The High Court has looked further at when details of an asylum claim can be shared in family proceedings. The judgment in R v Secretary of State for the Home Department (No. 2) [2020] EWHC 1036 (Fam) applies previously established principles to a particular set of circumstances. It follows on from a previous hearing in the same case, R v Secretary of State for the Home Department (Disclosure of Asylum Records) [2019] EWHC 3147 (Fam).

As discussed in my previous post, the earlier judgment clarified the principles and procedures that apply where one party in private law family proceedings wants to see and rely on documentation generated in the course of an asylum claim.

Background 

The case involved a father, seeking contact with his young son, who wished to rely on documents from his ex-wife’s asylum claim. That claim, which was successful on appeal to the First-tier Tribunal, was based on allegations of domestic and sexual abuse by him towards the woman and the couple’s young son, H.

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

The father said 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. 

In particular, he focused on her credibility in relation to the allegations and whether this might be undermined by contradictions contained the material. 

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 Home Office stressed that claimants might withhold information if they feared it would be shared with their persecutors. 

Overview of the previous judgment

In its 2019 ruling in this case, the High Court refused to make any general findings about disclosure in such cases. Instead it reminded parties of the existing procedural options. 

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].

It was this balancing exercise that was the focus of the new judgment. 

The balancing exercise 

The High Court conducted its balancing exercise by first looking at the factors against disclosure. It said there were three potential risks.

The first was that harm might come to the mother or any third parties who had helped her and who had been identified in the asylum process. But Mr Justice MacDonald decided that as the mother now had the right to remain in the UK, she could not be risk in her home country. Information about third parties who had helped her could be redacted.

The second risk was to the son, H, if he returned to his country of origin. But like his mother, he now had permission to live in the UK. 

The third risk was to the public interest in that the asylum process was founded on a belief in its confidentiality. The court accepted that “that public interest must attract significant weight in the balancing exercise”.

The court then looked at factors in favour of disclosure. It considered that the father’s Article 6 right to a fair trial was engaged, as was 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.  

It concluded that “very significant weight” should be accorded to both sets of rights, noting that

it would be a highly unusual step to withhold from a parent facing serious allegations of domestic abuse and child sexual abuse evidence relevant to the determination of those allegations and a step requiring the strongest justification.

Having seen the documents in question in this particular case, the court rejected the suggestion they were irrelevant to the mother’s credibility. It found there were some discrepancies the father was entitled to raise. Conversely, the court could also take into account points on which the mother had been consistent. 

The son’s rights were equally relevant to the decision, said the court. Firstly, H’s right to a family life with his father was at stake. Secondly, 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. 

So are asylum records no longer confidential?

Seeing the application of the balancing exercise in action may be alarming for some, even if there is no actual change to the legal position. But it’s important to remember a number of key points. 

Firstly, there is no general principle in favour of disclosure here. Each case will be determined on its own facts, with confidentiality always weighing against disclosure. 

Secondly any such documentation can only be disclosed after the asylum claim has concluded. In other words, any decision reached in the family courts cannot impact the outcome of the asylum claim. It could theoretically come into play at the settlement stage — but this would be extremely unlikely as the outcome of any family court proceedings would itself be confidential. 

Finally, this case involved a very particular set of facts involving allegations of child sexual abuse. It is hard to think of many other situations in which the basis of an asylum claim would be so directly relevant to private law family proceedings.

In short, despite the outcome of this particular case, the actual judgment should provide reassurance that it will take a very unusual set of facts to outweigh the confidentiality principle where asylum claims are concerned.