Immigration lawyers fail with challenge to secret evidence

Topics: Immigration,Courts business

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A rule that allows decisions in immigration appeals to be based on undisclosed evidence is not unlawful, the High Court has ruled. 

The Immigration Law Practitioners Association (ILPA) had claimed that the rule, which applies in the first-tier tribunal, and the immigration and asylum chamber, was unfair. It also claimed that the tribunal procedure committee, which created it, did not have the statutory powers to make such a rule.

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Rule 13 (2), which was adopted in 2014, permitted the tribunal to prohibit the disclosure of information or documents to a person, including an appellant, if the disclosure was likely to cause them or someone else serious harm.

It replaced a previous rule which said that tribunals ‘must not take account of any evidence that has not been available to all parties’.

The association argued that this created closed material procedures, otherwise known as secret trials, which would ‘enormously disadvantage’ the appellant.

It also said that a provision which allows for disclosure to a representative does not make the rule any fairer, as it is unethical for a legal representative to act on the basis of information they cannot discuss with their client.  

But Mr Justice Blake (pictured) said the committee did have the authority to make the rule and that the rules do not give a mandate to a judge to authorise a secret trial.

In Immigration Law Practitioners Association, R (On the Application Of) v Tribunal Procedure Committee & Anor [2016] EWHC 218 (Admin) (15 February), he said: ‘I cannot consider that rule 13(2) gives rise to a systematic or inherent lack of fairness, since I cannot envisage it will be used to make a closed substantive decision in the manner contended for by the claimant.’

He said that even if a judge does use the rule to order a secret trial, it is at least likely ‘to be such a rare and unusual case, where the competing considerations would have to be examined on their individual facts’.

Blake also pointed out that lawyers are not prohibited by professional conduct rules from acting for a client based on information not disclosed to them.   

But he did recognise that ‘the very existence’ of the power to order a secret trial is ’troubling’, suggesting it is an issue on which the chamber president or the senior president of the tribunals issued guidance on.

In his ruling, Blake also applied a narrower definition of when the rules could be implemented than the committee had originally outlined.

When creating the rule, the tribunal procedure committee had envisaged that the rule could be used in circumstances such as when an appellant’s spouse claims they have been forced to give false evidence about their marriage status and fears reprisals if they do not.

But Blake said that this was not be a sufficient basis for a judge to authorise a secret trial ‘in clear breach of the most basic principles of a fair hearing’.

Ronan Toal, trustee of ILPA, commented: ‘Our challenge did not succeed, but the terms of the judgment take the sting out of that. While it is held that the rule can be applied in a lawful manner, this does not include its being applied in any of the ways we had contended were unlawful.  The challenge has thus achieved a helpful clarification.’

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