Country Guidance in Asylum Cases: Approaches in the UK and Sweden

Year: 2013

Type of text: Working paper

Published by:  The Refugee Law Initiative (RLI)

Language: English

Author: Rebecca Stern

Pages: 30

Available at: https://sas-space.sas.ac.uk/4956/1/RLI_Working_Paper_No.9.pdf

Short description of text 

“The objective of this working paper, against the background provided above, is to discuss the different approaches adopted by the United Kingdom (UK) and Sweden. ” (5)

Most important results

“As the explicit role of the Migration Court of Appeal is to provide guidance, views on what should be covered by such advice and direction have been manifold. From the very beginning the Migration Board and the Migration Courts have sought directions from the Migration Court of Appeal on both matters of law and fact. This has particularly concerned the topics of how to assess the situation in a particular country or region, or a consideration of the potential protection status of a particular ethnic or social group – what might be referred to as ‘country guidance’ (though the concept encompasses more than a strict assessment of country conditions). 32 The Migration Board of Appeal, however, has so far declared that it will not issue such guidance. The reasons provided by the Migration Court of Appeal have been i) the task of the Court is to provide guidance on legal issues, not on the situation in a particular country as the latter is not a matter of adjudication; ii) it is for the parties in a case to provide country information they considered relevant for the case and the court will base its judgment on what was presented to it; and iii) the situation in a country or region can be subject to rapid change, making it difficult for the Migration Court of Appeal to provide country guidance that is sufficiently updated, given the time-consuming process of identifying a suitable case to form the basis of a precedent and then drafting said judgment.33 If such guidance were to be presented, representatives of the Court have argued, the situation in a country would need to be revisited and precedents on such issues reviewed regularly.” (8-9)

“There is also the problem of judges being presented with different information leading to different outcomes in very similar cases, which can lead to accusations of arbitrariness. In the case of the UK, this problem has been addressed by the introduction of so-called country guidance cases, providing authoritative guidance on generally recurring country issues produced by senior judges of the Upper Asylum Tribunal.” (14)

“It contributes to the efficiency of the asylum process because the same material will not have to be assessed in each individual case. This allows judges and parties to concentrate on the relevant issues.” (18)

“In the case of Sweden, the lack of country guidance could be seen as having a negative effect on the efficiency of the asylum process as it requires the first tier courts and the Migration Board to include and analyse all available COI in the context of every individual case which is a time-consuming task. Having a precedent to follow also in this respect presumably would speed up the process. The Migration Court of Appeal however has a point when stating that in light of the fact that the Migration Court of Appeal only grants leave to appeal to a very limited number of all the applications it receives each year, country guidance judgments from the Court would be at risk of soon becoming out of date and hence inapplicable while still being “the last word” on the issue at hand. ” (19)

“An obvious resolution of the time aspect issue would be to increase the number of cases granted leave to appeal. “ (19)

“Concern has however been expressed over the use of country guidance in the UK leading to certainty and consistency taking priority over individual justice. “ (20)

“In the Swedish context, the opposite situation is a cause of concern as a lack of country guidance could be a breeding ground for inconsistency and arbitrariness in decision making, leading to a lack of predictability and hence unsatisfactory legal certainty for the individual. From the perspective of the lower instances, a guiding judgment providing a thorough, indepth expert analysis of the future risk for a particular group of the situation in a particular country undoubtedly is most helpful.” (21)

Method

Intervjuer med svenska och britiska dommare och administrativa belutsfattare.

Summarised by: Josefin Åström