This blog post is a review and reflection on Sir Nicholas Blake’s discussion on the UK system of country guidance and how it links to work of the international courts, 22 November 2012.
In a fascinating seminar held by the Refugee Law Initiative, Sir Nicholas Blake outlined the current interplay between national and international courts in the determination of asylum adjudication in the UK, before moving on to discuss issues relating to country guidance cases as set out in his recent paper entitled “Luxembourg, Strasbourg and the national court; the emergence of a country guidance system for refugee and human right protection.”
Sir Nicholas began by discussing the history of asylum claims in the UK up to present day. Currently, we have a system whereby the adjudication of a case covers 3 distinct issues: whether the story of the claimant is sufficiently credible; whether the harm feared is within the criteria for protection under domestic law, the Refugee Convention, the ECHR or the EU 2004 Qualification Directive; and finally an assessment of country conditions or as Sir Nicholas defined “real risk”.
Country guidance cases come under this third issue of real risk. Sir Nicholas suggests the notion of country guidance in the UK and under EU regulations promotes the idea that if objective conditions are such that a person with certain attributes is at real risk if returned to a specific country then in principle all judges across Europe should come to the same conclusion.
Strasbourg appears to be striving for this uniformity by instructing national judges to use the UN High Commissioner for Refugees (UNHCR) country guidance; ask the right questions; and determine what is actually happening on the ground in the country of origin or expect a Rule 39 decision will follow.
Sir Nicholas proposes key principles that national courts should abide by when considering country guidance cases, which in turn will influence their relationship with the international courts.
First, country guidance decisions should occur at the national level by judges and not the Executive. Courts have to fully and fairly assess each individual case. They should rely on the most up to date country guidance cases and apply them to relevant new cases. Courts, however, also need to be aware and flexible to changes in circumstances in the country of origin when making a decision or allowing for fresh claims to be made.
These principles, Sir Nicholas argues, will then allow country guidance decisions to remain at the national level rather than the international level, making Strasbourg a subsidiary level of decision making rather than a prime level. This will benefit the claimants, through consistencies of decisions, sufficient allocation of time to hear each case and reducing the effect of any inequality of resources.
Sir Nicholas concluded by warning of the risk of both European Courts being the “fact finders” in country guidance cases. They should avoid taking the primary role in these cases, leaving this to national courts who have the time and resources to investigate these cases effectively.
This post was originally published by the Refugee Law Initiative, the only national academic centre concentrating on international refugee law. For more information please visit their website, http://rli.sas.ac.uk/.