Secretary of State for the Home Department v First-Tier Tribunal (Immigration and Asylum Chamber)

Introduction

1. This case concerns the circumstances in which the Upper Tribunal should, when exercising its judicial review powers, entertain a challenge to an interlocutory decision made by the First-tier Tribunal in the course of a statutory appeal; and, whether litigation privilege applies in proceedings before the First-tier Tribunal.

2. During the hearing of the interested party’s appeal against a decision of the applicant Secretary of State to deport him, the First-tier Tribunal ordered full disclosure to the interested party of a partially redacted email between two officials in the Foreign & Commonwealth Office (“FCO”). The applicant challenges that decision; the interested party seeks to support it. The First-tier Tribunal has taken no part in the proceedings.

3. The applicant asserts that the redacted parts of the document are protected by litigation privilege which has been properly claimed and that the FtT erred in law both in concluding that litigation privilege did not apply and in ordering disclosure. It is also argued that the reasons given for the decision are flawed.

4. The interested party submits first that the Upper Tribunal should not entertain the action as the applicant has an alternative remedy in pursuing an appeal to the Upper Tribunal against the final decision. He also submits that even if that is not an alternative remedy, the applicant has not met the very high threshold required before the Upper Tribunal would interfere with the decision.

5. The interested party argues that litigation privilege does not apply in the First-tier Tribunal; and, that if it does, it is not properly claimed here, either because it does not extend to communications between or within a third party, in this case the FCO, or because it has not been made out on the facts. It is also submitted that in any event, by producing the document, even in a redacted form, the applicant has waived privilege.

6. We turn first to how, why and in what context the email in issue was produced. Chronology

7. In February 2008 the interested party, WM, was convicted of offences under the Terrorism Act 2000 and under the Criminal Law Act 1967 arising out of the failed 21 July 2005 bombings in London. He was sentenced to 17 years’ imprisonment, reduced to 13 years on appeal. On 20 June 2013, the applicant made a deportation order against him, seeking to remove him to Somaliland. That decision was appealed to the First-tier Tribunal. There have been, we understand, numerous delays in the matter coming to trial and there has been a significant disclosure exercise undertaken.

8. The applicant relies in the proceedings before the First-tier Tribunal on the evidence of KR who works in the British Embassy in Ethiopia. In her supplementary statement of 3 March 2017, she explained that she had been made aware of an email between the FCO and the Home Office regarding a conversation between a British Embassy officer and the former Somaliland Minister of the Interior.

9. As part of the disclosure exercise, and in response to a request from the interested party’s solicitors, the applicant disclosed a copy of the email, redacted on the grounds that litigation privilege attached to it. That is confirmed by a witness statement by Mr James Eke of the FCO in which it is said that the email was sent with the dominant purpose of gathering evidence for finalising a Safety on Return Assessment (“SOR”) served on 10 June 2016. Mr Eke maintained in his statement that while part of the email might not attract litigation privilege, as it set out the reporting of the conversation, the remaining parts did attract litigation privilege and that privilege was not waived.

10. We note in passing that, as Ms Harrison submitted, the redacted email now provided in the bundle is not that served previously. Although the redactions are the same, the original one asserted that the redactions were “irrelevant material”.

11. The interested party objected to the redactions and sought an order from the First-tier Tribunal that an unredacted copy be served. Following submissions by the parties, the First-tier Tribunal ordered on 14 November 2017, that unredacted copies be provided to the Tribunal by 4pm on 17 November 2017 and that it would then disclose them to the interested party unless they agreed that the redactions were justified.

12. The applicant then applied to the First-tier Tribunal for that order to be set aside. In response, the FtT agreed to hear further oral submissions on 4 December 2017. The FtT then, on that date, withdrew the order of 14 November 2017, and ordered disclosure of the email, it being open to the applicant to withdraw reliance on it in the appeal.

13. On 19 December 2017, the applicant commenced these proceedings, seeking the quashing of the order of 4 December 2017, expedition, and a stay on the FtT’s order in the interim.

14. A limited stay until 22 December 2017 was ordered, and following submissions by the parties on that day, Upper Tribunal Judge Rintoul ordered a rolled-up hearing. The stay was not continued, the FtT having undertaken to maintain a stay on its order pending resolution of these proceedings. The Decision of the FtT

15. The FtT’s decision was given orally following submissions by Mr Grieves and Ms Patry, who appeared before the FtT as they did before us. The parties do not dispute the accuracy of the note of the decision drafted by the applicant’s counsel.

16. So far as is relevant, the FtT held: As far as litigation privilege is concerned, we observe that is no precedent for its application in this Tribunal. No authorities have been submitted and this has been confirmed today by counsel. We cannot definitively say why that may be but it may be because fundamental human rights obligations are at stake in this tribunal. Even if this were a situation where litigation privilege could apply, we are of the view that Mr Eke's statement is incomplete and incorrect in material respects. The statement contained inconsistent claims concerning the content of the email. On its face, the email stated "not relevant to this case" but elsewhere Mr Eke and counsel stated that it was the subject of litigation privilege. We find these two statements to be inconsistent. Mr Eke also stated that he realised that part of the email was not covered by litigation privilege and that it could be disclosed. He stated that it is not the case of litigation privilege being waived. However, counsel claimed that litigation privilege was being waived in respect of the unredacted part of the email. Again, we are not satisfied that both statements could be correct. For these reasons, even if litigation privilege applied in this tribunal, we would have found that Mr Eke's statement did not establish that it applied here. We do not accept that litigation privilege could override fundamental human rights considerations. Finally, we took the view that if we were to permit the email redactions to stand, the impression may be created or there may be a perception that the tribunal could have been misled on the evidence and we would wish to avoid our decision being tainted in that way We therefore order disclosure of the email. We are not satisfied that we have been given any reason for not viewing the email ourselves or for it not to be disclosed to the appellant's representatives ("the nuclear option" according to Ms Patry). If the respondent wishes to withdraw the email that is a matter for her.) The applicant’s challenge

17. The applicant’s case is that FtT erred in concluding that: (i) litigation privilege did not apply to proceedings before the First-tier Tribunal (ii) the witness statement relied upon to assert litigation privilege was not consistent (iii) even if litigation privilege applied, “it could not override a fundamental human right”. (iv) there might be a perception that it might be misled by the evidence.

18. The interested party submits as a preliminary issue that the Upper Tribunal should not entertain the application as there is a suitable alternative remedy available by way of an application for permission to appeal against the final decision, that being the remedy laid down by Parliament; and, that the grounds do not in any event merit the exceptional course of intervention by way of judicial review of an interlocutory decision of a Tribunal.

19. It is also argued that even if these hurdles are overcome, and permission is granted, the application should be dismissed as: (i) Litigation privilege does not apply in proceedings in the FtT as the proceedings are not adversarial proceedings; (ii) Even if it did, it could not apply on the facts of this case as the email was between FCO officials; (iii) Even if it did apply to the email, it cannot now be claimed as the applicant has waived litigation privilege through partial disclosure; (iv) The challenge to the assessment of the witness statement and the other challenges to the FtT’s summary reasons were not properly challengeable on “Wednesbury” grounds. Legislative Framework

20. Section 11 of the Tribunals, Courts and Enforcement Act 2007 provides, so far as is relevant: 11 Right to appeal to Upper Tribunal (1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision. (2) Any party to a case has a right of appeal, subject to subsection (8) … (5) For the purposes of subsection (1), an “excluded decision” is– … (f) any decision of the First-tier Tribunal that is of a description specified in an order made by the Lord Chancellor.

21. The Appeals (Excluded Decisions) Order 2009 provides, so far as it is relevant, that the following are excluded decisions for the purposes of (inter alia) section 11: (m) any procedural, ancillary or preliminary decision made in relation to an appeal against a decision under section 40A of the British Nationality Act 1981, section 82 of the Nationality, Immigration and Asylum Act 2002, or regulation 26 of the Immigration (European Economic Area) Regulations 2006.

22. The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 provide:

15. (3) No person may be compelled to give any evidence or produce any document that the person could not be compelled to give or produce on a trial of an action in a court of law in the part of the United Kingdom where the proceedings are to be determined. The Issue of a Suitable Remedy

23. As noted above, the interested party submits that the applicant’s challenge falls at the permission stage, on the basis that there is a suitable alternative remedy. It is submitted that judicial review proceedings are also premature, issues of disclosure being primarily a point for the court seized of the substantive appeal; and, that there are other options open to the applicant. And, further, it is submitted that if judicial review of interlocutory decisions is to be permitted, a very high threshold must be met, it being appropriate only in rare and exceptional cases.

24. Whether or not to entertain an application for judicial review is a matter that falls within the Upper Tribunal’s discretion, applying well-known principles that apply also in the High Court. We consider it uncontroversial to state that where there is an alternative remedy it would only be in the rarest of cases that the Upper Tribunal would consider exercising its jurisdiction to grant permission to bring judicial review proceedings.

25. The availability of an alternative remedy is not the only consideration as to whether jurisdiction should be exercised. As Ms Harrison submits, the statutory scheme, and the fact that this is an interference in the usual procedure are factors to be taken into account.

26. Whether a statutory appeal is a suitable remedy requires us to consider if litigation privilege applies and if so, a statutory appeal against the final decision of the FtT in the substantive appeal could be a remedy against an improper and unlawful order requiring disclosure.

27. We accept that, as Ms Harrison submits, Parliament’s policy, as set out in the Excluded Decisions Order, is to limit appealable decisions in immigration appeals to final decisions of the FtT. That is in contrast with the position in the civil courts where interlocutory decisions do result in appeals up to the higher courts as with the cases to which we refer below reported as Three Rivers DC v Governors of the Bank of England (No.5) [2003] EWCA 474 and Three Rivers DC v Governors of the Bank of England (No 6)[2004] UKHL 48, commonly referred to as the Three Rivers litigation.

28. In that context, what was held in R (Sivasubramaniam) v Wandsworth[2002] EWCA Civ 1738 at [47] is relevant:

47. There is indeed an abundance of authority, which supports Mr Sales' submission. This can be demonstrated by reference to that which he cited to us: Harley Development Inc v Comr of Inland Revenue[1996] 1 WLR 727, 736C per Lord Jauncey; R v Inland Revenue Comrs, ex p. Preston[1985] AC 835, 852D-F per Lord Scarman, and 862D and F per Lord Templeman; R v Secretary of State for the Home Department, ex p. Swati [1986] 1 WLR 477; R v Birmingham CC, ex p. Ferrero Ltd[1993] 1 All ER 530, 537c per Taylor LJ; Allen v W. Yorkshire Probation Service[2001] EWHC Admin

2. What these authorities show is that judicial review is customarily refused as an exercise of judicial discretion where an alternative remedy is available. Where Parliament has provided a statutory appeal procedure it will rarely be appropriate to grant permission for judicial review. The exceptional case may arise because the statutory procedure is less satisfactory than the procedure of judicial review. Usually, however, the alternative procedure is more convenient and judicial review is refused.

48. We believe that these general principles apply with particular force in the context of the applications before us. Under the 1999 Act, and the rules pursuant to it, a coherent statutory scheme has been set up governing appeals at all levels short of the House of Lords. One object of the scheme is to ensure that, where there is an arguable ground for challenging a decision of the lower court, an appeal will lie, but to prevent court resources being wasted by the pursuit of appeals which have no prospect of success. The other object of the scheme is to ensure that the level of Judge dealing with the application for permission to appeal, and the appeal if permission is given, is appropriate to the dispute. This is a sensible scheme which accords with the object of access to justice and the Woolf reforms. It has the merit of proportionality. To admit an applicant to by-pass the scheme by pursuing a claim for judicial review before a judge of the Administrative Court is to defeat the object of the exercise. We believe that this should not be permitted unless there are exceptional circumstances – and we find it hard to envisage what these could be. Hooper J. was right to dismiss Mr Sivasubramaniam's application in relation to District Judge Dimmick's award on the ground that he had an alternative remedy. He should have dismissed Mr Sivasubramaniam's application in relation to the Wandsworth County Court for the same reason rather than entering into consideration of the merits.

29. There is, however, a distinction to be drawn. There is within the Tribunals structure no scheme of the sort described above and equally there is a focus on the availability of an appropriate remedy.

30. There is support for Ms Harrison’s proposition from R (AM (Cameroon)) v Asylum and Immigration Tribunal[2007] EWCA Civ 131 at [104] – [105], relying on R (Wani) v SSHD[2005] EWHC 2815 (Admin), although it must be borne in mind that the procedure for appeals from the First-tier Tribunal is now different. While we accept the observations that cases where judicial review will lie in challenges to interlocutory decisions are rare, they are not expressly ruled out. These were characterised in AM (Cameroon) as being gross procedural unfairness. That is not, we consider, any different in substance from what was held by the Divisional Court in R (U & XC) v Upper Tribunal [2009] EWHC 3052 at [85]: I think it important to emphasise the limited consequences (if my Lord agrees) of my holding that SIAC is subject to the judicial review jurisdiction. A final determination of an appeal by SIAC is by SIACA s.7 subject to appeal to the Court of Appeal. It is elementary that judicial review is a discretionary remedy of last resort. Accordingly it will not be deployed to assault SIAC's appealable determinations. Not of course for want of jurisdiction: but because the court's discretion should not be so exercised. Nor will it go to interlocutory decisions on the way to such a determination, at least without some gross and florid error. As for bail, the court will not allow judicial review to be used as a surrogate means of appeal where statute has not provided for any appeal at all. In a sensitive area where the tribunal is called on to make fine judgments on issues touching national security, I would anticipate that attempts to condemn the refusal (or grant) of bail as violating the Wednesbury principle will be doomed to failure. A sharp-edged error of law will have to be shown.

31. These cases do, we consider, indicate that there is, as Ms Harrison argues, a high threshold to be overcome before the Upper Tribunal will entertain an application for judicial review in challenging a decision of the FtT. But the examples given of when the High Court would intervene must be seen in the context of R (U & XC) – challenges to a court of record. That is not the case here. We bear in mind that whether or not the Upper Tribunal should intervene arises from discretion; not law and it must be recalled that when R (U & XC) reached the Supreme Court as Cart v The Upper Tribunal[2011] UKSC 28, the second appeals test was identified as being appropriate; that is to say, a test which requires there to be some important point of principle or practice or some other compelling reason to hear the appeal

32. We do not accept either that Pham v SSHD[2015] UKSC 19 is relevant to this case. We do not consider that, as Ms Harrison submits, it is an indication that issues of disclosure should primarily be dealt with by the court hearing the substantive issue. The passage cited at [62] suggesting that is made in the context of an appeal in SIAC where that Court would be in possession of open and closed material which is not the situation here. It is not just simply an issue of disclosure; this case touches first on whether litigation privilege is engaged.

33. We part company from Ms Harrison in her submission that the applicant must overcome the high threshold in respect of each ground advanced. We do not consider that the case law supports that proposition.

34. Given that the primary consideration is whether the Upper Tribunal should entertain a challenge at all, we consider that once the very high threshold is met, we accept Ms Patry’s submission that, analogous with the second appeals test, it is not necessary for each of the grounds to reach that threshold. Further, and in any event, the grounds of challenge are simply ancillary to the core thrust which is that the order for disclosure was contrary to the applicant’s fundamental right.

35. We do, however, consider that it is necessary to examine the substance of the challenge before reaching a conclusion on this issue.

36. The second, related preliminary matter is whether the right of appeal against a final decision of the First-tier Tribunal would be a suitable alternative remedy as the interested party submits. That is not an issue we can, however, decide without first considering whether litigation privilege applies. If it does, then it would not be an adequate remedy, as (for reasons which we develop below) it could not put the applicant back in the position she was before the email in question was disclosed and ceased to be confidential.