Understanding case law

It’s difficult enough understanding a court judgment in your own case or for someone you know, and understanding important case law is even tricker.  Other case law – country guidance cases, or important cases that set out the right procedure or application of legal principles or policies – may have important implications in your case or a case you are involved in.  Without knowing the case well, and only having the written judgment to go on, it can be difficult to know what a significant case means and how you may be able to apply it to your situation.

You can find transcripts of all important judgments online, for example on BAILII.

Written judgments can be very long, and can contain long-winded technical arguments, and so it’s important to try and decipher the content of these judgments to get to the important points and to make sure you have understood their significance correctly.

A useful thing to do can be to look for analyses online from lawyers, to see what they think the case means. Garden Court Chambers produce these, as does the Free Movement blog. These analyses can very legalistic though as they are not primarily intended for non-laywers –  we will be putting simplified explanations of some important cases (for non-lawyers) on this legal resources blog – keep an eye on it, as it’s a real priority for us this year!

This is also the kind of thing friendly lawyers can help with – without giving specific legal advice or taking on someone’s case, they could explain quickly what certain case law means.

Deciphering case law

Some of the very basics of how written judgments are presented can seem confusing.  If you are not used to reading caselaw, just the front page of the important case of JB Jamaica could be off-putting.  Below you will find some beginners’ tips on decoding some of the technical parts of caselaw language.  This will allow you to get into the meat of the case, and see if it is important for you or someone you know.

This blog post will use the important case of JB Jamaica as an example.  JB Jamaica looks at two big issues – whether Jamaica should be on the clearly unfounded/White List, and whether JB’s case should have been put into the Detained Fast Track system.

 JB Jamaica heading

  • ‘Neutral citations’ are widely used to refer to caselaw. These are a fairly new form of citation. Before these were used, each legal journal had their own way of citing cases, and there was a hierarchy of journals – meaning if a case was in a more important journal, it was thought to be more important. There is a different hierarchy in immigration and asylum cases (see below on country guidance cases and starred cases).
  • The form of these citations are  [Year] Court … Case number.  For the First and Upper Tier Tribunals, the case number comes before the abbreviation for the Immigration and Asylum Chamber of the Tribunal.

 


In the example of JB Jamaica, the citation is: neutral citation The case was promulgated in 2013, the case was heard at the England and Wales Court of Appeal, Civil division (as opposed to criminal), and it’s the 666 case of that division. Other court abbreviations: EWSC Supreme Court EWHL House of Lords (if case was heard prior to Supreme Court ) EWHC High Court (Admin Court) UKUT [case no.] (IAC) Upper-tier Tribunal (Immigration & Asylum Chamber) UKFTT [case no] (IAC) First-tier Tribunal (Immigration & Asylum Chamber) CSIH Court of Session, Inner House (Scotland) CSOH Court of Session, Outer House (Scotland) NICA Court of Appeal, Northern Ireland NIQB High Court of Justice in Northern Ireland, Queen’s Bench Division For more information on the structure of the court system, including in Scotland and Northern Ireland, see our toolkit.


court history

Look at where the case was heard. What might happen next for the case?  Are the Home Office appealing the decision if it was a positive judgment for the asylum seeker/immigration applicant?

Also check that you’re reading the most recent decision – a case in the higher courts will have gone through several courts and it’s easy to read a previous judgment by mistake (for example, you might be reading the older negative judgment from the Upper Tribunal, when in fact there’s been a positive one from the Court of Appeal since then which is what you should be reading).


between The case is between “The Queen (on the application of JB (Jamaica)) and the Secretary of State for the Home Office. You may see this referred to in some citations as ‘R’ (short for Regina, meaning the Queen) and SSHD (Secretary of State for the Home Department).

Headlines

Sometimes there are helpful ‘headlines’ summarising the court’s decision at the start of the judgment, after the case citations etc. Sometimes these are the final paragraphs of the judgement. There are none of these in the judgment of JB Jamaica used as an example here.

Take confusing sections a step at a time

A good example of the extremely confusing language used in judgements, especially those of cases that have gone through several different courts is (at Paragraph 20 of the judgement):

I would dismiss the appeal against the judge’s refusal to declare unlawful the inclusion of Jamaica among the states listed in section 94(4) of the Act. Lord Justice Moore-Bick

To understand these sentences, it may be helpful to work backwards:

1 – Jamaica was included in the states listed in section 94(4) of the Act (the ‘White List’) 2 – JB’s lawyers said this was unlawful 3 – Judge refused to say it was unlawful – so said it was lawful (at High Court) 4 – High Court judge saying it was lawful to include Jamaica in White List is being appealed at the Court of Appeal 5 – this judge at Court of Appeal says they would dismiss the appeal – so they think the High Court judge was right to refuse to say it was unlawful → → this Court of Appeal judge agrees with High Court judge in saying inclusion of Jamaica in White List is lawful.

AND remember that this is just one of three judge’s opinions. This judge would dismiss the appeal, but the majority of judges would allow it (2/3), so it was allowed. JB Jamaica is allowed because the two other judges hearing it don’t agree with Lord Justice Moore-Bick.

Make sure you know which judge’s opinion you are reading – these are not always clearly demarcated in the written judgments.

Country guidance cases, starred cases, unreported/reported cases

There is a hierarchy of caselaw – the higher up a case was decided in the court system, the more likely it is to have implications for lots of other asylum and immigration cases. A Supreme Court decision, for example, is likely to affect other cases with similar circumstances and cannot be ignored by the Home Office or courts hearing a case you’re involved in.

Within caselaw from lower courts, there is also a hierarchy.

Country guidance cases

These are asylum appeals chosen (before a decision is made) by the immigration tribunal to give legal guidance for a particular country, or a particular group of people in a particular country. The decisions in these cases are assumed to be based on the best possible evidence about that country at that time. Until there are significant changes in that country, a country guidance decision sets out the law for other asylum-seekers from that country.

You might wish to use these to demonstrate that a particular case fits the pattern set out in a country guidance case (e.g. persecution of lesbians in Uganda). Alternatively, if a country guidance case is being used to say somewhere or a group of people are generally safe, you might need to look at establishing how a particular case is different from the general picture described in a country guidance case.

The country guidance system isn’t as rigid as ‘precedent’ – it can accommodate individual cases, changes, fresh evidence and other circumstances. In cases following country guidance decisions, it might be argued that there is new evidence that has emerged since the country guidance case was heard that means the country guidance no longer reflects the risk.

You can find recent country guidance cases on the Tribunal website.

Starred cases

The Tribunal’s Practice Directions state that

“Reported determinations of the Tribunal and of the IAT which are “starred” shall be treated by the Tribunal as authoritative in respect of the matter to which the “starring” relates, unless inconsistent with other authority that is binding on the Tribunal.”

There aren’t many of them and they are generally about procedural matters, legal points, definitions etc.  They are also likely to change less frequently than country guidance, as those cases depend on events in the country of origin.

Read more in Alison Pickup and Mark Henderson’s Best Practice Guide to Asylum and Human Rights Appeals

Unreported cases

These are cases that don’t appear in law journals or online directories such as BAILII – lawyers involved in the cases might refer to them. Technically unreported cases can’t be cited in other cases at the First-Tier Tribunal without special permission, but it is unlikely that an unreported First Tier Tribunal case will have bearing on other cases anyway.

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