Social media and the duty of candour in age assessment proceedings

The Upper Tribunal has issued guidance on the use of material from an applicant’s social media accounts in age assessment proceedings in R (BG) v LB Hackney [2022] UKUT 00338 (IAC).

The brief facts

The standard directions made by the Upper Tribunal in age assessment proceedings required the asylum seeker to give access to their social media accounts, including their usernames and passwords, for local authority respondents to inspect. Where the applicant had a Facebook account, their “full timeline of activities” and “locations of access” should be given.

BG was an age-disputed asylum-seeker. After the standard directions were made in BG’s case, it was confirmed that no application had been made by the local authority for specific disclosure of any social media material at the case management hearing which preceded the making of those directions. The Judge had directed they were “standard” directions, made as a matter “of course”.

The challenge to the standard directions

BG challenged those directions as being contrary to his rights to private life and freedom of expression under Articles 8 and 10 of the European Convention on Human Rights. This is because they were too broad and ill-defined to be proportionate, sufficiently clear and specific to be capable of fair and effective compliance, or consistent with the duty of candour.

He submitted that directions for specific disclosure should be made on the application of a party and for proper reasons. They should not be made as a matter “of course”. The proper test was whether disclosure was necessary to resolve the matter fairly and justly.

It is useful here to highlight that there is a prima facie connection between the standard directions being challenged, and the duty of candour (covered here). This is because the standard directions purport to reflect the applicant’s duty of candour by requiring them to provide the Tribunal with all relevant facts to the decision being challenged (here, the applicant’s age). The Tribunal confirmed that the duty of candour applies “in precisely the same way” in judicial review proceedings in the Upper Tribunal as it does in the Administrative Court.

The decision

The Tribunal said that an applicant’s duty of candour in judicial review extends not only to disclosing documents adverse to his claim, but also to drawing the significance of those documents to the attention of the judge considering the application.

In age assessment proceedings, although the duty of candour in respect of the applicant applies to the age-disputed asylum seeker personally, the obligation to supervise a search to comply with the duty to disclose all relevant material fell with the applicant’s solicitor. This is because they are the person who is “suitably trained and experienced” in representing a young person seeking asylum. They would be obliged to, for example, disclose any express statement of the applicant’s date of birth, whether on social media or otherwise.

Seen in this context (that the duty of candour already applies), the Tribunal considered whether the standard directions may be thought to serve no practical purpose. Against this, however, they also opined that the usual orders of the Tribunal were partially justified as it was their experience that the obligations imposed by the duty of candour were not always understood. For example, there have been cases which settled at a late stage following the local authorities’ discovery of social media material casting doubt on an applicant’s claimed age.

The “middle-ground” position the Tribunal settled upon was to require a “disclosure statement” from an applicant’s solicitor. This would confirm that the applicant has disclosed to them the details of their social media accounts and that the solicitor had undertaken a reasonable and proportionate search of those accounts to ensure that all documents relevant to the issues in the case have been disclosed. This was essentially a statement confirming that the duty of candour (specific to age assessment proceedings) had been complied with.

In respect of applications for specific disclosure, which the previous standard directions were, the Tribunal considered that a “disclosure statement” given by a solicitor would point strongly against such orders being made, due to the trust given by the Tribunal to such statements by officers of the Court. Given the interference with article 8 private life rights caused by compelling an applicant to give access to their social media accounts, the Tribunal could not “see how it would ever be proportionate to expect an applicant who has confirmed that they have complied with their duty of candour to submit to such wide-ranging scrutiny”.

In any event, for such orders to be made, an application for specific disclosure would be required. Any judge must take into consideration whether a less intrusive measure could be used when considering the issue of proportionality, given the interference with the applicant’s private life that such orders have. Where any such application is made, there must be a specific “target” for disclosure. “Fishing” expeditions are prohibited, including desires by local authorities to have access to an applicant’s entire social media footprint. Concerns will always arise relating to privacy and legal professional privilege.

In the present case, the standard directions were set aside. Both parties agreed to an order that included an undertaking that the applicant’s solicitor would carry out the search and disclosure in a “disclosure statement”, as referred above.