R (On the Application Of Immigration Law Practitioners Association) v Tribunal Procedure Committee & Anor  EWHC 218 (Admin)
Rule 13(2) of The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 - which allowed immigration appeal decisions to be made on the basis of evidence that had not been disclosed to the appellant - was lawful. However, the power under the rule was disturbing and warranted only rare use, and potentially review by and guidance from the Chamber President or Senior President of the Tribunals.
15 February 2016
1. The Claimant sought judicial review of Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (which came into effect in October 2014).
2. The Rules were created by the First Defendant - the Tribunal Procedure Committee - under section 22 of the Tribunals, Courts and Enforcement Act 2007. They were created to replace the Asylum and Immigration Tribunal (Procedure) Rules 2005. Under rule 51(7) of the 2005 Rules, a tribunal had to determine an appeal on the basis of evidence made available to all parties. Under the new rule 13(2) of the 2007 Rules, a tribunal could prohibit disclosure of documents or information to a person, including an appellant, if it was likely to cause them or someone else serious harm - the tribunal had to be satisfied that it was in the interests of justice and proportionate to provide a direction in these terms.
3. The Claimant argued that the rule gave rise to a closed material procedure that was unfair.
4. It was further argued that the First Defendant did not possess the statutory powers to create the rule it in fact did.
5. The application was refused.
6. The common law concept of fairness includes that a party is able to see all information presented to a judge, notwithstanding recognised exceptions. The principle was that any unfairness had to be inherent in the relevant rule itself rather than located in the fact that the rule gave rise to a mere possibility that unfairness would result (FP (Iran) v Secretary of State for the Home Department  EWCA Civ 13,  Imm. A.R. 450 and R. (on the application of Detention Action) v First-tier Tribunal (Immigration and Asylum Chamber)  EWCA Civ 840,  1 W.L.R. 5341 applied).
7. The Rules did not define "serious harm,” but it has to be limited to significant physical and mental suffering. This must be established by clear and substantiated information.
8. "Likely" referred to something more than a mere risk or possibility of harm. If a case met that standard, the judge had to consider whether a direction would be consistent with the interests of justice and proportionate.
9. There was no evidence that any such orders had ever been made before the First-tier or Upper Tribunals. It is highly improbable that they would be made, especially by by a judge with a proper understanding of the common law principles of fairness.
10. Section 22 of the Act enabled rule 13 to be made. Rule 13 had therefore been created pursuant to statutory powers (Browning v Information Commissioner  EWCA Civ 1050,  1 W.L.R. 3848).
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11. In relation to how rule 13(2) was to be invoked, an experienced tribunal judge - who is also a member of the Committee's immigration and asylum sub-committee - has offered the Committee three case:
Situations (i) or (ii) could be handled via measures of anonymity, exclusion of the public from a hearing, and redaction. A judge dealing with a mentally ill appellant will be directed by case law guidance. It is thus difficult to see why the rule will need to be invoked.
12. In the rare event that information might cause serious harm if disclosed, the Rules required consideration of whether it could be provided to a legal representative on terms that it not be disclosed to the client without the court's permission.
13. The court therefore could not envisage that rule 13(2) would be used to make a closed substantive decision. Generally speaking, the rule would only be used in a rare and unusual case, where it would be uniquely justified on the individual facts of the case. It follows that the rule did not give rise to an inherent lack of fairness.
14. The rule 13(2) power is troubling. So too was the repeal of rule 51(7) of the 2005 Rules. The introduction of this new rule might be an issue that the Chamber President or Senior President of Tribunals would want to consider issuing guidance on.
15. In the rare event that rule 13(2) was invoked, there should be notification to the parties and a detailed record kept of what was done in the case and why, to cater for the event of the case being reviewed by senior courts on appeal.
[24-27]; [63-67]; [14-16]; [70-84];