Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2022-000715
(pa/00704/2021)

THE IMMIGRATION ACTS

Promulgated on

9 December 2022

Before

THE HON. MR JUSTICE LANE, PRESIDENT
MR C M G OCKELTON, VICE PRESIDENT

Between

Y S A
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
and

ASSOCIATED NEWSPAPERS LTD
Interested Party

ORDER

Under rule 14 of the Tribunal Procedure (Upper Tribunal) Rule 2008
1. Unless or until a Tribunal or Court directs otherwise, there shall be no report or other publication of these proceedings in any manner likely to lead members of the public to identify the appellant.
2. This order applies to the parties, their representatives, and all other persons.
3. Unless extended by order of a Court or Tribunal, this order expires on the first day of the fifteenth week after the appellant’s removal from the United Kingdom.
4. Failure to comply with this order may amount to a contempt of Court.
OBSERVATIONS
1. This Tribunal, differently constituted, heard the appellant’s appeal on 12 July 2022. The Tribunal’s decision has not yet been sent to the parties. The appeal has a considerable history. There are already in force a number of orders similar in terms to the order above (but without the expiry date). Those orders were made in a judicial review application in this Tribunal by Judge Perkins on 22 October 2019 and by Foster J on 10 July 2020, and by the Court of Appeal on 24 November 2020; and in this appeal by the First-tier Tribunal on 7 July 2022.
2. The interested party, Associated Newspapers Ltd, seeks an order discharging the orders made by this Tribunal in the judicial review proceedings and by the First-tier Tribunal in this appeal, so allowing publication of the details and the history of the present appeal. That application is resisted by both the appellant and the respondent.
3. So far as jurisdiction is concerned, the Tribunal has power to make an order of this sort under rule 14. It retains the power to vary or discharge such an order after proceedings have been concluded: News Group Newspapers Ltd v Cokaj [2021] UKUT 0202.
4. It is recognised that any order of this sort is an interference with article 10 of the European Convention on Human Rights. The interested party seeks discharge of the orders in order to promote freedom of speech and of information. It asserts not merely that there is a public interest in the information being available, but, in addition, relies on an assertion that if news is not published promptly, it is of less interest to those to whom it is communicated.
5. There are countervailing interests to take into account. On the appellant’s side, the proceedings have had to consider in detail a number of matters relating to his own history and his health. It is said on his behalf that the interference with his right to private life which would be caused by publication of those details is not justified by the public interest in publication of them. It is also said on his behalf that he is or may be at risk of ill-treatment in this country if the procedural history of his claim and appeal become a matter of public knowledge. The respondent points out that the appellant’s history is one of resisting removal and that, in the respondent’s submission, the appellant’s history demonstrates that he will take whatever steps he can to avoid removal from the United Kingdom. In these circumstances it is in the public interest to avoid giving him any spurious basis for any further claim resisting removal, and that an order preventing his identification as the person involved in these proceedings has a further clear public interest justification as promoting the interests of justice in enabling decisions of the Tribunal to be effected, and in the pursuance of immigration control. Similar considerations helped to justify the anonymity order in A v BBC [2014] UKSC 25.
6. We need to strike the appropriate balance between the competing rights and interests, in the manner exemplified by the Supreme Court in Guardian News and Media Ltd’s application [2010] UKSC 1.
7. In response to the appellant’s article 8 argument, the interested party asserts that it is not concerned to report intimate details of the appellant’s health and private life, but only to make public those parts of his dealings with the immigration authorities that would be of concern on a news item on that subject. We are perfectly prepared to accept that; but if the present orders are lifted, everybody else will be at liberty to make whatever use they choose of the information so revealed. The lawfulness of the orders cannot turn on the proposed use of the information by one single interested party. We also treat with some caution the assertion that news needs to be published in full promptly. Similar assertions were made in the Guardian case, and were apparently treated with a degree of benevolence, but there is no clear indication that they form part of the reasoning behind the eventual decision. It appears to us that although the ability to produce a complete, detailed, prompt and sensational report may be in the interest of the publisher, the public interest, properly considered, is less demanding. Nevertheless, this aspect of the interested party’s case serves as a reminder that any restriction on publication is to that extent a breach of the right protected by article 10.
8. There is a considerable amount of information about the appellant already available to the public and to the interested party for publication. The appellant’s name and personal details add relatively little that is of genuinely public interest. The public interest in ensuring that the law can take its course is strong, and the risk to the appellant in this country, if his identity is disclosed, may not be negligible. On the other hand, none of the factors urged in favour of the maintenance of the order have any very great weight if the appellant is not in the United Kingdom; that is especially the case if he is to an extent resettled in his home country.
9. Balancing the competing interests as we do, we are satisfied, as at present advised, that it is right to maintain the existing orders preventing the identification of the appellant and applicant in the cases before this Tribunal. If, however, he is in due course removed, the balance will begin to swing the other way, and after a period of resettlement, the balance will be correctly struck in favour of the interested party’s application.
10. We have therefore made the order set out above.

C.M.G. Ockelton

C. M. G. OCKELTON
VICE PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Date: 7 December 2022