Upper Tribunal (Immigration and asylum chamber), 2022-12-09, [2023] UKUT 00074 (IAC) (YSA (Anonymity of Barristers))
| Judge | The Honourable Mr Justice Lane, President, Mr C M G Ockelton, Vice President |
| Status | Reported |
| Published date | 21 March 2023 |
| Date | 09 December 2022 |
| Hearing Date | 08 December 2022 |
| Appeal Number | [2023] UKUT 00074 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | Anonymity of Barristers |
UT Neutral citation number: [2023] UKUT 00074 (IAC)
YSA (Anonymity of Barristers)
Upper Tribunal
(Immigration and Asylum Chamber)
Heard at Field House
THE IMMIGRATION ACTS
Heard on 8 December 2022
Promulgated on 9 December 2022
Before
THE HONOURABLE MR JUSTICE LANE
MR C M G OCKELTON, VICE PRESIDENT
Between
YSA
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant
associated newspapers ltd
Interested Party
Representation
Adam Speker KC for the Applicants
Jack Anderson for the Defendant
Jude Bunting KC and Sarah Palin for the Interested Party
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The Tribunal at both levels has power to make an order anonymising legal representatives.
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The power will be exercised in accordance with the procedure set out in Re S [2004] UKHL 47, involving an ‘intense scrutiny’ of the prospective human rights infringements on each side of the equation, an application of s 12 of the Human Rights Act 1998, and a consideration of the interests of others who may be adversely affected by the proposed order.
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The public interest in reporting of proceedings in open court remains strong.
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The importance of the ‘cab rank’ rule does not mean that its maintenance and operation are matters for the Tribunal.
AN APPLICATION BY TWO BARRISTERS
DECISION AND REASONS
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This is an application by two members of the Bar, Mr Ronan Toal and Ms Ubah Dirie, who appear in an appeal, currently pending before this Tribunal. They seek an Order preventing publication of their identity as the representatives of YSA, the appellant in the appeal. We understand that a similar application is being made to the First-tier Tribunal by the (different) member of the Bar who represented the appellant before that Tribunal.
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The Order sought is in the following terms:
“1. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, there be no disclosure or publication to the world at large or a section of the world at large of any matter likely to lead members of the public to identify the individuals named in the confidential schedule as having been instructed for the applicant in the above case.
2. All judgments or Orders in the above case be redacted to remove the names of the said individuals and replace their names with references to “Leading Counsel” or “Counsel”.
3. Nothing in this Order shall prohibit any person making a complaint about any of the said individuals to the Bar Standards Board and or the First-tier Tribunal and or the Upper Tribunal.
4. This Order will cease to have effect in the following circumstances:
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After one year from the date of the order
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In respect of each Counsel separately if they identify themselves to the public or a section of the public as having been instructed for the applicant in the above case. For the avoidance of doubt, it would not affect the position of the others who had not identified themselves.
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Any party affected by this Order may apply to the Upper Tribunal to vary or set it aside provided notice is given to the individuals identified in the schedule via [the appellant’s solicitors].”
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The “confidential schedule” identifies Mr Toal, Ms Dirie and another barrister. We are concerned only with Mr Toal and Ms Dirie.
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Their application is the subject of supportive statements from the Bar Council, the Immigration Law Practitioners’ Association, and another member of the Bar, Mr Dunlop KC. As presented to us, it is based on a number of factors, which we characterise as follows. First, there is a basic principle, widely recognised internationally, that lawyers should be able to perform all of their professional functions without intimidation, hinderance, harassment or improper interference; and that governments must ensure that lawyers have sufficient protection to enable them to do so. Reference is made to the United Nations document Basic Principles on the Role of Lawyers (1990), United Nations General Assembly resolutions of June 2017 and June/July 2022, and the United Kingdom’s avowed support for lawyers defending human rights, expressed in July 2019.
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Secondly, in this country, the “Cab Rank Rule” is of great importance. A rule that, in principle, any member of the Bar is available to any person who needs a barrister not only ensures access to justice, but preserves the independence of the Bar by providing a professional distance between the barrister and the client for whom he works. Thus, it is said, a situation which inhibited the operation of the rule by causing barristers to decline work for fear of the consequences to themselves personally, would be a serious interference with the administration of justice.
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For the purpose of this application the applicants were represented by Mr Speker KC and the Interested Party by Mr Bunting KC and Ms Palin. The Secretary of State, represented by Mr Anderson, made no submissions.
The factual background
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The applicants’ witness statements set out their own worries for themselves and their families, which we do not doubt. Ms Dirie in addition cites racial background and choice of dress as factors increasing the risk of ill-feeling and harm. Neither of the applicants points to any specific ill-effects to themselves of having represented YSA or any other immigration client: the burden of their statements is a complaint about the Interested Party’s reporting of YSA and his litigation. The applicants therefore rely on the factual background as sufficient to justify their individual fears and hence the making of the order they seek. It is convenient here to fill out Mr Speker’s treatment of the relevant background with our own observations and comments.
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Mr Speker took us through a substantial number of press reports of and editorial comments on the appellant’s history and his challenges to the attempts to remove him. He characterised those reports in terms suggesting that certain features of them perhaps ought not to have been published. That is not a matter for us. We accept that the reports have been published, and that those who read them, and those who do not read them but may be influenced either by those who do or by the feeling that appears to be behind them, may form a view adverse to the appellant and perhaps also to those acting on his behalf, who are described in some of the reports in terms suggesting that they are making money out of unmeritorious challenges to proper governmental action.
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We make no comment on the financial part of the assertions. We accept that those who have acted for YSA have done so in the pursuance of their professional duty as advocates. It is wholly incorrect to imply that they chose which cases or interests to support in carrying out that duty; and in our view it is mischievous to suggest that the lawful process of the courts and the administration of justice, in which governmental decisions and actions are tested for legality, is anything other than an essential part of the Rule of Law and the constitutional protection against arbitrary government.
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We note the comments from certain members of the government to which Mr Speker also drew our attention, and the response from others anxious to set out the functions of legal process and the Rule of Law. We make no further comment other than to say that these statements and exchanges form part of the indisputable background against which the present application is made. That background is characterised by the applicants as one in which public feeling is whipped up by the press, the Interested Party in particular, against individual immigrants such as YSA in particular. The feeling is then spread to those acting for the immigrants in question, and even certain members of the government appear to support the criticism of the lawyers. The position appears to have escalated in the wake of discussion of, and opposition to, the government’s proposals to transfer asylum seekers to Rwanda. That is our summary description of the applicant’s case, and we accept the case to that extent.
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We are, on the other hand, unable to reach any conclusion on the level of public interest in YSA’s case. Naturally enough, the papers in our bundles refer to little else, but they are spread over a considerable period of time during which, no doubt, many other things, of greater and lesser importance, were the subject of press reports and editorial comment. Other than an occasion when (certainly not as a result of adverse press reports) members of the public did intervene in YSA’s case, we have not been shown that YSA’s history or treatment or appeals has prompted or is likely to prompt any person to commit an offence of any sort. Nor is there any suggestion that the authorities, whether government or police, would condone any such offence or do anything other than provide an appropriate level of protection to anybody at risk.
Mr Speker drew our attention to a number of other events, including the following. First, there are press reports that the (then) Home Secretary met the victim of a serious crime committed by YSA and gave an assurance that he would be deported. This is said to show both a high level of...
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