Upper Tribunal (Immigration and asylum chamber), 2021-07-19, [2021] UKUT 202 (IAC) (Cokaj (anonymity orders, jurisdiction and ambit))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge O’Callaghan |
| Status | Reported |
| Date | 19 July 2021 |
| Published date | 11 August 2021 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | anonymity orders, jurisdiction and ambit |
| Hearing Date | 30 November 2020 |
| Appeal Number | [2021] UKUT 202 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Cokaj (anonymity orders: jurisdiction and ambit) [2021] UKUT 00202 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House by Skype |
Decision & Reasons Promulgated |
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On 30 November 2020 |
On 31 December 2020 [Addendum inserted 19 July 2021] |
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Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE O’CALLAGHAN
Between
NEWS GROUP NEWSPAPERS LTD
Applicant
and
SELAMI COKAJ
Respondent
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Interested Party
Representation:
For the applicant: Mr J Bunting, Counsel, instructed by NGN Legal
For the respondent: Mr Z Malik, instructed by Bond Adam LLP Solicitors
For the interested party: Mr M Gullick, Counsel, instructed by Government Legal Department
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A court or tribunal retains jurisdiction to deal with ‘open justice’ aspects arising from a case, after that case has concluded before it.
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A higher court or tribunal may impose an anonymity order that has effect in respect of the entirety of the proceedings under section 82 of the Nationality, Immigration and Asylum Act 2002; and, conversely, may discharge such an order, whether expressly or by necessary implication.
DECISION ON APPLICATION TO DISCHARGE ANONYMITY ORDER
A. INTRODUCTION
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On 23 April 2020, the Upper Tribunal promulgated its decision in the case of SC v Secretary of State for the Home Department. The decision involved the re-making of the Article 8 ECHR aspect of SC’s appeal against the refusal by the Secretary of State of SC’s human rights claim. On 9 May 2019, the Upper Tribunal (Upper Tribunal Judge Pitt) had set aside the part of the First-tier Tribunal’s decision that related to Article 8.
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Upper Tribunal Judge Pitt had, however, found no error of law in the part of the decision of the First-tier Tribunal that related to SC’s protection claim, which was based upon an alleged fear of harm on return to Albania as a result of a blood feud. The blood feud was said to have been occasioned by the killing by SC of a man in Albania.
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In the 9 May decision, the Upper Tribunal made an anonymity order under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. The order stated that SC was granted anonymity and that no report of these proceedings shall directly or indirectly identify him or any member of their family. The direction applied both to SC and to the Secretary of State. Failure to comply with it could lead to contempt of court proceedings.
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Rule 14(1) provides that the Upper Tribunal may make an order prohibiting the disclosure or publication of (a) specified documents or information relating to the proceedings or (b) any matter likely to lead members of the public to identify any person whom the Upper Tribunal considers should not be identified.
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On 19 June 2019, the case came before the Upper Tribunal for re-making on the Article 8 issue. The Tribunal, however, adjourned the matter, following submissions by leading Counsel for SC that it was necessary for the Tribunal to consider the safety of the murder conviction, which had been imposed upon SC as a result of the killing. An anonymity order was also made by the Tribunal on that occasion.
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With the promulgation of the Upper Tribunal’s decision of 23 April 2020, the Upper Tribunal’s appellate function had been discharged. The Upper Tribunal’s decision of 23 April 2020 also contains an anonymity order.
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SC applied for permission to appeal to the Court of Appeal. He did so only in respect of the Article 8 decision of 23 April, not in respect of the refusal by the Upper Tribunal to set aside such part of the First-tier Tribunal’s decision as concerned the protection claim.
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SC has renewed his application for permission to appeal to the Court of Appeal. His grounds relate to the refusal of the Tribunal to accept the late production of a document; and to the conclusions reached in respect of the effect of SC’s removal on his children.
B. THE PARTIES’ POSITIONS IN OUTLINE
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The application of News Group Newspapers Ltd (“NGN”) dated 25 October 2020 invites the Upper Tribunal to discharge the order giving SC anonymity, on the basis that it represents a serious interference with the principle of open justice and with the media’s right of freedom of expression. As developed by Mr Bunting in written and oral argument, NGN’s position can be summarised as follows. The identity of SC is, it is said, already firmly in the public domain, since he was subject to extensive press coverage in 2007, which named him, and identified his business and the town in which he lived. The press coverage included photographs of SC, captioning his name, as well as photographs of his business and his residence. 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 for the murder of the person to whom reference has been made (as well as another conviction, which was set aside subsequently in Albania). Mr Bunting submits that, had the Upper Tribunal known about this press reporting, it is unlikely that the anonymity order would have been made. Mr Bunting also submits that it is possible to discover the identity of SC by reading the judgment of the Divisional Court, which dismissed his appeal against extradition.
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So far as protection issues are concerned, Mr Bunting submits that these have fallen away, as a reason for anonymity, in the light of the fact that SC has not sought permission to appeal to the Court of Appeal against the Upper Tribunal’s decision not to set aside the protection claim aspect of the First-tier Tribunal’s decision.
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As for any adverse effect upon the children of SC, which may be occasioned by the lifting of the order, Mr Bunting submits that the balance of competing rights as between Article 10 (Freedom of expression) and Article 8 (Right to respect for private and family life) of the ECHR falls to be struck firmly in favour of Article 10. There is no reliable evidence that naming SC would have a significantly detrimental impact upon his minor children, particularly in light of the fact that SC’s identity is in the public domain. The Tribunal can expect news organisations to follow the Editors’ Code of Practice, whereby family members of an individual are not to be identified except in circumstances where they are “genuinely relevant” to the story (Clause 9 of the Code).
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For SC, Mr Malik submits that, although SC’s underlying appeal is “pending” for the purposes of section 104 of the Nationality, Immigration and Asylum Act 2002, the appeal is not presently before the Upper Tribunal. The Tribunals, Courts and Enforcement Act 2007 comprises a carefully constructed scheme to segregate proceedings of the First-tier Tribunal, the Upper Tribunal and the Court of Appeal. It is tolerably clear, says Mr Malik, that Parliament’s intention is that all matters which are incidental to the appeal proceedings should be dealt with by the specific tribunal or court that is dealing with the appeal at the given time. It would be contrary to the general statutory scheme for the First-tier Tribunal to intervene in respect of an anonymity order, when the appeal was before the Upper Tribunal. In the same way, it is for the Court of Appeal exclusively to deal with the matter, once it reaches that court. It would, therefore, be open to NGN to apply to the Court of Appeal to discharge the anonymity granted to SC. The Court of Appeal is, in any event, the most convenient forum to consider the issue of anonymity.
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In any event, Mr Malik says, the anonymity order should be preserved. The Upper Tribunal’s Guidance Note 2013 No. 1: Anonymity Orders states at paragraph 18 that the identities of children, whether they are appellants or not, will not normally be disclosed; and that where the identity of a child is not to be revealed, the name and address of a parent other than the appellant may also need to be withheld, so as to preserve the anonymity of the child.
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Witness statements filed by SC in respect of the present application explain how the previous adverse publicity has affected the family and the welfare of the children. Furthermore, in June 2020, a firearm was discharged in the street, apparently targeting SC’s residence.
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In addition, Mr Malik raises a new argument in support of anonymity. Unlike the position before the Upper Tribunal, SC’s present stance is that, if he loses his appeal, he will return to Albania with his wife and minor children. The publicity which would result in the United Kingdom from lifting the anonymity order would place SC and his family at risk...
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