The Court of Appeal has backed a High Court decision that a mother and child’s asylum records must be disclosed in family proceedings. In H (A Child) (Disclosure of Asylum Documents) [2020] EWCA Civ 1001, the court rejected arguments that the family judge had failed to attach sufficient weight to the need for confidentiality in the asylum process.

The Court of Appeal approved the balancing exercise conducted by the lower court in its two earlier judgments involving the family, agreeing there was no right to absolute confidentiality. Each case had to be decided on its merits, balancing the rights of individuals against the public interest in confidentiality. 

Background 

The case involved a father seeking contact with his nine-year-old son who wanted to rely on documents generated in his ex-wife’s asylum claim. That claim was based on allegations of domestic and sexual abuse by him towards the woman and the couple’s son, H.

The mother’s asylum claim was initially refused but she was later granted leave as a refugee after an appeal to the First-tier Tribunal. H was granted leave as her dependant but, in early 2020, an independent asylum claim was made on his behalf, based on the same facts. That claim was granted in May 2020.  

The issue of disclosure from the asylum claims arose in the context of family court proceedings about contact between father and child. As part of that process, the High Court was required to conduct a “finding of fact hearing”, to look at the allegations of physical assault and child sexual abuse.

The mother was willing to provide the Home Office decision letter and the First-tier Tribunal decision but did not wish to share other documents, such as witness statements and her asylum interview record. 

The father said that natural interests of justice and his right to a fair trial, as protected by Article 6 of the European Convention on Human Rights (ECHR), meant he should be entitled to full disclosure of all material generated by her claim. 

The Home Office, which intervened in the case, argued there should be absolute confidentiality in asylum claims, in order to protect claimants and protect confidence in the asylum system overall. The department stressed that claimants might withhold information if they feared it would be shared with their persecutors. 

The previous judgments

In its first decision, R v Secretary of State for the Home Department (Disclosure of Asylum Records) [2019] EWHC 3147 (Fam), the High Court clarified the general principles and procedures applicable where one party in private law family proceedings wants to access documentation generated in an asylum claim. 

If a party does not want the other side to know of a document’s existence, they can apply to the court for an order on this basis, with evidence as to why disclosure would damage the public interest.  Alternatively, they can apply to the court if they do not want the other side to have sight of a document that the other party already knows about but which it has not yet seen.  

The court will probably then need to see the document in question in order to reach a decision, and may invite the Home Office’s input.  

In reaching its final decision, the court will be required to undertake: 

a balancing exercise that weighs the rights of each individual concerned (including third parties whose rights may be affected by disclosure, for example family members who remain in the refugee’s country of origin), the welfare of the subject child or children and the confidential nature of the documents that are the subject of the application and the wider public interest in maintaining public confidence in the asylum process [paragraph 68].

In the second judgment, R v Secretary of State for the Home Department (No. 2) [2020] EWHC 1036 (Fam), the High Court applied those principles to this particular case, ordering the disclosure of certain documents. 

It accepted there was a theoretical risk to the mother and son in their home country but said this would not arise in practice as they now had permission to live in the UK. Information about third parties who had helped the mother could be redacted to keep them safe.  

The court also recognised that the asylum process was founded on a belief in its confidentiality and said the “public interest must attract significant weight in the balancing exercise”.

Factors in favour of disclosure were the father’s Article 6 right to a fair trial, and his right to family life with his son under Article 8. Any decision-making process that could rob him of this right should be conducted in a procedurally fair manner – in other words, he should be able to see all allegations against him in order to address them.  

The son’s rights were equally relevant to the decision, said the court. H’s right to a family life with his father was at stake and the court had a duty to make a decision that was in the son’s best interests, which required all relevant information to be considered.  

Ultimately the court found that although there was a strong public interest in maintaining the confidentiality of the asylum system, this could be overridden by competing rights — in this case the Article 6 and 8 rights of father and son, and by the best interests of the latter. It accordingly directed the disclosure of specific documents from the mother’s asylum claim with various redactions. 

Court of Appeal findings

The mother’s and Home Office’s onward appeal argued the High Court had failed to attach sufficient weight to the right of confidentiality at stake — both in regard to the persecutor (in this case the father) and the public interest in protecting the asylum process. 

The Court of Appeal disagreed, stating the judge had identified the correct principles of law and applied them in a way that was “fully within his discretion”.

It considered the case raised issues that were well established at law whenever a party asserts exemption from disclosure in family proceedings. The same principles applied in a range of other situations, the Court of Appeal noted, including police records, local authority files, central government records, medical information and so on. 

While the weight to be attached to the confidentiality of information varies from case to case, the approach to the balancing exercise is the same, said the court: 

… the judge must conduct a balancing exercise, having regard to the competing ECHR rights, in particular the fair trial rights of the party seeking disclosure or inspection and the privacy or confidentiality rights of the other party and any person whose rights may require protection, bearing in mind that the denial of disclosure or inspection is limited to circumstances where such denial is strictly necessary.

One point repeatedly raised by the mother and Secretary of State was the fact that paragraph 339I of the Immigration Rules imposes an absolute prohibition on the disclosure of information to an alleged persecutor. 

But the court noted that the paragraph’s preliminary wording makes clear this prohibition only applies during the course of examining a claim. There was never any suggestion that material should be disclosed while a claim is ongoing. 

Nevertheless, the appellants took issue with the fact the High Court ordered disclosure while the son’s claim was pending, suggesting this could have an adverse impact on the willingness of the child to provide information in the course of the asylum claim. 

This argument made no headway. In this particular case, said the court, the material used in the son’s case would be the same as the mother’s case, so this would not be affected by the disclosure order. 

The overall thrust of the judgment can be summed up in the concurring judgment of Lord Justice Peter Jackson. He gave short shrift to the arguments raised by all parties throughout the course of proceedings, which he dismissed as “jostling for position”. 

In fact, he said, the fundamental legal principles had never been in dispute and the submissions had merely sought to persuade the family judge to give preferential treatment to either confidentiality or to procedural fairness. 

Does this mean less privacy for asylum claims?

The Court of Appeal was at pains to emphasise the case involved established legal principles already applicable to a range of situations. 

In fact, the leading judgment of Baker LJ appeared to reject the idea that asylum claims had ever constituted a special case:

For my part, I am not persuaded that the confidentiality of information relied on by an asylum applicant should be treated any differently from other categories of confidential information. The fact that the information was provided to the asylum authority on a confidential basis, and the public interest in maintaining the confidentiality of the asylum process, are both factors which the judge must take into account.

But Mr Justice Peter Jackson expressed “some hesitancy about the outcome” in light of the asylum element of the proceedings. He indicated he would have probably reached a different conclusion to the High Court but the family judge had been entitled to reach the decision he had. 

While it remains unclear for now whether any “special status” attaches to asylum claims, ultimately this decision will make no practical difference to any such cases (likely to be very few in number) and is certainly no cause for alarm. 

Each case will continue to be determined on its own facts, with confidentiality always weighing against disclosure. These are quite an exceptional set of facts and the Court of Appeal made clear that although the balancing exercise may be the same in a range of cases, the weight in favour of confidentiality will always be particularly high in asylum matters — irrespective of any special status.

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