R (on the Application of BG) v London Borough of Hackney (Social Media; Candour; Disclosure)

JurisdictionUK Non-devolved
JudgeMr CMG Ockelton,Blundell UTJ
Judgment Date26 October 2022
Neutral Citation[2017] UKUT 338 (IAC)
CourtUpper Tribunal (Immigration and Asylum Chamber)
R (On the Application of BG)
and
London Borough of Hackney (Social Media; Candour; Disclosure)

[2017] UKUT 338 (IAC)

Mr CMG Ockelton (Vice President) and Blundell UTJ

UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)

Procedure and process — conduct of parties — duty of candour — disclosure statement — application for specific disclosure — social media accounts — judicial directions — age assessments

The Applicant, a citizen of Afghanistan, entered the United Kingdom by boat in September 2021 and applied for asylum. That application remained outstanding. The Applicant maintained that he was born in 2008. Following a short-form age assessment the Respondent concluded that the Applicant was an adult of between 21 and 25 years old. Before he arrived in the United Kingdom, the Applicant had created a Facebook account using a mobile phone he had bought in Serbia. Through that account he made contact with his brother who was a recognised refugee living in the United Kingdom.

The Applicant issued judicial review proceedings in the Administrative Court in January 2022 challenging the age assessment decision. The application was transferred to the Upper Tribunal (‘UT’) in February 2022. Following a case management hearing, the UT issued an order directing the parties to conduct a review of the Applicant's social media accounts. The Applicant was to provide the Respondent with his usemame(s) and password(s) and disclose all relevant material following a proportionate search of his social media or other electronic communication accounts. The Applicant applied for the directions to be set aside on the grounds that they were unlawful and too broad and ill-defined to be proportionate, sufficiently clear and specific to be capable of fair and effective compliance, or consistent with the duty of candour in public law. The Respondent confirmed that there had been no application made at the case management hearing for specific disclosure or inspection of any social media material and that the Applicant had provided photographs which had been sought by way of specific disclosure. In the light of that confirmation, the UT set aside the order and the parties agreed new directions. The UT provided guidance in circumstances in which a tribunal which was resolving a dispute as to a person's age might properly require the disclosure and inspection of that person's social media accounts in order to resolve that dispute.

Held:

(1) The duty of candour injudicial review proceedings was well established by authority and applied in the UT in the same way as in the Administrative Court. A respondent was under a ‘very high duty’ to assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide: Secretary of State for Foreign and Commonwealth Affairs v Quark Fishing Limited[2002] EWCA Civ 1409 applied. An applicant in judicial review proceedings also owed a duty of candour to make frank disclosure of all relevant facts: Cocks v Thanet District Council[1983] 2 AC 286 applied. That duty extended not only to disclosing documents which were adverse to his claim; he was also obliged to draw the significance of those documents specifically to the attention of a judge considering his application (paras 33 – 42).

(2) In practice, the duty of candour obliged an applicant's legal representatives in age assessment judicial review proceedings to: ascertain what social media and other methods of communication were used by the applicant; consider the relevant accounts with a view to ascertaining whether they contained any material which potentially undermined the applicant's case; and disclose any material which might be relevant to the case, including any material adverse to the applicant (paras 47 – 52).

(3) The duty of candour was a self-policing one but had not always been fully discharged, or even fully understood. In the future, the UT might legitimately require a ‘disclosure statement’ from an applicant's solicitor, confirming that the applicant had disclosed to the solicitor the details of any social media accounts that he held and that the solicitor in question had undertaken a reasonable and proportionate search of those accounts in order to ensure that all documents relevant to the issues in the case had been disclosed. Requiring a ‘disclosure statement’ of that nature served at least three different purposes. First, it ensured that the applicant and his solicitors had undertaken a process which might otherwise have been overlooked. It ensured, secondly, that an applicant's social media accounts, which might contain highly personal and sensitive information which had no bearing on his age, were only subjected to scrutiny by his own legal representative to the extent that was properly considered necessary. Finally, it served to ensure that a respondent to such proceedings had a specific reassurance from an officer of the court that any relevant material had been disclosed (paras 57 – 59).

(4) In order for the UT to make an order for specific disclosure, it was necessary for there to have been an application for the same; such an order could not be made as a matter of course. Instead, the test would always be whether, in the given case, disclosure appeared to be necessary in order to resolve the matter fairly and justly: Tweed v Parades Commission for Northern Ireland[2006] UKHL 53 applied. Whether it was necessary and proportionate to make such an order would be for the Tribunal in question. An order for specific disclosure of material from an applicant's social media accounts was likely to represent an interference with his private life and it was necessary to consider the breadth of the disclosure required in order to decide whether a less intrusive measure might suffice. When considering an application for specific disclosure, it would be a highly material consideration that there was a statement from a solicitor confirming that he or she had undertaken a reasonable and proportionate search of the applicant's social media accounts and had disclosed anything of relevance to the question of the applicant's age (paras 61 – 67).

(5) By Part 4 of the Nationality and Borders Act 2022, challenges to age assessment decisions made by a local authority would be brought by way of appeal to the First-tier Tribunal (‘FtT’) rather than proceedings commenced in the Administrative Court and transferred to the UT. By section 54(3) the Tribunal's task in such an appeal was to determine the claimant's age on the balance of probabilities and to assign a date of birth. In such an appeal, there was no duty of candour upon a claimant and no duty of disclosure comparable to that which appeared in the Civil Procedure Rules. The FtT did, however, have the power to require a party or another person to provide information. Therefore, it might direct a claimant to provide details of any social media account he used and direct his solicitor to conduct a reasonable and proportionate search of those accounts. Whilst the FtT could not have the reassurance provided by the duty of candour, it might legitimately give directions to the parties which would ensure that it was equipped to assign a date of birth to the claimant, as required by statute (paras 70 – 74).

Cases referred to:

Bank Mellat v Her Majesty's Treasury (No 2) [2013] UKSC 39; [2014] AC 700; [2013] 3 WLR 179; [2013] 4 All ER 533

Cocks v Thanet District Council [1983] 2 AC 286; [1982] 3 WLR 1121; [1982] 3 All ER 1135

DL and ML v London Borough of Newham [2011] EWHC 1127 (Admin)

Kerr v Department for Social Development [2004] UKHL 23; [2004] 1 WLR 1372; [2004] 4 All ER 385; [2004] NI 397

Nimo (appeals: duty of disclosure) [2020] UKUT 88 (IAC); [2020] Imm AR 894

R v Lancashire County Council ex parte Huddleston [1986] 2 All ER 941

R (on the application of A) v London Borough of Croydon; R (on the application of M) v London Borough of Lambeth[2009] UKSC 8; [2009] 1 WLR 2557; [2010] 1 All ER 469

R (on the application of Al-Sweady) v Secretary of State for Defence [2009] EWHC 2387 (Admin)

R (on the application of CJ) v Cardiff City Council [2011] EWCA Civ 1590; [2012] 2 All ER 836

R (on the application of Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812; [2018] 4 WLR 123; [2019] 1 All ER 416; [2019] Imm AR 86; [2019] INLR 84

R (on the application of Gardner and Harris) v Secretary of State for Health and Social Care and Others [2021] EWHC 2422 (Admin)

R (on the application of HAM) v London Borough of Brent [2022] EWHC 1924 (Admin); [2022] Imm AR 1608

R (on the application of HB) v Derby City Council 24 August 2020 (JR/5394/2019) UTIAC

R (on the application of Houreau and Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin)

R (on the application of JS) v Secretary of State for the Home Department [2020] EWHC 3053 (Admin)

R (on the application of Khan) v Secretary of State for the Home Department [2016] EWCA Civ 416

R (on the application of LS) v London Borough of Brent 7 July 2022 (JR/01050/2021) UTIAC

Secretary of State for Foreign and Commonwealth Affairs v Quark Fishing Limited [2002] EWCA Civ 1409

Smithkline Beecham Pic v Generics (UK) Limited; BASF v Smithkline Beecham Pic[2003] EWCA Civ 1109; [2004] 1 WLR 1479; [2003] 4 All ER 1302

Tweed v Parades Commission for Northern Ireland [2006] UKHL 53; [2007] 1 AC 650; [2007] 2 WLR 1; [2007] 2 All ER 273; [2007] NI 66

XX (PJAK – sur place activities – Facebook) Iran CG [2022] UKUT 23 (IAC)

Legislation and international instruments judicially considered:

Borders, Citizenship and Immigration Act 2009, section 55

Children Act 1989, sections 17, 20(1), 23C & 105(1)

Civil Procedure Rules, Practice Direction 31B; rule 31

European Convention on Human Rights, Article 8

Nationality and Borders Act 2022, section 54

Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, rules 1(4), 4(1)(d) &amp...

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