Blog post by Farin Anthony, who has recently completed the MA in Refugee Protection and Forced Migration Studies
The First-tier Tribunal Immigration and Asylum Chamber (“FtTIAC”) are responsible for deciding appeals against decisions made by the UK government relating to asylum/protection claims, removal and deportation from the UK, as well as entry to the UK. Decisions by judges of the FtTIAC, sent to the parties in each case, are commonly known as “promulgated” FtTIAC decisions. Promulgated FtTIAC decisions are unpublished and not available to the public. How then does one go about seeking access to unpublished promulgated decisions for research purposes?
I had to grapple with this issue in September 2021 when drafting my dissertation research proposal for the MA in Refugee Protection and Forced Migration Studies at the School of Advanced Study, University of London. For the purpose of my research, I needed access to FtTIAC asylum/protection decisions promulgated in the period from 1 January 2021 to 31 July 2021 (both dates inclusive), for applicants from two countries of origin, Iraq and Afghanistan. In order to access and carry out research on promulgated FtTIAC decisions, it was necessary to obtain permission to access those decisions.
This blog post outlines the lengthy and bureaucratic process of trying to gain access to these decisions. The blog post will also analyse the decision to refuse access in light of the guidance on anonymity and reporting restrictions, and the “open justice principle”.
How to Seek Access to Promulgated FtTIAC Decisions?
In keeping with the published guidance on how to seek access to such decisions, I made my application to the (then) FtTIAC President Judge Clements in September 2021. President Judge Clements directed the query to the Senior President of the Tribunals’ (“SPT”) Office, who in September 2021, signposted the request to the Data Access Panel of Her Majesty’s Courts and Tribunal Service (“HMCTS”). The Data Access Panel required the completion of a 51 page application form for researchers seeking secure access to data together with a proposed data management plan. This was completed in April 2022. Although I had already gained ethical approval from the University of London for my research project, further approval was sought from the University of London before the application form was submitted to the Data Access Panel.
On 15 June 2022, the Head of Data Access, Paul Jackson refused the application on the basis that it should be considered by a “relevant decision-maker in the judiciary”. In refusing the application, Paul Jackson stated the Panel considered the “proposed research to be methodologically sound and in the public interest”. However, given the data requested were unpublished decisions and “sensitive”, the Panel took the view that the decision on whether to grant access was the “proper remit of the judiciary”. The application was then referred back to the SPT’s Office.
On 27 July 2022, the SPT’s Office maintained that correct advice was given to me in September 2021 and referred to a “disparity of views as to whose decision it is to agree access to these judgments”. The SPT’s Office stated that they would seek advice from the “Senior President’s Legal Adviser and colleagues in the secretariat to the Judicial Data Protection Panel”. The SPT’s Office stated there was “no precedent” for the Judicial Office (or senior judiciary) agreeing access to court records after the Data Access Panel had refused the application or decided that such a decision was outside their remit.
On 29 September 2022, the SPT’s Office redirected the application for access to promulgated FtTIAC decisions back to President Judge Clements. On 4 October 2022, President Judge Clements responded stating he was retiring at the end of October 2022 and that he would place the application for consideration by his successor, FtTIAC President Judge Plimmer.
Refusal of Access to Promulgated FtTIAC Decisions
On 22 November 2022, President Judge Plimmer responded to my request for access to promulgated FtTIAC decisions. President Judge Plimmer stated she had considered my application in light of the “relevant legal framework including the guidance in Dring v Cape [2019] UKSC 38”. President Judge Plimmer stated she had carried out a balancing exercise between the “open justice principle” against any “risk of harm which disclosure may cause to the maintenance of an effective judicial process”.
President Judge Plimmer stated that asylum applicants are generally entitled to anonymity but not all decisions will have included an anonymity order. President Judge Plimmer stated that it was estimated there would be 887 decisions which may fall within the requested cohort. Therefore, the administrative burden involved in checking for anonymisation would be “significant and impracticable”. President Judge Plimmer concluded that the administrative and judicial demands intrinsic in the extent of disclosure sought were disproportionate to the benefits of open justice and disclosure.
Broadly, there were two issues identified in President Judge Plimmer’s rejection of my application for access to promulgated decisions. Firstly, that asylum applicants are generally entitled to anonymity but not all decisions will have included an anonymity order and secondly, the administrative burden of checking for anonymisation and in the absence of such, carrying out the anonymisation of the decisions before it can be made available for this research. My analysis of President Judge Plimmer’s response is divided into two parts, firstly dealing with FtTIAC decisions subject to an anonymity order and secondly those not subject to an anonymity order.
FtTIAC Decisions Subject to an Anonymity Order
The powers to make an anonymity order is contained in Rule 13(1) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (“Tribunal Procedure Rules”). Rule 13(1)(b) enables the Tribunal to make an order prohibiting the disclosure or publication of any matter likely to lead members of the public to identify any person whom the Tribunal considers should not be identified.
The guidance to Anonymity Orders and Directions is set out in the Presidential Guidance Note No 2 of 2022: Anonymity Orders and Directions regarding the use of documents and information in the First-tier Tribunal (Immigration and Asylum Chamber) (“Presidential Guidance Note”). All protection appeals are given anonymity at case creation as an interim order i.e. the order does not run indefinitely and that it is a judicial decision whether the interim order made at case creation should continue.
Therefore, FtTIAC judges are expected to have actively engaged with the question of anonymity before making a decision on whether it should continue or come to an end, weighing up the need for open justice against any competing interests. The Presidential Guidance Note gives a suggested wording at paragraph 22 for bringing anonymity orders to an end on conclusion of proceedings. It would seem that the suggested order at paragraph 22 only applies when an FtTIAC judge dismisses a protection claim and not when the protection claim is allowed.
In the case of FtTIAC decisions subject to an anonymity order, the Presidential Guidance Note sets out in paragraph 32 what is expected of FtTIAC judges i.e. there is an expectation the entire decision has been anonymised so there is no risk of identification. If anonymisation has been carried out properly in accordance with the Presidential Guidance Note, there is arguably no legal reason why decisions subject to an anonymity order could not be made available to any researcher seeking access without undue administrative burden. This would apply to both decisions subject to an indefinite anonymity order and those subject to a time limited anonymity order which expire on conclusion of proceedings. Both types are likely to have had the names of the appellant, family members and witnesses removed to reduce the risk of identification.
It is unclear whether there is a concern that FtTIAC judges have not sufficiently anonymised decisions subject to an anonymity order in accordance with paragraph 32 of the Presidential Guidance Note i.e. removing names of the appellant, family members and witnesses. FtTIAC President Judge Plimmer’s response did not refer to such a concern. If there is such a concern and/or this was an implied concern/reason for refusing access to the promulgated decisions, then it is argued that this concern needs to be urgently addressed in the interest of transparency and open justice. If no such concern arises, then as argued above, there is no legal reason why decisions subject to an anonymity order could not be made available to a researcher or research body seeking access to promulgated decisions without undue administrative burden.
FtTIAC Decisions Not Subject to an Anonymity Order
In rejecting the request for access to promulgated FtTIAC decisions, President Judge Plimmer was also concerned with the fact asylum applicants were generally entitled to an anonymity order but not all decisions will have included an anonymity order. President Judge Plimmer held that the administrative burden involved in checking for anonymisation and carrying out the redaction would be “significant and impracticable”.
Two issues arise from this concern. Firstly, given FtTIAC judges are required to engage with the issue of anonymity before deciding whether to grant anonymity, it can be presumed that where no anonymity order has been made, the FtTIAC judge considered it inappropriate to make such an order. As the Supreme Court has emphasised in Kambadzi v Secretary of State for the Home Department [2011] UKSC 23, anonymity must be justified on a case by case basis. The Supreme Court held at paragraph 6 that “it is no longer the case that all asylum seekers as a class are entitled to anonymity in this court. The making of an order has to be justified.”
Secondly, in what circumstances can a retrospective anonymity order be granted if one was not granted at the time of the proceedings? The Presidential Guidance Note at paragraph 11 would appear to suggest the FtTIAC do not have such powers to retrospectively vary or amend any direction after appeal proceedings have concluded. If a retrospective anonymity order is not possible, it is unclear in what circumstances retrospective anonymisation can be ordered by the FtTIAC before decisions are made available to any researcher seeking access.
Paragraph 11 of the Presidential Guidance Note states that “an anonymity order for an indefinite period (one that continues beyond completion of the proceedings) should be made only exceptionally and where there is strong justification for doing so.” It is argued that this is supported by the ratio in Smith (appealable decisions; PTA requirements; anonymity) [2019] UKUT 00216 (IAC) where it was held that:
“In most cases involving international protection, anonymity of an individual will be required, lest the proceedings themselves should aggravate or give rise to such a risk. That will normally be the case throughout the course of the proceedings, including any appeals.”
It would seem from Smith and paragraph 11 of the Presidential Guidance Note that anonymity orders should only exceptionally, continue beyond proceedings in protection claims and where there is strong justification for doing so.
Open Justice Principle
The purpose of the “open justice principle” are two-fold. The first is to enable public scrutiny of the way in which courts decide cases, to hold judges to account for the decisions they make and to enable the public to have confidence that judges are doing their job properly. The second is to enable the public to understand how the justice system works and why decisions are taken (Cape Intermediate Holdings v Dring [2019] UKSC 38, per Lady Hale at [42] and [43]).
The FtTIAC is one of the largest of the seven Chambers of the First-tier Tribunal. In 2020-2021, the FtTIAC disposed of 20,000 appeals. In 2021-2022, the FtTIAC disposed of 41,000 appeals. Of those, approximately 25% of disposals relate to protection claims. Given the significant number of disposals, it is argued that, in the interest of greater openness and transparency, public scrutiny of FtTIAC decisions should be made possible.
It should be noted that the Employment Tribunal has been publishing all of its decisions since February 2017. Whilst it is acknowledged that the nature of the work in the Employment Tribunal is different, it is argued that, in itself, is an insufficient reason to refuse access to FtTIAC decisions for research purposes.
The Way Forward
Following on from my analysis above, I suggest that FtTIAC decisions subject to an anonymity order could be made available to any researcher seeking access without undue administrative burden. However, this relies on judicial decision-makers having already adequately anonymised decisions to reduce the risk of identification. If there is a concern that FtTIAC judges are not adequately anonymising decisions subject to an anonymity order, it is argued that this is a training matter for the Judicial College to address in the interest of transparency and open justice. If no such concern arises, then as argued above, there is arguably no legal reason why decisions subject to an anonymity order could not be made available to a researcher or research body seeking access to promulgated decisions without undue administrative burden.
As for the decisions not subject to an anonymity order, given the need to engage with the issue of anonymity before making a decision on anonymity, it is arguable the FtTIAC did not consider it appropriate to make an order in those cases. It is also clear from my analysis above that there is no power post-decision, for another judge to retrospectively vary or amend a decision to make no anonymity order. There is arguably no legal reason why decisions not subject to an anonymity order could not be made available to a researcher or research body seeking access to promulgated decisions without undue administrative burden.
One other possible solution going forward is for the FtTIAC to consider periodic publishing of some anonymised decisions. This approach would satisfy the dual considerations of the principle of open justice and minimising any undue administrative burden. It is argued that periodic publishing may not be as burdensome as publishing all decisions as the administrative burden involved can be managed within the workload of HMCTS. However, over time, there is no reason in principle why the FtTIAC could not move onto a system of publishing all decisions. As stated above, the Employment Tribunal is an excellent example of a first instance Tribunal within the Court and Tribunal structure which has been publishing all of its decisions since February 2017.
Transparency and Open Justice Board
On 30 April 2024, the Lady Chief Justice created a new Transparency and Open Justice Board. The Board’s terms of reference is to lead, coordinate and promote transparency and open justice across the Courts and Tribunals. On 9 July 2024, the board called for expressions of interest for a Media Stakeholder Committee. It is anticipated that following engagement with interested parties, the Board will establish appropriate sub committees in each jurisdiction, including in the FtTIAC, with a view to identifying the obstacles to achieving its objectives.
Conclusion
It is clear the FtTIAC will, in the near future, need to consider and adopt more permanent and structural changes to the way in which the “open justice principle” can be effectively applied to facilitate public scrutiny of FtTIAC decisions. In the meantime however, it is hoped the above analysis will benefit future researchers who may wish to undertake research of promulgated FtTIAC decisions. Although I was unsuccessful in obtaining the required data for my research, it is hoped that the above arguments will in due course pave the way for more public scrutiny of how Courts and Tribunals decide cases, to hold judges to account for the decisions they make, to enable the public to have confidence that judges are doing their job properly and to enable the public to understand how the justice system works and why decisions are taken.
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