by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup and Monika Nollet of Asylum Aid
~ Revised 2023 Edition ~
Directions prohibiting the disclosure of documents or information
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 caseworker guidance entitled 'Disclosure and confidentiality of information in asylum claims' states:
DISCLOSURE IN ASYLUM AND OTHER CASES POST APPEAL
In cases where claims for asylum have been refused and the Appellate Authority have 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, you must consider whether the disclosure of that information is necessary in the light of the enquiry received. If you have any doubts about whether or not information should be given they should seek advice from a senior caseworker.
If an appeal is heard 'in camera', the evidence is heard in a closed court which is not open to the public. This means that the matter has not passed into the public domain and details of those claims must not be disclosed or mentioned in relation to other cases, as the information will still be protected by our obligations of confidentiality - unless there are specific facts that justify the disclosure under overriding public interest or lawful justification. When an appeal has been heard 'in camera' this will normally be noted on the determination. Any request for this information should be considered under the Freedom of Information Act 2000 (FOIA) but in such cases it may be appropriate to rely on exemptions of the FOIA. There will also be cases where the court or tribunal orders anonymity and this must be abided by. Breaching an anonymity order is a contempt of court. Therefore, if information covered by an anonymity order needs to be disclosed an application would have to be made to the Court for the order to be lifted. (p 14)
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.
32.3A Clearly, however, irrespective of any published statement of its duties, the Home Office has certain confidentiality obligations under the Data Protection Act 2018 and Article 8 ECHR. Successful damages claims have been brought in circumstances where, for example, the Home Office has shared documents corroborating an asylum-seeker's claims of persecution with the state in question or where the Home Office mistakenly published on its website the personal data of six asylum seekers in breach of the Data Protection Act (TLT and ors v SSHD and the Home Office  EWHC 2217 (QB)). The Tribunal has held that there is a general duty of confidentiality during the process of examining a protection claim, including during the appellate procedure: VT (Article 22 Procedures Directive - confidentiality) Sri Lanka  UKUT 00368 (IAC). The headnote at (ii) says:
(ii) There is a general duty of confidentiality during the process of examining a protection claim, including appellate and judicial review proceedings. If it is considered necessary to make an inquiry in the country of origin the country of asylum must obtain the applicant's written consent. Disclosure of confidential information without consent is only justified in limited and exceptional circumstances, such as combating terrorism.
32.3B The Tribunal clarified the extent of the obligation in PA (protection claim: respondent's enquiries; bias) Bangladesh  UKUT 0337 (IAC) in which it was said:
(1) There is no general legal requirement on the Secretary of State to obtain the consent of an applicant for international protection before making an inquiry about the applicant in the applicant's country of origin. The decision in VT (Article 22 Procedures Directive – confidentiality) Sri Lanka  UKUT 00368 (IAC) is not to be read as holding to the contrary.
(2) The United Kingdom's actual legal obligations in this area are contained in Article 22 of the Procedures Directive (2005/85/EC), as given effect in paragraph 339IA of the Immigration Rules. So far as obtaining information is concerned, these provisions prohibit making such an inquiry in a manner that would result in alleged actors of persecution being directly informed of the fact that that an application for international protection has been made, which would jeopardise the applicant's (or his family's) physical integrity, liberty or security.
(3) If information is obtained in a way that has such an effect, the fact that the applicant may have given consent will not affect the fact that there is a breach of Article 22.
32.3C In respect of data protection laws, in CJ (international video-link hearing: data protection) Jamaica  UKUT 00126 (IAC) (and upheld by the Court of Appeal in Johnson v Secretary of State for the Home Department  EWCA Civ 1032) it was held that there was no breach in respect of videolink arrangements between the British High Commission in Kingston, Jamaica and the Tribunal's hearing centre in the United Kingdom:
(1) The arrangements made to enable the appellant to give evidence in his human rights appeal by video link between the British High Commission in Kingston, Jamaica and the Tribunal's hearing centre in the United Kingdom did not involve the transfer of data to a third country, for the purposes of the General Data Protection Regulation ((EU) 2016/679).
(2) Even if that were not the case, the transfer was lawful under the derogation in Article 49(1)(e) of the Regulation (transfer necessary for establishment, exercise or defence of legal claims).
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 2022: 'Anonymity Orders and Directions regarding the use of documents and information in the FTTIAC' observes that in recent years 'there has been some concern… that more anonymity orders are made by the Tribunal than are necessary and that the terms of these orders are wider in scope than they need be' (para 11). It sets out the principle of open justice and the need to weigh that against competing interests (paras 3-9). It states that 'where details of witnesses or relatives abroad form part of a protection case, particular care will be required in assessing whether publication of those details would be likely to cause serious harm' (para 9). It says the following specifically on protection appeals:
22. All protection appeals are given anonymity at case creation at the National Business Centre, to avoid any risk to an appellant arising from publication of details of the protection claim. The effect of this anonymity order, which may be described as an interim order, is that the appellant's name is removed from any published documents relating to the case, including the published court lists, to which there is access on the internet or worldwide web. It is important for judges to consider whether the interim anonymity order made at case creation should be continued. The Upper Tribunal (Immigration and Asylum Chamber) follows the same general practice, with the result that an anonymity order will generally remain in protection appeals, unless a judge decides that anonymity is no longer necessary. Even where a protection appeal is dismissed, it may be necessary to continue an anonymity order, in case of an onward appeal…
23. Reasons should be given for either making or not making an anonymity order but these may be brief. Occasionally, one of the parties might raise a particular issue or objection to an order which will need to be addressed. If judges decide in the course of the hearing to make an anonymity order under rule 13(1), or to make an order prohibiting disclosure under rule 13(2), brief reasons must be given there and then, with an explanation of the impact of the order to those present. If there are members of the public present, or members of the press, they should be informed or reminded of any existing anonymity order and its terms. It is important to read out any anonymity order in place at the beginning of a hearing, so that the terms and scope are clear.
32.4A The Guidance Note (paras 14-17) also observes that anonymity is required under certain statutes. In particular:
• s1 of the Sexual Offences (Amendment) Act 1992 (as amended) requires anonymity for a victim or alleged victim of a sexual offence listed in s2 of that Act. The list includes rape and many offences under the provisions of the Sexual Offences Act 1965, including indecent assault on a woman and indecent assault on a man.
• s2(1)(db) of Sexual Offences (Amendment) Act 1992 (as amended) requires anonymity for a person who has claimed to have been trafficked contrary to s2 of the Modern Slavery Act 2015.
• S4A of and schedule 1 to the Female Genital Mutilation Act 2003 require anonymity for a person against whom a female genital mutilation offence is alleged to have been committed.
32.4B The Guidance Note (para 18) requires judges to undertaken 'a careful assessment… in all cases concerning victims or alleged victims of sexual offences falling within scope and cases where an allegation of trafficking is made and anonymity may well be required.'
32.4C The Guidance Note says the following on the position of children:
12. The identity of children, whether they are appellants, the children of an appellant or a witness or otherwise concerned in the appeal, will not normally need to be disclosed nor will their school, the names of their teachers or any social worker or, in exceptional cases, health professional with whom they are concerned, unless there are good reasons to do so in the interests of open justice. Where the identity of a child is not to be revealed, the name and address of a parent other than the appellant may also need to be withheld to preserve the anonymity of a child.
13. There may be other cases where the Tribunal should make an anonymity order to protect the identity of a child or vulnerable person. It will be necessary to do so, for example, where information about a child or family proceedings concerning a child has been supplied by the family court under the terms of the joint protocol between the President of the Family Division and the Senior President of Tribunals, dated 19th July 2013. Section 97(2) of the Children Act 1989 requires anonymity for a child subject to family law proceedings and includes a prohibition on the disclosure of any information that might identify the address or school of that child. There are equivalent provisions under section 170 of the Children (Northern Ireland) Order 1995. Similar protection for children in Scotland is found under section 182 of the Children's Hearings (Scotland) Act 2011. Section 49 of the Children and Young Persons Act 1933 prohibits publication of the name, address, school or any other matter likely to identify a person under 18 as being concerned in proceedings before the youth courts. A child or young person is concerned in proceedings if they are a victim, witness or defendant.
32.4D In general terms, the Guidance Note encourages judges to actively engage with anonymity in each case, including in protection cases and to consider alternatives to anonymity orders, such as removing sensitive information from the decision (eg not including precise information as to names, locations and dates of birth) or to including precise information within an appendix which is subject to an anonymity order whereas the judgment itself is not (paras 33-24).
32.5 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. 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. In Cokaj (anonymity orders: jurisdiction and ambit)  UKUT 00202 (IAC), the Upper Tribunal held that it – as a higher court or Tribunal – may impose or discharge an anonymity order that has effect in respect of the entirety of the proceedings under s82 of the 2002 Act, that is, including the first instance First-tier determination.
32.5A In Smith (appealable decisions; PTA requirements; anonymity)  UKUT 00216 (IAC) the Tribunal gave guidance on anonymity orders in the IAC, stating that there was no special rule for immigration appeals. In that case, concerning an Article 8 deportation appeal, the First-tier judge had stated that it was "in the interests of justice" to make an anonymity direction but had provided no explanation of his reasoning. The Upper Tribunal declined to grant anonymity on appeal and gave the following guidance (at ):
… The starting point is that open justice is a fundamental principle of our legal system. Any derogation from that principle should be allowed only to the extent that is necessary in order to secure the proper administration of justice. As a result, just as is the case in other jurisdictions, the parties in immigration proceedings should be named, unless doing so would cause harm, or create the risk of harm, of such a nature as to require derogation from the basic principle. In most cases involving international protection, anonymity of an individual will be required, lest the proceedings themselves should aggravate or give rise to such a risk. That will normally be the case throughout the course of the proceedings, including any appeals.
In application to the appellant's claim for anonymity, the Tribunal said (at ):
The claimant would, no doubt, prefer it if our decision did not refer to him by name. He is not, however, asserting a risk of harm to himself, as in the case of a person seeking international protection. Irrespective of whether the Article 8 rights of the claimant or any other person are in due course found to be of such a kind as to defeat the Secretary of State's attempt to remove the claimant, the public has a right to know about the criminal behaviour of the claimant, which led to the decision that he should be deported. There is also a strong public interest in recording the fact that the claimant has repeatedly behaved in flagrant contravention of what is, on its face, a valid deportation order.
32.5B That criminal offences or other socially embarrassing behaviour should not give rise to grounds for anonymity is now stated in terms in the Presidential Guidance Note (para 9). It also directs that the revelation of a medical condition would not usually require an anonymity direction unless disclosure of the fact of such a condition gives rise to a real likelihood of harm or the Tribunal has required confidential medical details to be provided to it (para 9). However, in these circumstances, the Guidance Note raises the possibility of considering the use of Rule 27 which permits the Tribunal to direct a hearing, or part of it, is held in private (see further para 32.14 below).
32.6 The practice in the Court of Appeal is set out in Practice Guidance from 23 March 2022:
5. The Court of Appeal will continue its long-standing practice of anonymising judgments in most appeals raising asylum or other international protection claims, provided it is satisfied that the publication of the names of appellants in such cases may create avoidable risks for them in the countries from which they have come.
6. Judgments will also be anonymised where there is a statutory prohibition on naming an individual, for example, a victim of a sexual offence or a victim of trafficking (sections 1 and 2 of the Sexual Offences Amendment Act 1992, as amended) or a child subject to family law proceedings (section 97(2) of the Children Act 1989).
7. When a new immigration or asylum case is issued in the Court of Appeal, it will initially be anonymised if it was anonymised in the lower court or Tribunal or involves a protection claim. Where a decision is required on permission to appeal the judge granting permission will consider whether the initial anonymisation should be continued.
8. Hearings will continue to take place in open court unless the court otherwise directs. Where judgment is given in an anonymised appeal (or a permission to appeal application where the judgment is released from the usual restriction on citation), the Court will reassess at that stage whether continued anonymity is required.
9. Where the case was anonymised in the lower court or Tribunal any continued anonymisation in the Court of Appeal will be in the same form. Otherwise, anonymised cases will be assigned three random initials and the country of origin, for example, XYZ (Turkey), unless a judge gives a specific direction to contrary effect. Such cases will then be listed and referred to solely by reference to this "name" and the reference number allocated to them in the Civil Appeals Office.
The Administrative Court has no equivalent practice direction, although as indicated in the Practice Guidance, 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. If anonymity was not requested at the outset, you should ensure at the hearing stage that the appropriate anonymity direction is made.
32.7C The Tribunal may make an anonymity order of its own motion (without any application having been made or notice given). Given that this effectively precludes appellants from discussing their cases with the media (which may, in some circumstances, be desirable), your client may wish to challenge the order. Whilst there is no formal mechanism for the challenge to anonymity orders, it arguably may be done in several ways, including seeking a further direction to lift the order, seeking permission to appeal or, if in the First-tier, applying under rule 32 of the Procedure Rules to set aside the part of the determination imposing anonymity.
32.8 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 FTT Anonymity Guidance states that:
20. A suitable formulation when making an anonymity order is as follows:
"Pursuant to rule 13(1)(b) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, until this appeal is finally determined the appellant (and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant (and/or other person). Failure to comply with this order could amount to a contempt of court."
21. It will also usually be appropriate to include, drawing on case management powers under rule 4 of the Procedure Rules, the following:
"This order does not restrict disclosure of information relating to this appeal to law enforcement or regulatory agencies, the Bar Council, the Solicitors Regulatory Authority, the Law Society, OISC, or where disclosure is otherwise required by law."
22…A suitable formulation to be added to the suggestions in paragraphs 20 and 21 above, which may be useful in all cases where an anonymity order is made (and not just protection appeals) is as follows:
"Unless the Upper Tribunal or a court directs otherwise, this order expires when the appeal is finally determined i.e. when the appellant becomes appeals rights exhausted at the conclusion of the proceedings, including any onward appeal to the Upper Tribunal or court, or when the appeal is abandoned, withdrawn (or treated as withdrawn) or lapses. If there is an onward appeal or challenge, an application to amend or vary the anonymity order must be made to the Upper Tribunal or court concerned."
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, as is emphasised in the FTT Anonymity Guidance and in the case law 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).
32.12A It is noteworthy that the Upper Tribunal has confirmed that both it and the First-tier have the power to make an order anonymising legal representatives: YSA (Anonymity of Barristers)  UKUT 00074 (IAC), however, this is exercised extremely rarely. On the facts of YSA, where the Tribunal accepted that there were media reports which may lead readers to form an adverse view of the barristers acting on behalf of their client, and in a context of threats and acts of violence against lawyers acting for appellants in immigration appeals, it held that the public interest in open court prevailed.
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)
32.13AA In YSA (Committal for contempt by media)  UKUT 00075 (IAC), the Upper Tribunal confirmed that it had jurisdiction in contempt of court (by way of s25 of the of the Tribunals Courts and Enforcements Act 2007) insofar as it is 'incidental to the Tribunal's functions' (para 24). It found that the enforcement of an anonymity order would be incidental to the Upper Tribunal's functions in circumstances where it had made the order itself and assumed, whilst noting the position was not entirely free from doubt, that the same would apply to an order made by the First-tier in proceedings that continue in the Upper Tribunal by way of appeal (para 24). The Tribunal held that in the absence of specific procedural rules on contempt, it should follow the procedure in Part 81 of the CPR which requires permission for an application for contempt to be brought where the application does not relate to 'existing' proceedings. In that case, the alleged breach of the First-tier's anonymity order in proceedings that were then pending before the Upper Tribunal was held to relate to 'existing proceedings' but was rejected because the procedure in Part 81 of the CPR had not been followed. This judgment, however, does not clarify the position on contempt in proceedings in the First-tier Tribunal that do not progress on onward appeal to the Upper Tribunal. In the absence of conferral of a contempt jurisdiction by statute, the First-tier Tribunal does not have a contempt jurisdiction at common law.
32.13A Whereas rule 13(1) is aimed at anonymity orders, the remainder of rule 13 empowers the Tribunal 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.
32.13B 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. In R (ILPA) v Tribunal Procedure Committee  EWHC 218 (Admin), Blake J accepted as correct the Lord Chancellor's submission that rule 13(7) does not permit the Tribunal to receive documents which are not disclosed to all other parties, but only to direct that they may not be disclosed to any non-parties. 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. In upholding the lawfulness of the Rule, Blake J held that the 'serious harm' test in rule 13(2):
…must be limited to significant physical and mental suffering; harm to commercial or privacy interests, distress or anxiety is not enough. This would need to be established by credible information rather than mere assertion. 'Likely' involves establishing something higher than a mere risk or possibility of harm although is less than the application of the ordinary civil standard (see Cream Holdings v Bannerjee  UKHL 4;  1 AC 253 per Lord Nicholls at  to  and particularly at  citing In re H (Minors)(Sexual Abuse: Standard of Proof)  AC 563, 585). It will be an unusual case where the evidence meets this standard, and if it does, the judge must still consider the second requirement whether the making of the direction is consistent with the interests of justice and proportionate.
The power in rule 13(5) 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. The disclosure of documents to a representative which he is not then permitted to disclose to his client raises serious ethical issues and you should be very cautious about agreeing to such disclosure, and should only do so with the express and informed consent of your client. As explained by Blake J, the main benefit for your client in doing so is that you will then be able to make informed submissions as to why the document should in fact be disclosed to your client (In R (ILPA) v Tribunal Procedure Committee  EWHC 218 (Admin) at ). However if those submissions are not successful, you will be left in the invidious position of attempting to rebut potentially damaging information without being able to ask your client about it. 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 R (ILPA) v Tribunal Procedure Committee  EWHC 218 (Admin), Blake J accepted that this rule does not displace the functions of SIAC, it is simply intended to ensure that the Tribunal can avoid any risk to national security.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 While this rule confers power on the Tribunal 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. Note that 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 held that the Tribunal would have also been entitled to appoint a Special Advocate.
32.13E In R (ILPA) v Tribunal Procedure Committee  EWHC 218 (Admin), Blake J held that rule 13(2), in combination with rule 27(4), did give the Tribunal power to adopt a closed material procedure ('CMP') where the serious harm test was met. He rejected ILPA's challenge to the lawfulness of the Rule, emphasizing that the power to authorise a CMP was an exceptional one, which the Tribunal judiciary could and should be expected to exercise judicially, having regard to the requirements of fairness (which are particularly high in asylum and human rights appeals), and only in the rarest of cases. Even then, he considered it 'improbable that [directions for a CMP] would be made by a judge properly directing himself as to the requirements of fairness' (at ). Enquiries made by the Lord Chancellor of 81 Tribunal judges and the Home Office suggested that as at the time of the hearing, no such direction had been made . Blake J considered 3 possible scenarios in which such a direction might be thought justified and rejected each. Most such risks could be addressed by appropriate anonymity and reporting conditions. The risk of harm to the mental health of an appellant could not justify a CMP not least since "The most distressing information for such appellants is the news that they are to be refused admission and/or expelled from the UK, but that is the reason why there is an appeal in the first place and cannot be kept from the appellant." . In relation to the possibility of witness intimidation he observed:
82. The above does not remove the problem of the reluctant witness who feels obliged to come to the Tribunal to give false evidence and does not want the person who is the source of the threat to be made aware of this by way of police investigation, suitably redacted hearsay evidence or otherwise. In substance, the problem is no different in immigration appeals or criminal courts and in my view, for reasons well illustrated by Lord Bingham's observations in Roberts and elsewhere, a secret hearing where the appellant does not know the case s/he is facing and is unable to test it is not the answer. Such informants may have reasons of their own for making the statements they do and the exploration of their reliability can only ever be satisfactorily done if the opposing party participates in the process.
83. Even if, in the Parole Board context, the need for the tribunal determining the release on licence of a serious criminal mandates that all data relevant to risk is before them, an immigration appeal does not involve the same triangulation of interests. The judge's function is to decide whether the appellant has made out his case. Of course, any witness or person who does not want to be a witness, can be the subject of threats and reprisals and if they are from abroad such reprisals may be to family members overseas, but in my view this would not be sufficient basis for a judge to authorise a secret trial in clear breach of the most basic principles of a fair hearing. …
Accordingly he concluded that:
84. In short, I cannot consider that rule 13(2) gives rise to a systemic or inherent lack of fairness since I cannot envisage it will be used to make a closed substantive decision in the manner contended for by the claimant. … In any event, if I am wrong as a matter of general prediction, then it is, at least, likely to be such a rare and unusual case, where the competing considerations would have to be examined on their individual facts. …
85. I recognise that the very existence of the power is troubling and the repeal of rule 51 (7) equally so. It may well be that this is an issue that the Chamber President or the Senior President of Tribunals will want to consider issuing guidance on. It is not the function of this court to do so, in the course of adjudicating on this challenge. I would anticipate, however, that if the power were ever to be used, there would need to be a clear notification to the appellant that it had been and a full account of what was done and why would need to be recorded somewhere in the determination so it could be reviewed by the Upper Tribunal, this court or the Court of Appeal.
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 FTT Anonymity Guidance emphasises that an anonymity direction will not in itself result in a private hearing but acknowledges the interaction between the two powers:
9…Judges may also consider the use of rule 27, which permits the Tribunal to direct that a hearing, or part of it, is to be held in private. Where a hearing, or part of it, is to be held in private, rule 27(3) provides that the Tribunal may determine who is permitted to attend and by rule 27(4) the Tribunal may direct that a person be excluded from it if his or her conduct is disruptive or is likely to disrupt the hearing or if the Tribunal considers that his or her presence is likely to prevent another person from giving evidence or making submissions freely. The power may be exercised in relation to witnesses of fact or, in exceptional cases, experts concerned that giving evidence in open court might inhibit their work in the relevant country. The Supreme Court has commented on the usefulness of the power, while emphasising that "openness is the norm": MN and KY (Somalia)  UKSC 30.
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  AC 588 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). See also Khuja v Times Newspapers  UKSC 49.
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 (no longer published on the Tribunal's website but available online) 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 rule 27, 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.