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:
(i) where someone's sexual orientation might put them at risk of harm;
(ii) where disclosure might adversely affect an appellant's mental health; and
(iii) where there had been some denunciation of the appellant by a relative who was in fear of reprisals.
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];