Fair, open justice has deep roots in the English legal system. But the Immigration Act 2014 and other measures have made it harder for many to access it.

Legal challenges are swelling against the unfairness of new restrictions on appeals. The latest case concerns a controversial rule that allows Immigration Judges to consider secret evidence in appeal hearings. It’s highly relevant to the broader debate about fairness in the immigration tribunals.

In Immigration Lawyers Practitioner’s Association v Tribunal Procedure Committee & Lord Chancellor [2016] EWHC 218 (Admin), Mr Justice Blake decided that the secret evidence rule is not inherently unfair. However, it is of very limited application and should only be used rarely. Showing his deep discomfort with the idea of secret hearings, the Judge called on the Tribunal Presidents to issue guidance on how the rule should operate.

The law

Since coming into force on 20 October 2014, the effect of Rule 13(2) of the Tribunal Procedure (First-Tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2014/ 2604) is to allow Judges to consider secret evidence where disclosure would be likely to cause “serious harm” to a person and it is in the interests of justice and proportionate to keep the evidence secret.

ILPA argued that rule 13(2) was incapable of producing a fair outcome, did not fulfill the purpose for which it was created and fell outside of the scope of the parent legislation it was made under (the Tribunal, Courts and Enforcement Act 2007).

Mr Justice Blake, (a former President of the Upper Tribunal), based his decision on what higher Judges have said about the principle of fairness (see in particular paragraphs 24 to 27).

The starting point is that “all justice shall be done openly and that it shall be done only after a fair hearing”. But what fairness requires varies according to context.

In appeals against Freedom of Information Act 2000 decisions, part of the hearing may be held in secret (or ‘closed’), without the person requesting the information, because disclosure of the information to them would defeat the whole purpose of an appeal. Fairness is achieved in the Information Rights Tribunal by the presence of the Information Commissioner, a neutral party, in the closed hearing and by the gist of what occurred in the closed hearing being explained to the appellant.

In the immigration context, higher courts have stated that in asylum claims, “only the highest standards of fairness” will do (Thirukumar [1989] Imm AR 402, at page 414). More generally “any material that the Secretary of State seeks to rely on before the Tribunal in support of the decision … ought to be disclosed to the appellant and his representatives”. Accordingly, in MH (Respondent’s bundle: documents not provided) Pakistan [2010] UKUT 168 (IAC), Vice President Ockleton of the Upper Tribunal held that the Tribunal may assume that the document is no longer relied on by the Home Office where it is not disclosed. That was the law until the new rules upset the status quo.

Findings

The Judge found that although rule 13(2) risked grave unfairness, the system as whole was not entirely unfair as it contained sufficient safeguards, outlined below.

Firstly, the rule would not be open to abuse by Home Office. Applications for secret evidence to be considered that were unsupported by compelling evidence would be dismissed (paragraph 75).

Secondly, rule 13(5) and (6) allowed for the appellant’s representative to see the secret evidence (but not to disclose it to the appellant or anyone else). While this puts the lawyer in a very awkward position, professional conduct rules do not prevent this procedure, which may be in the best interests of the client (paragraphs 76 – 77).

Thirdly, the Judge noted that there was no evidence that closed proceedings under rule 13(2) had been used at all. [Although, thinking about it, that may be because there is absolutely no guidance on whether the Appellant should be informed if a Judge has used the power…]. The rule was probably not going to be used, except on rare occasions.

Even if a witness tells the Home Office that they are being forced to give false evidence due to fear of reprisals from an Appellant, a secret hearing would not be justified. The evidence should be tested openly.

In the Judge’s view, rule 13(7) does not create a general power for Judges to consider secret evidence without applying any ‘serious harm’ criteria, (despite the language of that rule suggesting that it does). The Tribunal Procedure Committee (the Defendant in the case) did not dispute this. Rule 13(7) should only be used by the Tribunal to obtain documents that it cannot disclose to other persons. It does not allow the Tribunal to consider the documents without disclosing them to the parties (see paragraphs 12 to 13). I can’t see that rule 13(7) serves any clear purpose, but perhaps that’s just me.

So, is it lawful for secret evidence to be heard without the appellant in immigration appeals?

Yes.

Is the rule that allows secret evidence likely to be used often? 

No.

Although ILPA’s challenge was dismissed, the judgment strongly affirms the need for open justice and should confine secret evidence to the margins of immigration tribunal practice [assuming that Immigration Judges follow Mr Justice Blake’s recommendations and tell us when and why they are using the power…].

Posted by Ben Amunwa

Founder and editor of Lawmostly.com. Ben is a business and public law barrister with the 36 Group. He gives expert legal advice on employment, immigration and commercial disputes to a wide range of clients.

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