CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59 (IAC) is important not only as Country Guidance on Zimbabwe but also on the law of evidence in the immigration tribunal.

The broad effect of the Country Guidance findings are summarised in the headnote, already posted up last week on the blog. Essentially, the earlier EM [2011] UKUT 98 (IAC) guidance is restored subject to a modification flowing from the Supreme Court decision in RT (Zimbabwe) on the right to apathy.

What interests me here are some of the procedural points that arose in the course of reaching the determination. There are three general issues the tribunal addresses, all on the subject of evidence: (i) the extent to which the Secretary of State is under a duty of disclosure, (ii) the practicalities surrounding that duty including Public Interest Immunity certificates and (iii) the admissibility of and weight to be attached to anonymous evidence.

Duty of disclosure

Firstly, the tribunal addresses the issue of how far the Secretary of State is under a duty of disclosure in asylum cases, concluding that “there is no general requirement for disclosure of all relevant data held by the Home Secretary or indeed the Foreign Secretary in asylum appeals”. In reaching this conclusion the tribunal notes that there is no general duty of disclosure imposed by the First-tier or Upper Tribunal procedure rules then turns to the case law. In R v SSHD ex p Kerrouche No 1 [1997] Imm AR 610 Lord Woolf said:

The obligation of the Secretary of State cannot be put higher than that he must not knowingly mislead. Before the Secretary of State could be said to be in that position, he must know or ought to have known that the material which it is said he should have disclosed materially detracts from that on which he has relied.

Maurice Kay J (as he then was) went perhaps a little further in R (ota Cindo) v IAT [2002] EWHC 246 (Admin) and held that the words ‘ought to have known’ pointed to constructive knowledge.

This seems likely to be a bit of a slow burner. The problem is that without any monitoring and while the Secretary of State uses highly compromised advocates whose success rates are monitored (I refer here to Presenting Officers) it is unlikely that any breach of this duty will emerge, other than in occasional cases that reach the higher courts, and then only rarely. For example, will the existence of a case or policy unhelpful to the Home Office be disclosed to a judge to avoid the Presenting Officer making submissions that he or she ought to have known are misleading? Is the Secretary of State going to keep an eye on allowed asylum decisions in order to monitor potential problems or trends in different countries? Not likely.

Public Interest Immunity

Secondly, the tribunal looks at how the issue of disclosure might be handled in a hotly contested case. The tribunal has the power to order disclosure and should do so where it seems appropriate. The duty on the Secretary of State does not depend on an order for disclosure, though. In this case, it emerged that the order for disclosure would trigger imposition of a Public Interest Immunity (PII) certificate by the Secretary of State for Foreign Affairs. This would potentially lead to satellite litigation and delay resolution considerably.

The novel solution proposed by the appellants and accepted by the tribunal was to invite the Attorney General to appoint a Public Interest Immunity advocate who would review the contentious material, discuss with the judges and inform the judges as to any orders for disclosure despite the PII certificate.

This is a role I have myself performed on behalf of local authorities where a social services department has been ordered to provide relevant evidence from its records for the purposes of a criminal trial. It is an odd process involving a great deal of reading, insertion of a lot of post it notes and a long afternoon with a very patient judge. In passing, I’d have thought it ought to have been an advocate on behalf of the Foreign Office who would have performed the task in this instance rather than one appointed by the Attorney General.

This approach would seem sensible in weighty Country Guidance cases where there is a mass of evidence and the issue is one in which the Foreign and Commonwealth Office takes an interest.

Anonymous evidence

Thirdly, the tribunal turns to the issue of the admissibility of and weight to be attached to anonymous source evidence in the tribunal. This was the subject of comment by Strasbourg in the case of Sufi and Elmi [2011] ECHR 1045. The tribunal rejected the notion that anonymous evidence was inadmissible in asylum cases, commenting that this went far beyond that Strasbourg had suggested in Sufi and Elmi and NA v UK and observing that the value of such evidence was a matter of evaluation for the tribunal:

155… the United Kingdom’s Procedure Rules enable the Tribunal to receive any information whether admissible in civil proceedings or not. Flexibility in receiving relevant information where the subject matter concerns people and places outside of the United Kingdom is an important aspect of Tribunal justice. With the exception of evidence demonstrated to have been obtained by torture, human rights norms do not mandate exclusion of evidence in proceedings that are not criminal in character.

The tribunal also observed that anonymous evidence might well be relied on by either party in an asylum context:

157. Anonymous material is not infrequently relied on by appellants as indicative of deteriorating conditions or general risk. The Tribunal should be free to accept such material but will do its best to evaluate by reference to what if anything is known about the source, the circumstances in which information was given and the overall context of the issues it relates to and the rest of the evidence available.

Certain immigration law geeks have queried for years whether there is a ‘law of evidence’ in immigration and asylum appeals. The President seems pretty sure there isn’t. Almost anything goes.