APPEAL BY AHT (AP) AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Factual and Procedural Background

The Appellant, a 38-year-old Sudanese national, arrived in the United Kingdom in July 2009 and has since been engaged in extensive litigation concerning his asylum claim. His third appeal to the First-tier Tribunal was dismissed in April 2020. An out-of-time application for permission to appeal to the Upper Tribunal was refused in July 2020 on the basis that the Appellant failed to establish arguable merit warranting an extension of time. The Appellant sought judicial review of that refusal, which was refused by the Lord Ordinary in January 2021 on the basis that the petition had no real prospect of success.

The Appellant's claim for asylum was based on alleged involvement with the Justice and Equality Movement (JEM) in Sudan and the United Kingdom, and on having been arrested, detained, and mistreated in Sudan. The First-tier Tribunal and Upper Tribunal had previously disbelieved or rejected significant parts of his account, including findings that his risk of serious harm upon return to Sudan was not established.

The focus of the third First-tier Tribunal hearing was the Appellant's continued involvement with the JEM in the UK, which the Tribunal found unsubstantiated. The Appellant contended that the country guidance case of IM and AI (2016) did not apply to him because it concerned individuals from Eastern Sudan, whereas he originated from Western Sudan. He relied on expert evidence from Dr Verney to support this submission.

The Upper Tribunal refused permission to appeal, holding that the country guidance case was binding unless strong cogent evidence warranted otherwise, and found no arguable merit in the Appellant's challenge. The present judicial review challenges that refusal.

Legal Issues Presented

1. Whether the First-tier Tribunal erred in law by applying the country guidance case of IM and AI to the Appellant despite his origin from Western Sudan.
2. Whether the evidence of the country expert, Dr Verney, constituted strong cogent grounds to depart from the binding country guidance.
3. Whether the Upper Tribunal erred in refusing permission to appeal based on the above issues.

Arguments of the Parties

Appellant's Arguments

• The country guidance case of IM and AI applies only to persons from Eastern Sudan, and thus does not provide relevant guidance for the Appellant from Western Sudan.
• Expert evidence from Dr Verney indicated that different considerations apply to individuals from Western Sudan, and that the country guidance case was wrongly decided or at least not authoritative for the Appellant's circumstances.
• An expert who gave evidence before a country guidance tribunal can inform a subsequent tribunal that the decision was wrong or limited in scope, thus justifying departure from it.
• There was a compelling reason and important point of principle warranting the reduction of the Upper Tribunal's decision.

Respondent's Arguments

• First-tier Tribunal judges must treat country guidance determinations as authoritative and binding unless very strong cogent evidence justifies departure.
• Dr Verney's evidence as to the legal interpretation of the country guidance case was irrelevant and inadmissible; interpretation of the guidance is a matter of law for the court.
• The Appellant failed to identify any part of the IM and AI decision excluding its application to persons from Western Sudan.
• The Upper Tribunal correctly held that the First-tier Tribunal did not err in law and that the petition did not raise an important point of principle or compelling reasons to proceed.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the applicability of the country guidance case IM and AI, noting that the guidance applies broadly to persons at risk due to association with the JEM and related groups, without geographical limitation to Eastern Sudan. The court emphasized that the guidance's scope is a question of law for the court, not for expert witnesses.

The court found that Dr Verney's attempts to reinterpret or limit the guidance were inadmissible as opinion evidence on a legal matter. Furthermore, the court noted that the country guidance was based on a wide range of evidence beyond Dr Verney's reports, which were not determinative.

The court also highlighted that the Appellant's evidence regarding his involvement with the JEM was rejected, and he had not demonstrated any risk factor related to his geographic origin. The First-tier Tribunal properly assessed the evidence and concluded there was no real risk of persecution on return.

The Upper Tribunal correctly held that the First-tier Tribunal had not erred in law, and the petition for judicial review did not raise an important point of principle or compelling reasons to allow the appeal.

Holding and Implications

The court REFUSED the appeal.

The decision confirms that country guidance decisions are binding on First-tier Tribunals unless very strong cogent evidence justifies departure. Expert evidence cannot be used to reinterpret or undermine binding legal guidance. The ruling directly affects the parties by upholding the refusal to grant permission to appeal and does not establish new legal precedent beyond the application of existing principles.