Refugee and Asylum Law
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Third-year student at the University of Michigan Law School
Asylum adjudicators in the United Kingdom have been overwhelmed with the volume of asylum claims in recent years. The pressures to achieve consistency are high, as the impression of inconsistent results undermines national authorities’ credibility. Because asylum applicants oftentimes flee the same widespread persecution in any given country, British immigration courts have adjudicated asylum claims using precedential “country guidance” cases since 2004 to ensure uniform results for similarly situated asylum applicants.
The idea of binding “factual precedents” is an innovative idea that theoretically increases both the consistency and efficiency of British asylum determinations. However, the manner in which British immigration courts issue country guidance cases and use them during the well-founded fear inquiry fails to ensure that asylum applicants receive the individualized assessment that is needed to avoid returning them to countries where they risk harm on a convention ground. Country guidance should not serve as a barrier to claiming asylum, but rather as a way for refugees fleeing common fact patterns to efficiently demonstrate a prima facia case for protection.
The United Kingdom must have some individualized manner of assessing whether an asylum applicant is at a real risk of harm. The non-refoulment principle enshrined in Article 33 of the Refugee Convention requires signatories like the United Kingdom to ensure that no applicant is returned to a country where they would face a real risk of persecution on account of their race, religion, membership in a particular social group, or other protected category. Guidance from the United Nations Human Rights Commissioner has made clear that the treaties that create a right of non-refoulment require risk assessments to be individualized. Commentators further assert, in the specific context of the Refugee Convention, that the assessment must also take into account how the same facts that create a risk of persecution could impact similarly situated applicants in a different manner. It follows that international law requires the United Kingdom to have the institutional infrastructure in place to allow asylum applicants to demonstrate their asylum eligibility individually, even if their claim is similar to those of previously adjudicated cases.
The ways in which the British immigration courts issue country guidance cases and rely upon them during the well-founded fear inquiry risk refouling asylum applicants to countries where they face a real risk of persecution. These cases arguably foster adjudicators’ reliance on generalized findings about a refugee claim from a given country rather than encouraging individual assessments of applicants who make a claim. The systemic nature of these precedents makes it essential that if the United Kingdom continues to use factual precedents, it must ensure that their use is sufficiently disciplined to enhance the tribunal’s ability to achieve accurate results. LC Albania demonstrates the real risk of parties being bound by information they do not have the opportunity to cross-examine, and non-compliance by the Home Office with judicial management of the country guidance system.
Country guidance cases affect adjudications of asylum applications throughout the asylum process. Asylum officers adjudicate claims in the first instance according to Home Office “policy guidance,” which puts forward comprehensive country of origin information from a variety of sources and includes country guidance cases where they exist. While this comprehensive guidance emphasizes that it presents general information and that any individual asylum adjudication is based on individual concerns, it also directs asylum officers that follow-up inquiries to reconcile individual accounts that contradict country of origin information are discretionary.
The discretion leads to disparate outcomes. Two similarly situated applicants might face officers who exercise the discretion to conduct an individual inquiry inconsistently. One officer might recognize an application as meriting a follow-up individual assessment, while another might not. While in theory an appeal to British immigration courts could ensure that applicants receive uniform treatment from asylum officers, the country guidance system’s presumption against individualized analysis is even more stark in an immigration court than in Home Office adjudications. If a country guidance case exists for the protected ground that the applicant asserts, an immigration judge reviewing an asylum officer’s decision in the Asylum and Immigration Chamber First-Tier Tribunal follows a three-step inquiry: (1) Evaluate whether the applicant is seeking protection on the basis of a protected ground, (2) Look to the country guidance case to determine what members of this protected ground face a risk of persecution if returned to the home country, and (3) Analyze under the rationale and findings of the country guidance case whether the applicant would face persecution if returned to their home country. First-tier immigration judges cannot deviate from “country guidance” cases and create new guidance for increasingly specified situations.
The management of “country guidance” falls to the reporter of the Upper-Tier Tribunal whose process for issuing country guidance cases is haphazard. Neither an appeal to the Upper-Tier Tribunal nor a separate appellate court is sufficient to disseminate an updated country guidance case. Rather, the decision to designate a case as a country guidance case falls within the purview of the reporter of the Upper-Tier Tribunal and the kinds of evidence considered in this designation are oftentimes set at the discretion of its convened members. Relying on discretion to manage updating the country guidance case creates a haphazard system that fails to ensure the country guidance is routinely reevaluated, and as illustrated by LC Albania, can even inhibit the system’s compliance with judicial supervision.
LC Albania illustrates a danger of the country guidance system: the application of a country guidance case to a category of applicants who did not get the chance to contest evidence that went into the precedent. There, an unaccompanied minor from Albania applied for refugee protection on the basis of his sexual orientation. A Home Office asylum officer denied him asylum, finding, in part, that “it would be possible for him to live [in Albania] openly as a gay man.” On appeal, the Immigration and Asylum Chamber declined to analyze whether the individual facts of LC’s case merited overturning the Home Office determination because he did not fit a profile in the country guidance case for those at risk of persecution in Albania on the basis of sexual orientation. On appeal to the England and Whales Court of Appeals, the Court held that LC was not eligible for protection but also found that the country guidance case used to deny his appeals had been vacated several years prior. In the interim, hundreds of asylum applicants had been returned to Albania on the basis of it.
The country guidance system creates legal and factual precedent beyond the underlying facts of the claim in a country guidance case. For instance, in LC Albania, the country guidance case used to decide which profiles of Albanians were at risk of persecution based on their sexual orientation had confronted a totally different factual scenario, a female applicant as opposed to a male applicant, and had only included speculative, generalized evidence about which other profiles would be at risk of persecution on the basis of sexual orientation in Albania. The applicant in the relevant country guidance case, a lesbian woman seeking asylum on the basis of her sexual orientation, did not have the same incentive to challenge the evidence and expert testimony about which categories of gay men were at risk when the country guidance case was being issued. Later applicants whose cases were analyzed according to this precedent, like LC, could not challenge this evidence as they were not parties to the case. The findings for which profiles of Albanian males faced a risk of persecution on account of their sexual orientation were thus not the products of an adversarial process, but bound LC nonetheless.
This continued improper use of a vacated country guidance case illustrates the systematic danger of permitting factual precedents to govern Home Office adjudications. When there are errors in binding factual findings or in their administration by the Home Office, the risk of refoulment is systemic as opposed to a singular wrongful deportation that would result from poor analysis of country of origin information in a one-off case that was not reliant on a country guidance case.
The country guidance system is salvageable. While its elimination would ensure a purely individualized inquiry into whether an asylum applicant is a member of a protected group and at risk of persecution on account of that membership, doing so would revive the inconsistency and inefficiency problems that the system sought to address.
In addition to increasing coordination between the relevant authorities to prevent the continued use of vacated guidance cases, the use of country guidance should be disciplined in two ways. First, country guidance cases should be comprehensive but narrow, rather than attempting to be comprehensive and broad. They should strive to give the comprehensive coverage to applicants that are truly similarly situated, but not attempt to determine the asylum eligibility of different sub-populations or issue factual findings beyond what is needed to adjudicate the immediate claim. Additionally, decision-makers should supplement any country guidance system with a non-discretionary, individualized well-founded fear assessment for asylum applicants who do not fit a country guidance case profile and did not receive protection from the Home Office.
this proposal, courts would use country guidance cases to ensure the Home Office
grants asylum to applicants that fit profiles of previously successful
applicants without the burden of an individualized analysis but could not use
them to deny asylum to those who did not fit a profile. For these applicants,
courts would then hear additional, individualized evidence about whether they face
a risk of persecution upon return to the home country despite not fitting the
profile. This use of country guidance would achieve the goal of efficiency
while at the same time enhancing protection against non-refoulment by eliminating
the risk of an asylum officer abusing their discretion to exclude additional,
individualized analysis and of an immigration court using clumsy precedent to
refoul an applicant.
 See May Bulman, Asylum Waiting Times at Record High as Thousands Left in Limbo, The Independent (Aug. 12, 2019, 7:16 PM), https://www.independent.co.uk/news/uk/home-news/asylum-seekers-waiting-times-home-office-immigration-a9075256.html (reporting that there has been a 58% increase in asylum wait times over the last year and that the number of appeals pending has doubled since 2014).
 See generally Robert Thomas, Consistency in Asylum Adjudication: Country Guidance and the Asylum Process in the United Kingdom, 20 Int’l J. Refugee L. 489, 492–501 (2008) (chronicling the adoption of the country guidance system).
 Convention Relating to the Status of Refugees art. 33, July 28, 1951, 189 U.N.T.S. 152 [hereinafter Refugee Convention].
 See Office of United Nations Human Rights Commissioner, What Do We Mean by ‘Protection’ for Migrants? (2018), https://www.ohchr.org/Documents/Issues/Migration/GlobalCompactMigration/Protection.pdf. (“States should put in place and allocate resources to ensure that the IHRL [International Human Rights Law] can be assessed individually and with due process, as a component to asylum determination mechanisms.”) Though this guidance incorporates the entire body of human rights law including other treaty obligations such as the Convention Against Torture, it illustrates the need for parties to the Refugee Convention to take care that there is an individualized assessment of the risk that applicants face.
 See Colloquium on Challenges in International Refugee Law, The Michigan Guidelines on Well-Founded Fear, 26 Mich. J. Int’l L. 492, 501 (2005) [hereinafter Colloquium]. (“The particular circumstances of a person seeking recognition of refugee status are not relevant simply to the question of whether he or she can be said to have a well-founded fear. The determination of whether the risk faced is appropriately adjudged to amount to a risk of ‘being persecuted’ also requires careful consideration of matters which may be unique to the individual concerned […] Thus, for example, the psychological vulnerabilities of a specific applicant may be such that the risk of harms which would be insufficiently grave to justify recognition of refugee status for most persons will nonetheless amount to torture, cruel, inhuman, or degrading treatment for him or her.”).
 The United Kingdom has a duty to avoid non-refoulment as a party to the Refugee Convention. As discussed in Colloquium, supra note 5, this means that individual circumstances impact both whether a harm is severe enough to constitute a real harm and whether there is a real risk. It follows from this obligation of non-refoulment and from the individualized nature of risk that there needs to be some kind of individual inquiry, or at the very least an analysis of all of the facts that come forward from an individual’s interview.
The Country Guidance system was adopted, in part, to combat the large immigration backlog in the United Kingdom. See Bulman, supra note 1. For the reasons discussed in Section III.A, there is a presumption against departing from country guidance such that the expectation that all applicants would receive an individual assessment “does not match the reality” in practice. See Section III.A, infra; David Bolt, An Inspection of the Home Office’s Production and Use of Country of Origin Information § 3.16 (2017), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/677556/An_inspection_of_the_production_and_use_of_Country_of_Origin_Information.pdf [hereinafter Chief Inspector’s Report].
 See United Nations High Commissioner for Refugees, United Kingdom: Home Office, Refworld, https://www.refworld.org/publisher,UKHO,COUNTRYREP,,50ffbce5274,,0.html (last visited Nov. 29, 2019) (providing a basic overview of how country of origin information is generated.)
 See, e.g., Home Office, Country Policy and Information Note Albania: Sexual Orientation and Gender Identity 2 (2019) (UK), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/797379/Albania_-_SOGI_-_CPIN_-_v5.0__April_2019__.pdf (stating in its preface that decision makers “must still consider all claims on an individual basis.”) But see Chief Inspector’s Report, supra n. 7 (noting that while the Home Office’s Country and Policy Information Team expectations for users of Country of Origin Information state that “decision makers must consider claims on an individual basis, taking into account the case specific facts and all relevant evidence, including the policy guidance contained with this note[,] the available COI[,] any applicable caselaw[,] and the Home Office casework guidance in relation to relevant policies[,] [t]his does not match the reality.”).
 See, e.g., Home Office, Asylum Policy Instruction: Assessing Credibility and Refugee Status, § 188.8.131.52 (2015) (UK), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/397778/ASSESSING_CREDIBILITY_AND_REFUGEE_STATUS_V9_0.pdf (emphasizing that when discovering contradictory country of origin information after an interview, the asylum office “may” attempt to reconcile the information by requesting a statement or additional interview).
While the Home Office theoretically allows departures from country guidance, it relies on the discretion of adjudicators to do so and this discretion is not exercised in the orderly manner that the Office implies. See Chief Inspector’s Report, supra n. 7, at§ 3.16; Senior President of Tribunals, Practice Directions for the Immigration and Asylum Chambers of the First-Tier Tribunal and the Upper Tribunal, ¶12.4 (2018) (UK), https://www.judiciary.uk/wp-content/uploads/2018/12/practice-directions-iac-dated-18-dec-2018.pdf [hereinafter Practice Directions] (explaining that country guidance as implemented disincentives individualized analysis as departure may be considered a “legal error”).
 This three-step inquiry has different formulations depending on the relevant ground of persecution; but it is most apparent in the sexual orientation context. See, e.g., LC (Albania) v. Sec’y of State for the Home Dep’t,  EWCA Civ 351,  1 WLR 4173  (Eng.), https://www.refworld.org/cases,GBR_CA_CIV,5919695e4.html (finding that where an asylum applicant claims that he will be persecuted in his home country due to his sexual orientation, a sequential four-stage test applies, requiring the decision maker to adopt the following analysis: “i. Is the applicant gay, or someone who would be treated as gay by potential persecutors in his country of origin? If no, the application should be refused. If yes: ii. Do openly gay people have a well-founded fear of persecution in the country of origin? If no, the claim should be refused. If yes: iii. In respect of his sexual orientation, will the applicant be open? If yes, he is a refugee and his claim should be allowed. If no: iv. If he would not be open and rather live discretely, is a material reason for living discreetly that he fears persecution? If yes, he is a refugee. If no, then his claim should be refused.” If there is a country guidance case, then the second step in this analysis is confined to the parameters of the country guidance case such that the analysis becomes: 1. Is the applicant a member of the protected class? 2. Does he fit within the parameters of the country guidance case? 3. Will the applicant be perceived as a member of the protected class? Id. at  (describing the analysis of the first-tier tribunal, and its usage of the country guidance case).
 Practice Directions, supra n. 11, at ¶¶12.2–12.4 (“Any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the law in question is likely to be regarded for a ground of appeal on a point of law”).
See Upper Tribunal Immigration and Asylum Chamber, Guidance Note 2011 No. 2: Reporting Decisions of the Upper Tribunal Immigration and Asylum Chamber, ¶¶11–13 (2015) https://www.judiciary.uk/wp-content/uploads/2014/01/guidance-note-2001-no-2-reporting-decisions-july-2015.pdf (outlining the criteria for reporting of a country guidance case).
 As discussed in detail in Section III.B, the tribunal in LC Albania failed to respond to an appellate court’s invalidation of the relevant country guidance case in 2011. This disconnect between judicial supervision and the management of the factual precedents by the Reporter illustrates the difficulty of properly managing the system. See Section III.B, infra. There is also concern regarding how effectively the Home Office responds to judicial management of country guidance. See Chief Inspector’s Report, supra note 7, at ¶¶ 11.31–11.32 (“Stakeholders with direct experience of litigation involving [Country of Origin Information] thought that there was a ‘lack of effective and accurate feedback being implemented immediately after a judicial decision’ […] Significant concerns were raised about the apparent lack of feedback on Country Guidance cases.”).
 LC (Albania),  EWCA Civ 351,  1 WLR 4173 at .
 Id. at .
 Id. at .
 Diane Taylor, Asylum Seekers May Have Been Wrongly Deported to Albania, The Guardian (May 10, 2017 2:00 AM), https://www.theguardian.com/uk-news/2017/may/10/asylum-seekers-may-have-been-wrongly-deported-to-albania (reporting that when arguing before the Appellate Court, the government’s barrister conceded that the Home Office relied on the prior case in error).
 The case that the Tribunal cited was MK v. Sec’y of State for the Home Dep’t. See LC (Albania),  EWCA Civ 351,  1 WLR 4173 at  (citing  UKAIT 36 (UK)). MK was an asylum claim by an Albanian woman who sought protection on the grounds of her sexual orientation. Because of a lack of guiding precedent, the Upper Tribunal solicited testimony on a range of conditions faced by LGBTQ+ individuals in Albania to attempt to have comprehensive coverage of different factual scenarios. See MK (Lesbians) Albania,  UKAIT 36.
 The First-Tier Tribunal predicated its finding that LC was not at risk on its finding that LC did not fall within the risk categories identified in the country guidance case. See LC (Albania),  EWCA Civ 351,  1 WLR 4173 at  (citing MK (Lesbians) Albania,  UKAIT 36).
 This is the path that the Australia High Court recommended in Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs, a leading case on risk assessment for similarly situated individuals, to avoid “schemes” to efficiently adjudicate similarly situated individuals. (2003) 216 CLR 473 ¶76 (Austl.), https://www.refworld.org/cases,AUS_HC,3fd9eca84.html (“It is perhaps inevitable that those, like the Tribunal, who must deal with large numbers of decisions about who is a refugee, will attempt to classify cases. There are dangers in creating and applying a scheme for classifying claims to protection. Those dangers in creating and applying a scheme for classifying claims to protection. Those dangers are greatest if the classes are few and rigidly defined and distinctive features of a claim are put aside in favor of other, more general features which define the chosen class.”)
Suggested Citation: Mason Hill, Clumsy Precedents and Arbitrary Discretion: Britain’s Country Guidance System and The Obligation of Non-Refoulment, RefLaw (Dec. 8, 2019), http://www.rdxindia.xyz/reflaw/clumsy-precedents-and-arbitrary-discretion-britains-country-guidance-system-and-the-obligation-of-non-refoulment/.