by Mark Henderson & Alison Pickup
Directions prohibiting the disclosure of documents or information
The applicable principles
32.1 The Tribunal has the power to make anonymity orders and orders prohibiting disclosure or publication of documents or information and to conduct hearings in private (see rules 13 and 27). Explore with your client in advance of the hearing whether any such application is appropriate. It is essential that any application be made in good time.
32.2 A decision to conduct the hearing in private has important consequences in terms of the Home Office's confidentiality policy. The IDIs state:
DISCLOSURE IN ASYLUM AND OTHER CASES POST APPEAL
In cases where an application for asylum, or leave to enter or remain has been refused and the Appellate Authority has upheld that decision, this information can usually be considered to be in the public domain and therefore to that extent is no longer covered by our obligations of confidentiality. However, consideration must still be given to whether the disclosure of that information is necessary in the light of the enquiry received.
If a caseworker has any doubts about whether or not information should be given they should seek advice from APU.
If an appeal hearing is heard "in camera" (i.e. hearing evidence in secret) then the matter has not passed into the public domain and details of that claim will not normally be disclosed, as the information will still be protected by our obligations of confidentiality. Any request for this information should be considered under FOIA however, in such cases we may be able to rely on sections 23, 24 or 38 of the FOIA [see chapter 25]. There will also be cases where the court/tribunal orders anonymity and this must be abided by. (IDIs, Chapter 24, Section 5: Disclosure of information relating to asylum applications)
32.3 You will have to warn your client of the risk that the Home Office may disclose information that she had assumed was confidential. You may also have to explain the policy to the judge. He may have no idea that the Home Office has claimed to be able to make public use not just of the determination, but also of whatever information and material the Home Office was given in support of the claim, regardless of whether it is mentioned in the determination.
32.4 By rule 13(1), the Tribunal may make an order prohibiting the disclosure or publication of 'any matter likely to lead members of the public to identify any person whom the Tribunal considers should not be identified'. Presidential Guidance Note (No. 2 of 2011) on 'Anonymity Directions in the FtT(IAC)' states that:
1. Applications for anonymity are made in the notice of appeal. There is a web link to the appropriate form for the appellant to complete. The appeal file will be marked accordingly. Either party may apply for anonymity at a later stage. Once an application is made the appeal will be anonymised and will remain so until further directions of the Tribunal.
2. All asylum appeals will be anonymised at case creation.
3. Once anonymity is granted the Tribunal will remove the appellant's name from all published documents that are in the public domain. The names will remain in full on the judicial cause list…
4. The power to direct anonymity is derived from article 8 ECHR and such directions should be made where public knowledge of the person or the case might impact on that person's protected rights. An interim anonymity direction is more likely to be appropriate during initial stages of an appeal to enable the parties to prepare their cases without interference or hindrance. At the CMR or at the substantive hearing the Immigration Judge should review the application for anonymity and direct whether the appellant should be granted anonymity. There may well be appeals where no application is made by either party but the court will self direct that anonymity should be granted.
5. Anonymity directions will often, if not always, be made where the appeal involves:-
i) a child or vulnerable person.
ii) evidence that the appeal concerns personal information about the lives of those under 18 and their welfare may be injured if such details are revealed and their names are known
iii) there is highly personal evidence in the appeal that should remain confidential
iv) there is a claim that the appellant would be at risk of harm and that by publishing their names and details it may cause them harm or put others at real risk of harm
v) publication of the determination may be used subsequently to support a sur place claim.
32.5 The Upper Tribunal Guidance Note 2013 No 1: Anonymity Orders explains that:
Asylum and other protection claims
13. It is the present practice of the First-tier Tribunal, Immigration and Asylum Chamber that an anonymity order is made in all appeals raising asylum or other international protection claims. An appellant will be identified by initial and country in such cases unless and until a judge has decided that anonymity is not necessary. UTIAC will follow the same general practice, with the result that anonymity will remain, unless a UT judge decides it is unnecessary.
14. Where details of witnesses or relatives abroad form part of a protection case, particular consideration should also be given as to whether publication of those details would be likely to cause serious harm.
It is rare for First-tier Tribunal determinations to enter the public domain, but not unheard of. However, the appeal may reach the Upper Tribunal. As explained in Upper Tribunal Guidance Note (para 4), all unreported Upper Tribunal determinations are now published on the internet and can be searched online by name. The Upper Tribunal may consider that anonymity is unnecessary even in an asylum case because it has not been requested, in which case the determination may be published on its website with the name of the appellant.
The Court of Appeal has decided to follow the universal practice observed by other European jurisdictions and to anonymise its judgments in cases involving asylum-seekers. It is satisfied that the publication of the names of appellants may create avoidable risks for them in the countries from which they have come....All applications and appeals raising asylum and immigration issues ... will therefore be anonymised in the court's internal records by assigning two initials and the country of origin (AB (Turkey), for instance) unless a judge gives a specific direction to contrary effect... If judgment is given in an asylum appeal ... there will be a presumption that the asylum-seeker's anonymity will be preserved unless the court gives a direction to contrary effect. On the other hand, there will be a presumption that judgments in immigration appeals will identify the name of the person seeking relief under the immigration laws unless the court gives a direction requiring anonymity.
The Administrative Court has no equivalent practice direction, although as indicated in the Practice Note, the Court of Appeal will also anonymise appeals from the Administrative Court which have an asylum element.
32.7 The Supreme Court is particularly concerned to ensure that anonymity is justified on a case by case basis which means that cases that had been anonymised by the Court of Appeal may not be anonymised in the Supreme Court. But even the Supreme Court will give considerable weight to the submission that an asylum seeker requires anonymity. In R (Kambadzi) v SSHD  UKSC 23 (an unlawful detention challenge involving an asylum seeker), the Supreme Court lifted the anonymity which had been given to the Zimbabwean claimant in the Administrative Court and Court of Appeal. Lord Hope said that:
6. There is no doubt that the court has power to make an anonymity order to restrain publication of a person named in its proceedings. In an extreme case, where he or his family are in peril of their lives or safety, this may help to secure his rights under articles 2 and 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms : In re Guardian News and Media Ltd  2 AC 697 , para 26. Those are the rights that are most likely to be relevant if he is seeking asylum. It may also be made to secure that other persons, such as the press, show respect for his private and family life under article 8 of the Convention. But in such cases the person's article 8 rights must be balanced against the article 10 rights of the press and the general public interest in his being identified: In re Guardian News and Media Ltd , para 76. As the decision in that case shows, however, much will depend on the circumstances of each case. It is no longer the case that all asylum seekers as a class are entitled to anonymity in this court. The making of such an order has to be justified.
7. I am not persuaded that an order for the appellant's anonymity is justified in this case. It must be recognised, of course, that lifting the order for his anonymity is not entirely without risk. It is rarely possible to predict with complete confidence what risks a failed asylum seeker will face when he is returned to his home country. But the position that the asylum seeker himself adopts will always be an important factor. He is likely to be in the best position to assess the risks and to say whether or not he needs anonymity for his protection...
32.7B It is therefore important to ensure that you request anonymity in the notice of appeal in cases where your client considers that it will reduce risk to her or her family, or where sensitive information about your client or any family members (especially if they are children) is likely to be disclosed in the course of the appeal. There is a separate form to request anonymity which should be provided with the appeal papers or can be downloaded from the Tribunal's website and submitted with your notice of appeal. If you did not complete the notice of appeal and anonymity was not requested at that stage, you should ensure at the CMRH and hearing stage that the appropriate anonymity direction is made.
32.8 The Presidential Guidance Note does not directly address the position of witnesses. The power under rule 13(1) to protect the identity of 'any person whom the Tribunal considers should not be identified' enables the Tribunal to direct that nothing be said in court which could identify a person to the public, and it is required by rule 13(10) to 'conduct proceedings and record its decisions and reasons appropriately so as not to undermine the effect of an order made under paragraph (1)...' This may be sufficient to assuage the concerns of a witness about giving evidence in public.
32.9 The power under rule 13(1) to protect the identity of any person enables the Tribunal to impose reporting restrictions under s.11 of the Contempt of Court Act 1981 (as the Presidential Guidance Note acknowledges). This provides that:
In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to be necessary for the purpose for which it was so withheld.
Section 19 of the same Act states that: 'court' includes any tribunal or body exercising the judicial power of the State...
32.10 The Guidance Note states that:
In most appeals a direction in the determination, which should be clearly identified, could be made:-
"The appellant be granted anonymity throughout these proceedings, unless and until a tribunal or court directs otherwise, and be referred to as [initials of appellant]. No report of these proceedings shall directly or indirectly identify him/her or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to a contempt of court."
There may be other instances where the entire determination should be anonymised and the immigration judge should ensure that the determination in itself, even if publicised, would not identify the appellant. Examples of this could be where the appellant has been working for the security services. In other appeals only some part of the determination may need to be anonymised. This may arise where it is in the public interest for the appellant to be named, for example in a serious criminal deportation appeal, but their address should not be disclosed to prevent harm to him or his family.
32.11 The Tribunal has been prepared, for example in Zimbabwean Country Guidance litigation, to make more extensive orders prohibiting the identification of multiple witnesses by reason of risk to them or relatives in their own country. These have covered not only factual witnesses but also experts who were concerned about the effect of giving evidence publicly upon their ability to operate in the country (including where the Home Office did not consent to the order being made). However, there must be a proper basis for making such an order. In SSHD v MN and KY (Somalia)  UKSC 30, the Supreme Court (referring to rule 14 of the Upper Tribunal Rules, which is equivalent to rule 13) observed that the rule:
...is helpful as emphasising that, in the tribunals as in the courts, openness is the norm, and that there needs to be special reason for departing from it, risk of serious personal harm being an obvious example.
32.11A Where an organisation is responsible for producing expert reports and produces sufficient evidence about the individuals involved in writing the reports to satisfy the Tribunal of the reliability of the report, the Court may permit the identity of those individuals to be withheld even from the opposing party, notwithstanding the resulting incompatibility with the Practice Directions, providing that there is "good reason for the anonymity and no basis...for thinking that disclosure of the names" would assist in challenging their evidence: RB (Somalia) v SSHD  EWCA Civ 277. In the Supreme Court in MN (Somalia)  UKSC 30, Lord Carnwath JSC said that:
...I agree that in respect of an individual expert witness its exercise requires special justification. Sprakab's policy of anonymity clearly would not absolve the tribunal of its duty to examine of itself the evidence said to justify a departure from the normal rule. However, in my view there were valid reasons for taking a less strict view in the present context. This was not anonymous evidence in the ordinary sense. The evidence was advanced, and the expertise claimed, on behalf of an organisation, based on the collaborative work of individuals with different skills within it. There was no doubt about the identity of the organisation, its working methods or the qualifications and experience of those involved in preparing its report. The names of the individuals were available to the tribunal, and could have been made known to the parties if it became necessary to do so, for example to pursue a particular line of cross-examination. Subject to appropriate safeguards, and to satisfying themselves that in the circumstances of the particular case no prejudice was caused, the Upper Tribunal were entitled to determine that there was no objection in principle to the course adopted.
32.12 There may, rarely, be cases in which exceptional steps will be justified to reassure a potential witness that his identity will be protected in order to persuade him to give evidence to the Tribunal. In W (Algeria) v SSHD  UKSC 8  2 AC 115, an appellant before SIAC argued that his removal to Algeria would expose him to a risk of a breach of Article 3 ECHR, and he sought to rely on the evidence of a witness who was in a position to give significant evidence about the reliability of assurances given by the Algerian government, but that witness was unwilling to give evidence save if he first received an absolute and irrevocable guarantee that his identity would never be divulged. The Supreme Court held that it was open to SIAC to make that prior direction before the Home Office was made aware of the identity of the witness. The Supreme Court emphasised that the circumstances in which it might be appropriate to grant such a request would be extremely rare, because it was inimical to the principles of open justice and procedural fairness. It was only in cases engaging Article 3 (and not other Articles of the Convention) that the balance could ever be struck in favour of making such an order. In R (B) v Westminster Magistrates' Court  UKSC 59  3 WLR 1336, the Supreme Court proceeded on the basis that as well as SIAC, such an order could be within the powers of the FTT hearing an asylum appeal (the rules considered were the 2005 Rules).
32.13 Be aware of the risk that the Home Office may not comply with an anonymity order, especially if it is making its own enquiries in the country of origin. In BK (Failed asylum seekers) DRC CG  UKAIT 00098, the Tribunal said that
Whilst we have found no intentional breach by the respondent of the Tribunal's order, we would hope that in future the respondent would ensure that Embassy officials asked to assist with inquiries relating to country guidance issues are made fully aware of any anonymity and confidentiality implications and that, in a case where they consider that response to requests for information may entail some degree of disclosure, the respondent approaches the Tribunal for clarification beforehand. (para 16)
32.13A Whereas rule 13(1) is aimed at anonymity orders, the remainder of rule 13 empowers it to issue directions prohibiting the disclosure of a document or information. It is clear that this power is intended to extend to prohibiting disclosure to a party including her representative, or permitting disclosure to the representative but not the party, ie his client. Rule 13(2-9) states that:
(2) The Tribunal may give a direction prohibiting the disclosure of a document or information to a person if—
(a) the Tribunal is satisfied that such disclosure would be likely to cause that person or some other person serious harm; and
(b) the Tribunal is satisfied, having regard to the interests of justice, that it is proportionate to give such a direction.
(3) If a party ("the first party") considers that the Tribunal should give a direction under paragraph (2) prohibiting the disclosure of a document or information to another party ("the second party"), the first party must
(a) exclude the relevant document or information from any documents to be provided to the second party; (b) provide to the Tribunal the excluded document or information, and the reason for its exclusion, so that the Tribunal may decide whether the document or information should be disclosed to the second party or should be the subject of a direction under paragraph (2).
(4) The Tribunal must conduct proceedings as appropriate in order to give effect to a direction given under paragraph (2).
(5) If the Tribunal gives a direction under paragraph (2) which prevents disclosure to a party who has appointed a representative, the Tribunal may give a direction that the documents or information be disclosed to that representative if the Tribunal is satisfied that—
(a) disclosure to the representative would be in the interests of the party; and
(b) the representative will act in accordance with paragraph (6).
(6) Documents or information disclosed to a representative in accordance with a direction under paragraph (5) must not be disclosed either directly or indirectly to any other person without the Tribunal's consent.
(7) The Tribunal may, on the application of a party or on its own initiative, give a direction that certain documents or information must or may be disclosed to the Tribunal on the basis that the Tribunal will not disclose such documents or information to other persons, or specified other persons.
(8) A party making an application for a direction under paragraph (7) may withhold the relevant documents or information from other parties until the Tribunal has granted or refused the application.
(9) In a case involving matters relating to national security, the Tribunal must ensure that information is not disclosed contrary to the interests of national security.
32.13 Note that a direction under rule 13(2) can only be made on the basis of a risk of serious harm either to the person from whom disclosure is withheld or some other person. The Home Office therefore cannot apply to prevent disclosure on the basis of some public interest which does not involve a risk of serious harm to a person. Note that the power to disclose to a representative but not to the party he is representing applies only if the Tribunal is satisfied that the representative will comply with the order. There may be circumstances in which the Home Office contends that a document or information should be withheld from an appellant because revealing the source may endanger that source in the country of origin, but considers that disclosure to the representative alone does not create that risk. While this rule confers power on the Tribuanl to receive the document or information from the Home Office without it being disclosed to the appellant, it says nothing about the circumstances in which fairness would permit such information or evidence to be received and relied on against the appellant.
32.13C By rule 13(10):
The Tribunal must conduct proceedings and record its decision and reasons appropriately so as not to undermine the effect of an order made under paragraph (1), a direction given under paragraph (2), (5) or (7) or the duty imposed by paragraph (9).
32.13D Though these provisions might be understood as permitting some form of closed procedure, that does not mean that a closed procedure could be permissible under general principles of fair procedure. While rule 13(9) places the Tribunal under a duty to ensure that information is not disclosed contrary to national security in a case involving national security, asylum and human rights appeals which would otherwise be heard in the FTT(IAC) which involve national security matters would ordinarily be certified by the Home Office so as to require the appeal be heard by SIAC (which has its own procedure rules). In CM (Zimbabwe) v SSHD  EWCA Civ 1303  Imm AR 326, the Court of Appeal approved a decision by the Upper Tribunal to appoint a PII Advocate in an asylum appeal to assist with a closed PII procedure and the Tribunal would have also been entitled to appoint a Special Advocate.
32.14 Rule 27 states:
27.—(1) Subject to the following paragraphs and to section 108 of the 2002 Act, all hearings must be held in public.
(2) The Tribunal may give a direction that a hearing, or part of it, is to be held in private.
(3) Where a hearing, or part of it, is to be held in private, the Tribunal may determine who is permitted to attend the hearing or part of it.
(4) The Tribunal may give a direction excluding from any hearing, or part of it—
(a) any person whose conduct the Tribunal considers is disrupting or is likely to disrupt the hearing;
(b) any person whose presence the Tribunal considers is likely to prevent another person from giving evidence or making submissions freely;
(c) any person who the Tribunal considers should be excluded in order to give effect to a direction under rule 13(2) (withholding a document or information likely to cause serious harm); or
(d) any person where the purpose of the hearing would be defeated by the attendance of that person.
(5) The Tribunal may give a direction excluding a witness from a hearing until that witness gives evidence.
32.15 The Guidance Note emphasises that an anonymity direction will not in itself result in a private hearing and that 'Exclusion of the public from a hearing should be comparatively rare as long as the identity of the appellant and/or their family is protected.'
32.16 In D (In the matter of D) 1 CCLR 190, Dyson J held that the same test applies both for conducting proceedings 'in camera' (i.e. excluding the public) and for imposing reporting restrictions although that "same test could be more easily satisfied where anonymity is sought than where what is applied for is that the proceedings be held in camera". That reflects the approach of the Tribunal in BK (Failed asylum seekers) DRC CG  UKAIT 00098, in which it emphasised that:
Quite exceptionally, much of the hearing of the case took place in camera. Hearings before this Tribunal must normally be in public and it is of cardinal importance that they should remain so. (para 2)
32.17 The test applied by Dyson J was "whether the proposed derogation from open justice is necessary in order to prevent a real risk that the administration of justice will be rendered impractical" and he also quoted the comments of Lord Donaldson MR in H v Ministry of Defence  2 All ER 834:
In order that the citizens be not deterred from seeking access to justice through courts it is occasionally necessary to protect them from the consequences of public scrutiny of evidence, and in particular medical evidence, of a nature that such scrutiny would prove not only embarrassing but positively damaging to them.
32.18 In D 1 CCLR 190 itself, the application was for an anonymity order under s.11 preventing publication or disclosure of any information that might reveal D's identity. D had advanced HIV disease, had overstayed, and had sought judicial review of his local authority's refusal to assist him under the National Assistance Act. Medical evidence indicated that public knowledge of his situation would endanger him psychologically (i.e. he would be at risk in the UK rather than only following an expulsion). Dyson J held that:
In my judgment, for the purposes of the present case, D has to show that there is a real risk that, without the protection of anonymity, he will suffer real significant physical or mental harm.
32.19 He considered that the medical evidence before him met that test. This highlights the need to ask your experts to address the question if you intend to rely on medical grounds as justifying a private hearing.
32.20 The leading authority dealing with anonymity orders by reason of risk to the appellant following expulsion is the decision of the Supreme Court in A v BBC  UKSC 25  2 WLR 1243 which involved an application by the BBC to set aside an anonymity order. Lord Reed, giving the only judgment, explained the general approach as follows:
47 ... the right to receive and impart information, which is guaranteed by article 10(1) , may be engaged where measures are taken in relation to court proceedings to prevent information from becoming publicly available. The right guaranteed by article 10(1) is however qualified by article 10(2) ...
48 These qualifications reflect the fact that freedom of expression may conflict with other important values, including the rights to life and to bodily security protected by articles 2 and 3 of the Convention, the integrity of legal proceedings and the rights of litigants and accused persons, protected by article 6 , and the right to respect for private life, protected by article 8 . Where there is a conflict between the right of the media to report legal proceedings and the rights of litigants or others under a guarantee which is itself qualified, such as article 8 , a balance must be struck, so as to ensure that any restriction upon the rights of the media, on the one hand, or of the litigants or third parties, on the other hand, is proportionate in the circumstances. Lord Steyn in In re S (A Child) (Identification: Restrictions on Publication)  UKHL 47;  1 AC 593 , and by Lord Rodger in In re Guardian News and Media Ltd  UKSC 1;  2 AC 697 .
49 Where the conflict is between the media's rights under article 10 and an unqualified right of some other party, such as the rights guaranteed by articles 2, 3 and 6(1) , there can be no derogation from the latter. Care must nevertheless be taken to ensure that the extent of the interference with the media's rights is no greater than is necessary. The need for such care reflects the important role of the media in a democratic society in scrutinising the administration of justice generally, as well as their role as the conduit of information about particular proceedings which may be of public interest.
50 Article 10(2) specifically identifies "maintaining the authority and impartiality of the judiciary" as a legitimate aim which may justify interference with freedom of expression.
32.20A Note in particular there is no balancing exercise to be conducted between Article 3 and Article 10 in contrast to the Article 8/ Article 10 balancing exercise. However, the interference with freedom of expression must still be the least possible in order to comply with Article 3. Of course, the Article 3 risk could, alternatively, be addressed by permitting the BBC to publish but allowing A to remain in the UK because of the resulting risk. However, Lord Reed said that given that the Tribunal had determined that A was not at risk on return on the basis that he would be protected by an anonymity order, then to permit identification "would have subverted the basis of the tribunal's decision to authorise his deportation" (para 73). He stated that:
76... The interference with [the BBC's] freedom of expression was necessary to maintain the authority and impartiality of the judiciary, since its publication of A's identity in connection with the proposed deportation would have completely undermined the judicial review proceedings. In these circumstances, where the publication of A's identity in connection with the proceedings might well have rendered those proceedings pointless, the interference with the BBC's article 10 rights was unavoidable if the authority and impartiality of the judiciary, within the meaning of article 10(2) , were to be maintained. Put shortly, the order had to be made if the court was to do its job, notwithstanding the resulting restriction upon the BBC's capacity to do its job.
32.21 Any external physical risk to the appellant, a witness, or other persons, whether in this country or the country of origin, should justify an anonymity order so long as the risk is a real one. You will have to show, if applicable, that the risk cannot be addressed simply by an anonymity order without also requiring a private hearing. You might, for example, present expert evidence about any monitoring by the authorities in the country of origin of the activities of dissidents abroad which might involve monitoring appeals.
32.22 In cases where you seek a private hearing in order to protect the private life of the appellant or a witness, or the interests of a minor, the protection of private life will have to be balanced under article 8(2) with open justice, and the party's rights under article 8 balanced with the rights of the media to freedom of speech under article 10 (see para 48 of A v BBC  UKSC 25 above).
32.23 Even in respect of the 'interests of a minor', a similar balancing exercise will be required (In re S (A Child)  UKHL 47  1 AC 593). Guidance Note No. 8 on Unaccompanied Children (one of the 'Guidance Notes for the former AIT that are now relevant to FTTIAC' on the Tribunal's website) states that:
Consider whether all future hearings should be held in private, in order to help the child to feel at ease. An order should normally be made to exclude members of the public from the hearing room, in accordance with rule 54(3)(b)
The reference is to r. 54(3)(b) of the 2005 Procedure Rules, which empowered the Tribunal to exclude the public from a hearing "if it is necessary ... to protect the private life of a party or the interests of a minor".
32.24 Joint Presidential Guidance Note No. 2 of 2010: Child, vulnerable adult and sensitive appellant guidance similarly states under "Hearing evidence" (para 10.1):
v. Exclude members of the public when a child is giving evidence
vi. Consider restricting or barring members of the public/family members in other cases to enable oral evidence to be given freely and without covert intimidation. If, from reading the papers you suspect abuse or trafficking, you should consider excluding individuals not associated with the presentation of the case to enable the witness to give evidence unhindered. You may notice individuals in the Tribunal who have no apparent bearing on the hearing and you may consider closing the hearing to the public to enable evidence to be given, even if you do not suspect trauma.
32.26 If the Tribunal agrees to an application to exclude members of the public under rule27, you should ensure that measures have been taken to prevent the public entering before the hearing proper starts. The court clerk usually places a notice on the door. If you have a rule 27 application that has not yet been considered, this should obviously be the first item you raise at the hearing.