Summary of Judgment by Judge Heslin

Factual and Procedural Background

The Applicant sought judicial review of a decision of Entity A to affirm the recommendation of an initial decision-maker (the Office) that the Applicant should be given neither a refugee nor subsidiary protection declaration, as communicated by letter dated 13 June 2024 ("the decision"). The Applicant is a national of Country A. He alleges that, following a sequence of interviews and written submissions, Entity A dismissed his appeal by decision dated 13 June 2024. The Applicant applied for leave to seek judicial review on grounds that included an alleged breach of s.46(8) of the International Protection Act 2015 and breaches of constitutional justice and fair procedures, on the basis that Entity A relied on an additional publicly available Country Policy and Information Note prepared by Country E ("the Country E Note") without notifying the Applicant in advance.

Procedural history (concise): the Applicant applied for international protection to the Office on 26 July 2022, was interviewed and provided with reports recommending refusal in July 2023; he appealed to Entity A on 18 August 2023 and made written and oral submissions (oral hearing on 2 April 2024). Entity A dismissed the appeal on 13 June 2024. The Applicant sought judicial review; leave was granted on the pleaded ground set out in his statement of grounds dated 11 July 2024.

Legal Issues Presented

1. Whether s.46(8) of the International Protection Act 2015 requires quashing of a decision where Entity A failed to notify the applicant in advance of publicly available Country of Origin Information (COI) which it subsequently relied upon (specifically, the Country E Note).
2. Whether the failure to notify the Applicant of the Country E Note constituted a breach of constitutional justice, natural justice or fair procedures (including the audi alteram partem principle).
3. Whether EU law (including the EU Charter and the Procedures Directive) required a different outcome or additional procedural protections in relation to disclosure of COI in the circumstances of this case.

Arguments of the Parties

Applicant's Arguments

• The Applicant relied on s.46(8) of the 2015 Act and submitted that Entity A breached that provision and principles of constitutional and natural justice by failing to notify the Applicant, in advance, that it considered the Country E Note relevant to the appeal.
• The Applicant alleged that the Country E Note was relied upon in a material way and that, had it been disclosed in advance, the Applicant (and his advisers) would have been able to make submissions explaining why it should not be relied upon and to adduce countervailing COI. The Applicant put forward an article by Expert Good as material he could have deployed.
• In oral submissions the Applicant also sought to place reliance on the EU Charter and the Procedures Directive and on the decision in Case G (BU v Germany), asserting EU-law-based rights to disclosure in administrative international protection processes (although these EU-based grounds were not pleaded in the statement of grounds).

Respondents' Arguments

• Entity A and the Government Department argued that the Country E Note comprised mainstream, publicly available COI of the same general nature as COI already relied upon by the Applicant (including reports from Organization A and the Country F Department Report) and that it did not materially change the COI picture.
• They relied on domestic authorities establishing that widely-known, standard COI need not be notified in advance and that only obscure or materially different COI that would change the picture must be notified.
• They submitted that the Applicant had not identified any particular submissions he would have made with reference to the Country E Note, nor any inaccuracy or material inconsistency between that note and COI already before Entity A.
• The respondents contended that EU-law grounds were not pleaded and that the Applicant was confined to the ground on which leave had been granted.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court applied a fact-specific analysis informed by domestic authorities and the Court of Appeal's recent interpretation of s.46(8). Key elements of the reasoning were:

• Statutory interpretation: The Court accepted the approach in Case A that s.46(8)(b) primarily secures transparency by requiring an indication in writing of the nature and source of information, but does not universally require disclosure in sufficient time to permit submissions; where undisclosed information is later shown to have been material to the decision and was not disclosed in sufficient time, fair procedures may be engaged.
• Mainstream vs. unusual COI: Guided by Case B and related authorities, the Court treated the Country E Note as mainstream, publicly available COI of the same general nature as COI the Applicant and his advisers had relied upon and cited in their submissions. The Court emphasised that widely-known COI need not be specifically notified.
• Absence of material difference or prejudice: The Court found no evidence that the Country E Note materially differed from the Country F Department reporting or other mainstream COI already before Entity A. The Applicant did not aver that the Country E Note contained factual inaccuracies, nor did he identify what specific submissions he would have made if he had been notified in advance. The Applicant's exhibit (an article by Expert Good) did not demonstrate any relevant inconsistency between the Country E Note and other COI.
• Application of inquisitorial duty: The Court acknowledged the principle from Case C that inquisitorial bodies may need to inform persons of matters of substance, but concluded that this obligation is fact-dependent and was not engaged where the COI was mainstream, not obscure, and did not alter the substantive COI picture.
• EU law and pleading limits: The Court held that the Applicant had not pleaded EU-law grounds (Charter or Procedures Directive) in the statement of grounds and that leave had not been granted to pursue those grounds; accordingly, the Court would not entertain an EU-law challenge. The Court also stated that, even if considered, the Applicant had not established any breach of EU rights on the facts.
• Reliance on authority where COI changed: The Court distinguished cases (e.g., Case E) where more recent COI materially altered the assessment and where nondisclosure produced prejudice, emphasising that those authorities support notification only when COI materially changes the assessment.

Holding and Implications

HOLDING: The application for judicial review is DISMISSED. Judge Heslin concluded that Entity A's reliance on the Country E Note without prior notification did not amount to a breach of s.46(8), constitutional justice, natural justice or fair procedures on the facts presented.

Implications:

• Direct effect: The Applicant's challenge to Entity A's decision has been dismissed; Entity A's decision to affirm the recommendation of the Office stands. The respondents were successful and, subject to final order, are entitled to costs (the Court indicated the normal rule that costs follow the event and proposed a short timetable for submissions on costs).
• Broader implications: The Court applied existing domestic authorities to confirm that mainstream, publicly available COI of the same general nature as COI already relied on by an applicant does not ordinarily require separate advance notification. The decision was fact-specific and does not purport to establish a new general rule or depart from the authorities cited.

Final procedural note: The Court proposed to list the matter for final orders on costs and gave the parties liberty to file short submissions on costs within the timetable set out in the judgment.