Practice Guidance (Upper Tribunal: Anonymity in Asylum and Immigration Cases)
| Jurisdiction | UK Non-devolved |
| Year | 2022 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Tribunal - Upper Tribunal - Practice and procedure - Asylum and immigration cases - Guidance on approach to anonymity of asylum seekers -
This Guidance Note is issued under paragraph 7 of Schedule 4 to the Tribunals, Courts and Enforcement Act 2007. It replaces Guidance Note 2013 No 1: Anonymity Orders.
“Open justice … requires, as a general rule, that the courts must conduct their business publicly unless this would result in injustice. Open justice is an important safeguard against judicial bias, unfairness and incompetence, ensuring that judges are accountable in the performance of their judicial duties. It maintains public confidence in the impartial administration of justice by ensuring that judicial hearings are subject to public scrutiny, and that ‘Justice should not only be done, but should manifestly and undoubtedly be seen to be done’.” R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [
1 Exceptions to that rule must be justified by some more important principle, most often where the circumstances are such that that openness would put at risk the achievement of justice which is the very purpose of the proceedings
2 The relationship between open justice and the need to protect the rights of individuals who may be harmed by disclosure of personal details was examined in A v British Broadcasting Corpn [
3 In appeals and judicial reviews in the Upper Tribunal (Immigration and Asylum Chamber) (“UTIAC”), issues frequently arise regarding human rights protected by the Convention. Those most commonly encountered are article 8 (right to respect for private and family life), and, in protection appeals, article 2 (right to life) and article 3 (prohibition of torture/inhuman or degrading treatment or punishment). The Supreme Court emphasised in A v British Broadcasting Corpn that the common law principle of open justice remains “in vigour”, even where Convention rights are also applicable.
4 It is for a UTIAC judge to determine the extent, if any, to which a human right necessitates a departure from the principle of open justice. Restrictions on open justice must be justified and proportionate; any restriction imposed must be no more extensive than is necessary to protect the interests of justice. Care may need to be taken such that information which is protected is not disclosed in open court in such a manner as could lead to its dissemination.
5 The judge’s decision to anonymise will be fact-specific. As was noted in A v British Broadcasting Corpn at para 32, where the interests of justice require some qualification of the principle of open justice, it may not be necessary to exclude the public or the press from the hearing: it may be sufficient for particular information to be withheld.
6 Central to the tribunal’s evaluation will be the purpose of the open justice principle, the potential value of the information in question in advancing that purpose and, conversely, any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others
7 Rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (the “UT Procedure Rules”) contains a power to make an order prohibiting the disclosure or publication of specified documents or information relating to the proceedings or of any matter likely to lead members of the public to identify any person whom the Upper Tribunal considers should not be identified. The effect of such an “anonymity order” may therefore be to prohibit anyone (not merely the parties in the case) from disclosing relevant information. Breach of the order may be punishable as a contempt of court (see further para 40 below).
8 The usual anonymity order to be used by the Upper Tribunal is as follows:
“Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [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) without that individual’s express consent. Failure to comply with this order could amount to a contempt of court.”
9 Rule 14(2) of the UT Procedure Rules provides that the Upper Tribunal may give a direction prohibiting the disclosure of a document or information to a person if the tribunal is satisfied that disclosure “would be likely to cause that person or some other person serious harm” and that it is proportionate having regard to the interests of justice to give such a direction
10 The work of the UTIAC makes it appropriate in certain classes of cases to exercise rule 14 powers to prevent certain information from entering the public domain.
11 All determinations of UTIAC are available on its website, but in the past only reported decisions of the Upper Tribunal could be searched for by name, subject and other indicators. This has now changed. All unreported decisions made after 1 June 2013 can be searched for on the website. It is important to remember that the website has been configured in such a way that it is indexed by search engines. This means that simply searching a name in, for example, Google, will show a UTIAC decision as a “hit” if that name appears in a UTIAC decision without anyone having to search the UTIAC database. It is not just an appellant’s name that will be found; family members and witnesses will also be found which may have serious consequences dependent on what is said about them.
12 For that reason, it is particularly important that UTIAC judges follow a consistent practice where anonymity has been granted and that parties and others are aware of the practice to be adopted.
III Principles to be applied13 The starting point for consideration of anonymity orders in UTIAC, as in all courts and tribunals, is the principle of open justice, described in the Introduction to this Guidance Note. This principle promotes the rule of law and public confidence in the legal system. UTIAC sits in open court with the public and press able to attend and, as a general matter, nothing should be done to discourage the...
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