Cokaj (Anonymity Orders: Jurisdiction and Ambit)
| Jurisdiction | UK Non-devolved |
| Judge | Lane J,O'Callaghan |
| Judgment Date | 19 July 2021 |
| Neutral Citation | [2021] UKUT 202 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2021] UKUT 202 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President) and O'Callaghan UTJ
Mr J Bunting instructed by NGN Legal, for News Group Newspapers Ltd;
Mr Z Malik instructed by Bond Adam LLP Solicitors, for SC;
Mr M Gullick instructed by the Government Legal Department, for the Secretary of State (Interested Party).
A v British Broadcasting Corporation [2014] UKSC 25; [2015] 1 AC 588; [2014] 2 WLR 1243; [2014] 2 All ER 1037
Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38; [2020] AC 629; [2019] 3 WLR 429; [2019] 4 All ER 1071
Cokaj (paras A398–399D: ‘foreign criminal’: procedure) [2020] UKUT 187 (IAC)
Gurdian News and Media Ltd and Others, In re [2010] UKSC 1; [2010] 2 AC 697; [2010] 2 WLR 325; [2010] 2 All ER 799
HA (Iraq) v Secretary of State for the Home Department; RA (Iraq) v Secretary of State for the Home Department[2020] EWCA Civ 1176; [2021] WLR 1327; [2021] Imm AR 59; [2020] INLR 639
LLD (by her mother and next friend) v Secretary of State for the Home Department [2020] NICA 38; [2021] Imm AR 383; [2021] INLR 47
Officer L and Others, In re [2007] UKHL 36; [2007] WLR 2135; [2007] 4 All ER 965
Pink Floyd Music Limited v EMI Records Limited [2010] EWCA Civ 1429; [2011] WLR 770
S (a child) (identification: restrictions on publication), In re [2004] UKHL 47; [2005] 1 AC 593; [2004] 3 WLR 1129; [2004] 4 All ER 68
Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460; [1986] 3 WLR 972; [1986] 3 All ER 843
Trinity Mirror plc, In re [2008] EWCA Crim 50; [2008] 3 WLR 51; [2008] 2 All ER 1159
Appeals (Excluded Decisions) Order 2009, Article 2(n)
European Convention on Human Rights, Articles 2, 3, 6, 8 & 10
Nationality, Immigration and Asylum Act 2002, section 82 & 104
Tribunal Procedure (Upper Tribunal) Rules 2008, rules 5(3) & 14
Human rights — Article 2 of the ECHR — Article 3 of the ECHR — no risk of harm — Article 8 of the ECHR — family and private life — adverse effect of publicity — Article 10 of the ECHR — freedom of expression — open justice — jurisdiction — Immigration and Asylum Chamber — anonymity orders — jurisdiction and ambit — appropriate forum
SC, a citizen of Albania, was the subject of a decision of the Upper Tribunal (“UT”) promulgated on 27 April 2020.* In that decision, the UT re-made the Article 8 ECHR aspect of SC's appeal against the Secretary of State for the Home Department's refusal of his human rights claim. On 9 May 2019, the UT had set aside the First-tier Tribunal's (“FtT”) decision relating to Article 8 but found no error of law in the part of the FtT's decision relating to SC's protection claim. In the decision of 9 May 2019, the UT made an anonymity order under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the 2008 Procedure Rules”). The order stated that SC was granted anonymity and that no report of these proceedings should directly or indirectly identify him or any member of his family. An anonymity order was also made by the UT on 19 June 2019 at a hearing when the matter was adjourned. With the promulgation of the decision of 27 April 2020, which also contained an anonymity order, the UT's appellate function was discharged. SC applied for permission to appeal to the Court of Appeal in respect of the UT's decision regarding Article 8 of the ECHR.
On 25 October 2020, News Group Newspapers (“NGN”) made an application inviting the UT to discharge the order giving SC anonymity on the basis that it represented a serious interference with the principle of open justice and with the media's right of freedom of expression. NGN relied on the fact that SC's identity was already in the public domain since he had been subject to extensive press coverage in 2017, which named him, and identified his business and the town in which he lived. There was also a description of SC's abuse of the United Kingdom's immigration laws, including returning illegally to the United Kingdom after he had been extradited to Albania in connection with his conviction there for murder. In relation to protection issues, NGN submitted that those had fallen away as a reason for anonymity in the light of the fact that SC did not seek permission to appeal against the UT's decision refusing to set aside the protection claim aspect of the FtT's decision. Regarding any adverse effect upon SC's children caused by the lifting of the order, NGN argued that the balance of competing rights as between Article 10 of the ECHR and Article 8 of the ECHR fell to be struck in favour of the right to freedom of expression under Article 10.
SC requested that the anonymity order was maintained. He explained that the previous adverse publicity had had a detrimental impact on his family and on his children's welfare. He also stated that, in June 2020, a firearm was discharged in the street, apparently targeting SC's residence. He presented a new argument, namely that if he lost his appeal, he would return to Albania with his family, and the publicity which would result from lifting the anonymity order would place him and his family at risk from kidnappers. Furthermore, SC took the view that the UT was not the appropriate forum for determining the instant application. He submitted that, although his underlying appeal was “pending” for the purposes of section 104 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), the appeal was not presently before the UT, and it was Parliament's intention that all matters which were incidental to the appeal proceedings should be dealt with by the specific tribunal or court that was dealing with the appeal at the given time. He argued that the Court of Appeal was, in any event, the most convenient forum to consider the issue of anonymity.
Held, allowing the application to lift the anonymity order:
(1) Unless inconsistent with statute or rules of court, all courts and tribunals had an inherent jurisdiction to determine what the constitutional principle of open justice required in terms of access to documents or other information placed before the court or tribunal in question. A court or tribunal retained jurisdiction to deal with ‘open justice’ aspects arising from a case, after that case had concluded before it: Cape Intermediate Holdings Ltd v Dring[2019] UKSC 38 considered. The fact that the UT had jurisdiction to decide NGN's application did not mean that it should do so if there was a more appropriate forum: Spiliada Maritime Corp v Cansulex Ltd[1987] 1 AC 460 applied. The case was now before the Court of Appeal, awaiting a decision on permission. For the purposes of rule 14 of the 2008 Procedure Rules, the “proceedings” referred to in the UT's anonymity order were the proceedings in SC's appeal under section 82 of the 2002 Act. The consequences of regarding the FtT's proceedings as conceptually separate from those in the UT for that purpose would be problematic, and the same applied, as regards the UT and the Court of Appeal. A higher court or tribunal might impose an anonymity order which had effect in respect of the entirety of the proceedings under section 82 of the 2002; and, conversely, might discharge such an order, whether expressly or by necessary implication: Pink Floyd Music Ltd v EMI Records Ltd[2010] EWCA Civ 1429 applied. In the instant case, which was no longer a protection appeal, the Court of Appeal would expect the party who sought to continue anonymity to make the appropriate application to that court (paras 29 – 36).
(2) Whilst rule 14(1)(a) of the 2008 Procedure Rules referred to the “proceedings”, rule 14(1)(b) conferred a power to prohibit disclosure or publication of any matter likely to lead members of the public to identify any person whom the Tribunal considered should not be identified. Even if, contrary to the Tribunal's finding, the reference to the proceedings in sub-paragraph (a) were confined to the proceedings before the UT, the power to make an anonymity order in any event extended beyond the ambit of the proceedings in the UT. Nonetheless, in the circumstances of this case, it was appropriate for the UT to consider NGN's application to lift the Tribunal's anonymity order. If permission to appeal were refused by the Court of Appeal, it was unlikely that the issue of SC's anonymity would be addressed by that court. In any case, there was before the UT the evidence upon which to make the necessary fact-sensitive determination of whether the anonymity order should be lifted. If the Court of Appeal in due course addressed the issue of anonymity, it was likely to be assisted by the process undertaken by the UT (paras 37 – 38).
(3) Where both Articles 8 and 10 of the ECHR were in play, it was for the court to weigh the competing claims under each Article: In re Guardian News and Media Ltd and Others[2010] UKSC 1 applied. Since both Article 8 and Article 10 were qualified rights, the weight to be attached to the respective interests of the parties would depend on the facts. The case law revealed that in the case of qualified rights, powerful reasons were required to overcome the interests enshrined in Article 10 of the ECHR. The public had a legitimate interest in knowing about a man with a conviction for murder in Albania, and who, as a serious, persistent immigration offender, had done his best to take improper advantage of laws designed to protect those genuinely at real risk of harm. SC's case was already in the public domain to a significant degree as a result of relatively recent press coverage. Regarding considerations under Articles 2 and 3 of the ECHR, there was no objective evidence to support the assertions of SC and his wife regarding the threat of kidnapping. Given the UT's findings in the April 2020 decision regarding the credibility of SC and his wife, the Tribunal was not prepared to accept their latest...
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