Updated: Oct 18, 2020
Since 2002, the UK immigration and asylum tribunals have developed a system of Country Guidance (CG) determinations. The Upper Tribunal Immigration and Asylum Chamber (UT) produces extensive decisions on carefully selected cases, making binding findings of fact as to particular aspects of the political and humanitarian situation in a country of origin. The UT and the First Tier Tribunal Immigration and Asylum Chamber (FTT) will thereafter follow that precedent, until such a time that a new CG determination comes along. In this jurisdiction at least, CG determinations are unique in that they provide factual rather than legal precedent. At its best, this system is efficient and effective. It allows the UT, the FTT, Home Office decision-makers and applicants in asylum and subsidiary protection cases to rely on the synthesised evidence of eminent experts, government sources, UNHCR reports, and NGO and news reports, without the expense of case-by-case re-sourcing of general country information. However, problems arise where CG determinations become out-of-date. Applicants can be faced with an old behemoth to overcome, requiring strong grounds supported by cogent evidence for departing from that CG. It is not unthinkable that unrepresented applicants in particular might then find themselves refused protection on the basis of an inaccurate assessment of their country’s conditions.
Few will have felt this more keenly in the UK than Palestinian applicants for subsidiary protection. Their primary CG determination remains HS (Palestinian - return to Gaza)  UKUT 124, which found that ‘the conditions in Gaza are not such as to amount to persecution or breach of the human rights of returnees or place them in need of international protection’ . This decision was made further to submissions heard in 2010, and so was arguably already more than a year out-of-date by the time it was handed down.
For much of the Palestinian diaspora in Syria, Lebanon and elsewhere, fortunes have fared even worse. Things were bad in 2011, but they weren’t this bad.
This is significant because a lot has changed in Palestine since 2009. The 2014, 2017 and 2018 airstrikes caused over 1,000 civilian deaths and thousands of casualties. Infrastructure was badly damaged, and tens of thousands of people displaced. Meanwhile the impact of the blockade has deepened through cumulation. Poverty levels and food insecurity have grown significantly. There has been a decline in access to essential services including healthcare, education and housing. Piped water is undrinkable and electricity so restricted that even hospitals and schools can go without for up to eleven hours per day. For much of the Palestinian diaspora in Syria, Lebanon and elsewhere, fortunes have fared even worse. Things were bad in 2011, but they weren’t this bad. Subsidiary (or humanitarian) protection is afforded to those who require asylum-like protection, but who do not fall into any categories set out in the 1951 Convention Relating to the Status of Refugees, Article 1. That is, the reason they need protection is neither their race, religion, nationality, political opinion, nor their membership of a particular social group. When a person is seeking subsidiary protection in the UK, they will have to show that there are substantial grounds for believing that, if returned, they would face a real risk of suffering serious harm. This is set out in the EU Qualification Directive, Articles 2(f) and 15, and then again in the UK Immigration Rules, at r.339C and r.399CA. One definition of serious harm is given in both sources as ‘torture or inhuman or degrading treatment or punishment’, a precise repetition of ECHR, Article 3. Given how much has changed and developed since 2011, it is at least arguable that conditions in Palestine now meet this threshold. This is especially so given the ECtHR’s decision in Sufi and Elmi v UK  ECHR 1045, when it was found that if the circumstances said to engage Article 3 are predominantly due to the direct and indirect actions of the parties to the conflict, then applicants only need to establish the ‘minimum level of severity’ under Article 3, rather than the former ‘very exceptional circumstances’ test for an Article 3 breach found in N v UK - 26565/05  ECHR 453 (27 May 2008). This was applied directly to Palestine in MI (Palestine) v SSHD  EWCA Civ 1782, confirming that the conditions there are due to the actions of Israel, the Palestinian Authority, Hamas and Egypt in various and ever-fluctuating proportions.
It is only the UT who can make CG determinations. If cases like this aren’t allowed to get that far, Palestinian applicants will be left struggling against an outdated and unfavourable CG precedent for even longer.
In the case of one Gazan family whom our offices represent, an unreported 2019 FTT decision held that ‘the humanitarian situation found at - of HS has worsened to a very severe degree in the near-decade since the production of the evidence on which it was based’. Subsidiary protection was therefore granted, with the express and unequivocal intention of departing from HS.
Many if not most FTT judges, faced with the same facts, might have taken the easier path, and followed HS. It takes judicial confidence to depart from a CG determination, opening up a clear ground for appeal, and an expectation of deep UT scrutiny. The FTT judge in this case prepared an extensive and meticulous judgment, amounting to a clear challenge to prove the continued accuracy and value of HS. However, no appeal ever came. The Home Office did not rise to the FTT’s challenge, rather they quietly implemented the decision, impliedly untroubled by the clear subversion of precedent in the appellants’ favour. It was a conflicted moment for the Gazan family. They had benefitted from an exception, an individual stroke of luck, but there would be no new precedent extending their personal relief to those exactly like them. If this is happening regularly, with challenges to HS tactically blocked from the court of record and the possibility of wider applicability to other Palestinians seeking protection, it is a troubling situation. It is only the UT who can make CG determinations. If cases like this aren’t allowed to get that far, Palestinian applicants will be left struggling against an outdated and unfavourable CG precedent for even longer. After a decade of airstrikes and attrition, it is beginning to look like the UK Home Office does not want to prompt a new CG determination that would undoubtably make many Palestinians’ applications for protection far less onerous. Lucy Katko is a caseworker at Cromwell Wilkes Ltd, an Immigration, Asylum and Nationality firm based in Hammersmith, London.