The impact of disclosing information from family proceedings in immigration matters has been in the news of late but the reverse situation rarely arises. One such is the recent case of R v Secretary of State for the Home Department (Disclosure of Asylum Records) [2019] EWHC 3147 (Fam), which explored the issue in some detail.

The starting position with most immigration matters is they are a matter of public record anyway, meaning there’s nothing controversial about sharing their content with family courts. But there are some exceptions. 

The first is where a specific application is made for anonymity or a prohibition on disclosure under Rules 13 or 14 of the First-tier and Upper Tribunal Rules. The second is where the facts involve an asylum claim, and this was the situation with R, in which the Home Office was an intervenor. 

Background to the case

The case involved an asylum claim by a woman alleging that she and her child were at risk from her husband. She said they couldn’t rely on police protection in their home country due to his family connections. She alleged that she herself had been the victim of domestic abuse but only fled the family home with her son after witnessing her husband sexually abuse their child.

The Home Office initially refused the claim but it was successful on appeal. The mother was granted five years’ leave as a refugee, with her son granted leave as her dependant. 

Meanwhile, the father sought to have the child returned to his home country on the basis of the 1980 Hague Convention, which covers international abduction cases. But these proceedings were subsequently dropped, with the father apparently agreeing the child should be allowed to remain in the UK. 

The issue of disclosure from the mother’s asylum matter arose in the context of subsequent family court proceedings looking at appropriate levels and forms of 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.

Disclosure issues

The mother was willing to share the Home Office original refusal letter and the tribunal’s decision in her favour, but argued that other material provided during the asylum claim should be confidential. In particular, she feared that third parties who supported her claim could be in difficulty if the father learned of their help. 

The father argued that the natural interests of justice and his right to a fair trial, as protected by Article 6 of the European Convention of Human Rights, meant he should be entitled to full disclosure of all material raised in her claim. In particular, he said the Supreme Court decision of R v McGeough [2015] UKSC 62 had established the principle that information disclosed during the course of an asylum application does not have the “general character of confidentiality”.

The Home Office argued that refugees would be deterred from claiming asylum if they feared details could be made public or shared with alleged persecutors. On this basis, it said confidentiality was necessary as a matter of public interest in order to maintain confidence in the asylum system as a whole.

In support of this, the Home Office pointed to paragraph 339IA of the Immigration Rules:

339IA. For the purposes of examining individual applications for asylum

(i) information provided in support of an application and the fact that an application has been made shall not be disclosed to the alleged actor(s) of persecution of the applicant, and

(ii) information shall not be obtained from the alleged actor(s) of persecution that would result in their being directly informed that an application for asylum has been made by the applicant in question and would jeopardise the physical integrity of the applicant and their dependants, or the liberty and security of their family members still living in the country of origin.

This wording mirrors Article 22 of European Union Directive 2005/85/EC, which similarly prohibited disclosure to an alleged persecutor.

Balancing conflicting needs 

The High Court considered there were two significant factors in McGeough distinguishing it from the present case. Firstly, it involved an unsuccessful asylum claim, unlike the present case. Secondly, it involved a claim made in Sweden, where details of such claims are a matter of public record, unlike in the UK.

One of the key problems, the court accepted, was the fundamentally different nature and purpose of family proceedings and asylum proceedings, which placed them in opposition:

During the currency of the asylum claim the father has no right to know the allegations against him, no right to answer those allegations and cannot see the information that is said to evidence the conduct alleged. By contrast, during the currency of the subsequent proceedings under the Children Act 1989 the father has a cardinal right to know those same allegations against him, a cardinal right to answer those allegations and, ordinarily, is entitled to see the information that is said to evidence the conduct alleged. 

Ultimately, the court said, the tension should be resolved through a balancing exercise conducted within the framework of rule 23.1 of the Family Procedure Rules 2010. Rule 21.3 sets out the necessary steps for parties to family proceedings to request an order saying they don’t have to disclose documents. 

The court then looked at how this would work with direct reference to material from an asylum claim.

Firstly, it considered cases where one party seeks to withhold knowledge of the document’s very existence from the other side, which would require an application to the court supported by evidence as to why disclosure would damage the public interest. 

It then addressed situations where one party wants to prevent the other side from actually seeing a document they already know about. In all cases, the court may need to see the document in question to reach a decision and may invite the Home Office’s input.  

While it may be rare for asylum documents to be disclosed, the court said, this did not mean that a test of exceptionality applied. Instead, the decision is to be “determined by a balancing exercise undertaken on the principles, and within the procedural framework set out in this judgment”.

While the Home Office’s robust defence of absolute confidentiality is fairly ironic after its own past trip-ups, the judgment does its best to strike a fair balance for both parties. Ultimately, it is to be welcomed for setting out clear procedural steps to be followed in emotionally charged and distressing circumstances.

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