England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/02/2016

THE HONOURABLE MR JUSTICE BLAKE:

Introduction

1. On 20 October 2014, the Tribunal Procedure (First-Tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2014/ 2604) (hereafter the Rules) came into force. They replaced the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/ 230) (the AIT Rules) that until then had continued in force despite the creation of an Immigration and Asylum Chamber in both the First-tier (FtT) and Upper Tribunal (UT) in February 2010. The AIT Rules in turn had been preceded by Immigration Appeal (Procedure) Rules or Asylum Appeal Rules in 1972, 1984, 1996, 2000 and 2003.
2. It was a feature of all the previous rules that although there were no formal provisions governing the admissibility of evidence, the Tribunal determining the appeal had to decide appeals on the basis of evidence made available to all parties: see for example rule 51 (7) of the AIT Rules that were in force from April 4 2005 to 19 October 2014 stating that (the Tribunal) 'must not take account of any evidence that has not been made available to all the parties'.
3. This rule was subject to a statutory exception in s.108 of Nationality, Immigration and Asylum Act 2002 that prohibited disclosure to an immigrant appellant of techniques used to discover forged identity documents.
4. The 2014 Rules adopted a new approach. Rule 13 (2) permitted the Tribunal to give a direction prohibiting the disclosure of a document or information to a person (including the appellant) if satisfied that such disclosure would be likely to cause that person or some other person serious harm and the Tribunal is satisfied having regard to the interests of justice that it is proportionate to give such a direction.
5. The Rules were made by the first defendant (the Committee) and allowed by the second defendant pursuant a rule making power afforded by s.22 Tribunal, Courts and Enforcement Act 2007.
6. The claimant, ILPA, is a professional body of immigration lawyers established in 1984. It challenges the legality of rule 13 and essentially contends that:

i) It is ultra vires as it is beyond the scope of the rule making power in that it interferes with common law principles of fairness without statutory authority.

ii) In the context of issues decided in immigration appeals, the repeal of rule 51 and the creation of a judicial discretion to decide a case on material unknown to the appellant is so unfair that no rational rule making body could have promulgated it.

7. Section 22 of the Tribunal, Courts and Enforcement Act 2007 provides:

(1) There are to be rules, to be called "Tribunal Procedure Rules", governing-

(a) the practice and procedure to be followed in the First-tier Tribunal , and

(b) the practice and procedure to be followed in the Upper Tribunal.

(2) Tribunal Procedure Rules are to be made by the Tribunal Procedure Committee.

(3) In Schedule 5-

Part 1 makes further provision about the content of Tribunal  Procedure Rules,

Part 2 makes provision about the membership of the  Tribunal Procedure Committee,

Part 3 makes provision about the making of Tribunal  Procedure Rules by the Committee, and

Part 4 confers power to amend legislation in connection with Tribunal Procedure Rules.

(4) Power to make Tribunal Procedure Rules is to be exercised with a view to securing-

(a) that, in proceedings before the First-tier Tribunal and Upper Tribunal , justice is done,

(b) that the tribunal  system is accessible and fair,

(c) that proceedings before the First-tier Tribunal  or Upper Tribunal are handled quickly and efficiently,

(d) that the rules are both simple and simply expressed, and

(e) that the rules where appropriate confer on members of the First-tier Tribunal , or Upper Tribunal , responsibility for ensuring that proceedings before the tribunal  are handled quickly and efficiently.

(5) In subsection (4)(b) "the tribunal  system" means the system for deciding matters within the jurisdiction of the First-tier Tribunal or the Upper Tribunal.

8. The defendants submit:-

i) The statute gives ample power to make rule 13.

ii) It is a rule reflected in the Tribunal Procedure (Upper Tribunal) Rules 2008 and in the rules made for the other Chambers of the First-tier Tribunal and consistency across chambers is a desirable objective.

iii) The rule is not a mandatory provision that requires a certain procedure to be adopted but is a power to be exercised by trained judges subject to the over-riding objective of fairness.

iv) The test for a challenge to the legality of a procedure rule is not whether the rule may give rise to incidental cases of unfairness, but whether they are inherently or systemically unfair because they lack the capacity to achieve fairness.

9. This judgment proceeds as follows:-

i) to analyse the terms of rule 13 and what it means;

ii) to review the learning on common law fairness and equivalent provisions in EU and ECHR law;

iii) to examine the authorities relevant to the power to make rules that may lead to derogations from recognised principles of fairness;

iv) to determine the test to apply in a challenge to the rules;

v) to determine the challenge in the light of the above.

Rule 13

10. Rule 13 is in the following terms:

'(1) The Tribunal may make an order prohibiting the disclosure or publication of—

(a) specified documents or information relating to the proceedings; or

(b) any matter likely to lead members of the public to identify any person whom the Tribunal considers should not be identified.

(2) The Tribunal may give a direction prohibiting the disclosure of a document or information to a person if—

(a) the Tribunal is satisfied that such disclosure would be likely to cause that person or some other person serious harm; and

(b) the Tribunal is satisfied, having regards to the interest of justice , that it is proportionate to give such a direction.

(3) If a party ("the first party") considers that the Tribunal should give a direction under paragraph (2) prohibiting the disclosure of a document or information to another party ("the second party"), the first party must—

(a) exclude the relevant document or information from any documents to be provided to the second party; and

(b) provide to the Tribunal the excluded document or information, and the reason for its exclusion, so that the Tribunal may decide whether the document or information should be disclosed to the second party or should be the subject of a direction under paragraph (2).

(4) The Tribunal must conduct proceedings as appropriate in order to give effect to a direction given under paragraph (2).

(5) If the Tribunal gives a direction under paragraph (2) which prevents disclosure to a party who has appointed a representative, the Tribunal may give a direction that the documents or information be disclosed to that representative if the Tribunal is satisfied that—

(a) disclosure to the representative would be in the interests of the party; and

(b) the representative will act in accordance with paragraph (6).

(6) Documents or information disclosed to a representative in accordance with a direction under paragraph (5) must not be disclosed either directly or indirectly to any other person without the Tribunal's consent.

(7) The Tribunal may, on the application of a party or on its own initiative, give a direction that certain documents or information must or may be disclosed to the Tribunal on the basis that the Tribunal will not disclose such documents or information to other persons, or specified other persons.

(8) A party making an application for a direction under paragraph (7) may withhold the relevant documents or information from other parties until the Tribunal has granted or refused the application.

(9) In a case involving matters relating to national security, the Tribunal must ensure that information is not disclosed contrary to the interests of national security.

(10) The Tribunal must conduct proceedings and record its decision and reasons appropriately so as not to undermine the effect of an order made under paragraph (1), a direction given under paragraph (2), (5) or (7) or the duty imposed by paragraph (9).'

11. Ms Weston for the claimant makes a number of observations as to the consequences of this Rule. In summary she contends:-

i) Sub-rules (2) (3) and (4) permit a closed material procedure (CMP) in which the Tribunal can take into account information that is not disclosed to a party and is not identified during the hearing or the Tribunal's decision. This is contrary to the basic principles of fairness.

ii) Sub-rule (5) does not cure the absence of fairness. An appellant will frequently not be represented at all given the restrictions on legal aid and the fact that many appeals will be conducted when the appellant is outside the country. It is unethical for a legal representative to act on the basis of information he or she cannot discuss with the client. The client cannot give informed consent to such a procedure as he or she will not know the importance of the material that is not to be disclosed.

iii) Sub-rules (7) and (8) creates a second form of CMP unrelated to risk of causing a person serious harm, and with no criteria for so doing;

iv) Sub-rule (9) appears to create a third class of CMP on national security grounds, thereby blurring the distinction between the jurisdiction of the Tribunal and the Special Immigration Appeals Commission (SIAC) with its special rules and procedural protections.

v) No issue is taken with sub-rule (1) that is a conventional power to grant anonymity in Chamber proceedings

12. Mr Sanders for the defendants disputes that any part of rule 13 creates a general CMP power. He draws a distinction between rule 13(2) and rule 13(7). Rules 27(4)(c) and rules 29(2) and (6) enable the Tribunal to exclude people (including the appellant and his/her advocate) from the hearing and permit it to restrict the information given in the decision letter. However, these rules only apply to rule 13(2) decisions. By inference, therefore, rule 13(7) is about the ability of the Tribunal to obtain documents on terms that it will not be disclosed to others but does not enable the Tribunal to use such documents in a decision without first providing it to an appellant and his or her representative. Rule 13(9) is merely a rule enforcing the principle that nothing must be disclosed that would be contrary to national security; it is not intended to permit the FtT IAC to decide cases concerning national security; there is consensus that such cases should be heard in SIAC.
13. I consider that the submissions of Mr Sanders on the scope of rule 13 are well founded. However, the broad language used in rule 13 (7) and (9) is potentially confusing given that the clarity provided by rule 51 of the AIT rules was withdrawn. If the rule making body merely intended to create a new exception to the principle articulated by rule 51(1), namely where a rule 13 (2) direction had been made, it would have been happier if the principle had been retained so that judges were fully aware that in other circumstances they could not decide a case on material that had not been made available to the appellant.
14. The essential issue in this challenge is therefore confined to rule 13 (2). Clearly, as is common grounds between both parties, this does envisage a CMP where the appellant personally is excluded from the hearing, does not know what evidence is to be given in the case against him and is not informed about the evidence and its significance in the notice of the determination.
15. The rule can only apply where the two requirements are met. The first requirement is where a person is likely to be caused serious harm by disclosure. 'Serious harm' is not defined in the Rules but I agree with Mr Sanders, that it must be limited to significant physical and mental suffering; harm to commercial or privacy interests, distress or anxiety is not enough. This would need to be established by credible information rather than mere assertion. 'Likely' involves establishing something higher than a mere risk or possibility of harm although is less than the application of the ordinary civil standard (see Cream Holdings v Bannerjee [2004] UKHL 4; [2005] 1 AC 253 per Lord Nicholls at [12] to [23] and particularly at [21] citing In re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563, 585). It will be an unusual case where the evidence meets this standard, and if it does, the judge must still consider the second requirement whether the making of the direction is consistent with the interests of justice and proportionate.
16. In this context the overriding objective of dealing with the case justly and fairly set out in rule 2 (2) of the Rules and the terms of s.22 (4) (a) and (b) of the 2007 Act would need to be in the forefront of the judge's mind. Even so, I agree with Ms Weston that for a judge to direct a CMP in an immigration appeal is a novel proposition that has the potential for conflict with common law standards of fairness.
17. Ms Weston points out that the issues decided in immigration cases, although determined on the civil standard, are in a number of respects close to issues in criminal trials. An appellant may be detained for substantial periods pending determination of the appeal and may face compulsory removal and separation from house, home, family, friends and employment by reason of a deportation or removal decision. Immigration appeals from 2014 onwards are now confined in the main to decisions to deport, refuse asylum or human rights claims and decisions on applications for residence under the provisions of EU law.
18. There is ample authority for the proposition that only the highest standards of fairness suffice in asylum appeals where there is a risk of harm on removal to an unsafe country: Saleem v SSHD [2000] EWCA Civ 186; [2001] WLR 443; SSHD v Thirukumar [1989] EWCA Civ 12 [1989] Imm AR . Although ECHR law distinguishes between civil courts that are determining rights and obligations and administrative tribunals making public law decisions for the purpose of the application of the Article 6 right to a fair trial, Sir Andrew Leggatt's report that led to the establishment of the two-tier tribunal system considered that any distinction between courts and tribunals when it came to the requirements of fairness was unsustainable (Tribunals for Users- One System One Service (2011) at 2.17). In any event ECHR law has developed exacting standards of procedural fairness where Article 3 claims of risk to inhuman or degrading treatment are concerned.
19. Cases of removal of EEA nationals and their families engage EU law and the fair trial rights of the Charter of Fundamental Rights apply, irrespective of whether ECHR law regards immigration decision making the determination of civil rights for the purpose of Article 6 ECHR.
20. Human rights appeals other than Article 3 cases, will concern the right to respect for private and family life (Article 8 ECHR) and freedom from arbitrary or prolonged detention (Article 5 ECHR) both of which require minimum standards of procedural fairness.
21. Ms Weston further submits that the application of the rules must be seen in the context of the procedures that now apply in the FtT IAC:

i) Outside the field of asylum appeals there may be no legal aid for an appellant to be legally represented. The increasing trend is for appeals to be determined after the appellant has been removed (see R ota Kiarie and others [2015] EWCA Civ 1020).

ii) An absent and unrepresented appellant will be enormously disadvantaged if he or she does not know the case to meet in advance of the hearing and cannot make responses to submissions advanced on the day by the Home Office Presenting Officer with respect to disclosure or any gist of information that emerges from a CMP application.

iii) The Home Office Presenting Officer is not usually a lawyer, and may not have the same training and professional obligations as a lawyer with the respect to the principles of fair trial and the over-riding duty to assist the tribunal when difficult issues arise.

iv) FtT IAC judges will have had no collegiate experience of deciding such issues as any form of CMP was prohibited by rule 51 (7) (save in respect of forgery techniques) until late 2014.

v) The FtT as a creature of statute cannot, by reference merely to broad powers of case management, create the statutory scheme of special advocates that applies in SIAC where the imperative requirements of protecting national security leads to significant derogations from the standards of fair trial and due process. The special advocate representing the interests of the appellant in such proceedings goes some way to provide a balance to such disadvantages.

vi) There is no Guidance from a Chamber President as to the operation of the rule, how to determine rule 13(2) applications and whether any information should be given to an advocate for the appellant and if so what. Ms Weston points to anecdotal evidence of informal non-disclosure applications being made to FtT judges at hearing centres that are not reflected in the subsequent decision, thus it is not known whether decisions are being taken on the basis of secret evidence and the criteria on which such applications are judged.

22. Mr Sanders, whilst acknowledging the potential for unfairness if the power is exercised informally and liberally, nevertheless submitted that the FtT is staffed by judges who are lawyers and long experienced in the art of achieving fairness. If the discretion is capable of being fairly exercised for a legitimate purpose it is lawful. Inquiries made of 81 Tribunal judges (with the consent of the Senior President of Tribunals) and the Home Office did not reveal that any direction had yet been made.
23. The Committee took account of information from the judiciary as to the circumstances when the new power might be used. This included a scenario, familiar with any judge of experience in immigration appeals, where an appellant relies on the existence of a marital relationship to support a family based claim to remain, whereas the Presenting Officer is in possession of documentary information coming from or purporting to come from the spouse in question (often the wife) contending that she is being forced to give untruthful evidence in support of her husband and fears reprisals if she does not. Until the abrogation of rule 51, judges who are made aware of the existence of such material would not and could not adduce it in evidence, but might examine the evidence tendered by the appellant in support of all the issues in the case with particular care.

Common law standards of fairness

24. In his decision in the case of Roberts v Parole Board [2005] UKHL 45; [2005] 2AC 738 Lord Bingham spelt out the principle of fairness inherent in the common law and the minimum requirement of a fair hearing that complies with Article 6 ECHR:

'16. The ordinary principle governing the conduct of judicial enquiries in this country is not, in my opinion, open to doubt. In Re K (Infants) [1963] Ch 381, 405-406, Upjohn LJ expressed it thus:

"It seems to be fundamental to any judicial inquiry that a person or other properly interested party must have the right to see all the information put before the judge, to comment on it, to challenge it and if needs be to combat it, and to try to establish by contrary evidence that it is wrong. It cannot be withheld from him in whole or in part. If it is so withheld and yet the judge takes such information into account in reaching his conclusion without disclosure to those parties who are properly and naturally vitally concerned, the proceedings cannot be described as judicial."

On appeal to the House in the same case ([1965] AC 201, Lord Devlin referred at p 237 to "the fundamental principle of justice that the judge should not look at material that the parties before him have not seen", and at p 238, referring to "the ordinary principles of a judicial inquiry", he continued:

"They include the rules that all justice shall be done openly and that it shall be done only after a fair hearing; and also the rule that is in point here, namely, that judgment shall be given only upon evidence that is made known to all parties. Some of these principles are so fundamental that they must be observed by everyone who is acting judicially, whether he is sitting in a court of law or not; and these are called the principles of natural justice. The rule in point here is undoubtedly one of those."

Lord Mustill, with the agreement of all other members of the House, spoke in similar vein in Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, 603-604, when he described it as

"a first principle of fairness that each party to a judicial process shall have an opportunity to answer by evidence and argument any adverse material which the tribunal may take into account when forming its opinion. This principle is lame if the party does not know the substance of what is said against him (or her), for what he does not know he cannot answer."

Later in the same opinion, at p 615, he said:

"It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party."

This principle has been upheld in such domestic cases as R v Parole Board, Ex p Wilson [1992] QB 740, 751, per Taylor LJ (disclosure of reports to the Board), whose reasoning was adopted by the House in Doody, above, p 562, and R v Secretary of State for the Home Department, Ex p Hickey (No 2) [1995] 1 WLR 734, 746 (disclosure of evidence elicited by the Secretary of State following a conviction), where Simon Brown LJ said:

"The guiding principle should always be that sufficient disclosure should be given to enable the petitioner properly to present his best case."

In dismissing a challenge to special measures directions for the protection of juvenile witnesses in R (D) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393, the House attached importance to the fact that the defendant was able to challenge and cross-examine the witnesses and that the evidence was produced at trial in the presence of the accused, who could see and hear it all: see para 49 of the opinion of Baroness Hale of Richmond, with which all members of the House agreed.

17.   The European Court has affirmed the importance of this principle in criminal cases governed by article 6(1) of the Convention, holding that as a general rule all evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument, giving him an adequate and proper opportunity to challenge and question witnesses against him: see, for example, Lamy v Belgium (1989) 11 EHRR 529, para 29; Kostovski v Netherlands (1989) 12 EHRR 434, para 41; Brandstetter v Austria (1991) 15 EHRR 378, paras 66-67; Edwards v United Kingdom (1992) 15 EHRR 417, para 36; Van Mechelen v Netherlands (1997) 25 EHRR 647, para 51; Lucà v Italy (2001) 36 EHRR 807, para 39; Garcia Alva v Germany (2001) 37 EHRR 335, para 39. In non-criminal article 5(4) cases the approach of the Court has been similar, generally requiring disclosure of adverse material and an adversarial procedure of a judicial character in which the person affected has the effective assistance of his lawyer and has the opportunity to call and question witnesses: see, for example, Sanchez-Reisse v Switzerland (1986) 9 EHRR 71, para 51; Bouamar v Belgium (1987) 11 EHRR 1, para 60; Weeks v United Kingdom (1987) 10 EHRR 293, para 66; Megyeri v Germany (1992) 15 EHRR 584, para 23; Hussain v United Kingdom (1996) 22 EHRR 1, paras 58-60; Al-Nashif v Bulgaria (2002) 36 EHRR 655, paras 90-98. It is quite true, as the Board insisted in argument, that the Court accepted that these rights were not absolute or incapable of valid qualification. But in Tinnelly and McElduff , above, para 72, the Court pointed out that any limitations must not "restrict or reduce the access [to the court] left to the individual in such a way or to such an extent that the very essence of the right is impaired"'.

25. Although, the Committee was divided as to when and how derogations from this principle were to be permitted, the principle itself was not disputed. In the case of Al Rawi v Security Service [2011] UKSC 34 (2012] 1 AC 531 Lord Dyson giving the leading judgment affirmed the principle. He said at [22]:

"For example, it is surely not in doubt that a court cannot conduct a trial inquisitorially rather than by means of an adversarial process (at any rate, not without the consent of the parties) or hold a hearing from which one of the parties is excluded. These (admittedly extreme) examples show that the court's power to regulate its own procedures is subject to certain limitations. The basic rule is that (subject to certain established and limited exceptions) the court cannot exercise its power to regulate its own procedures in such a way as will deny parties their fundamental common law right to participate in the proceedings in accordance with the common law principles of natural justice and open justice. To put the same point in a different way, the court must exercise the power to regulate its procedure in a way which respects these two important principles which are integral to the common law right to a fair trial."

26. There are recognised exceptions to the common law principle (1) where non-disclosure was necessary to protect the welfare of children; (2) where the litigation concerned intellectual property proceedings to protect commercial interest and disclosure would undermine the very object of the proceedings. The court was also aware that closed proceedings may be needed in order to determine claims to public interests immunity and such like in criminal or civil trials, but there the context is materially different and concerns what restrictions there may be on disclosure rather than whether such material can be admitted to proceedings and deployed against an appellant (see R v H [2004] UKHL 3 [2004] 2 AC 124). Otherwise clear statutory authority was needed to override the principle.
27. In the present application Ms Weston submits that the general words of s.22 do not amount to statutory authority to adopt a CMP in immigration appeals whereas Mr Sander submits that they do. Indeed he relies on the judgments in Al Rawi (for example per Lord Dyson at [55]) noting, without disapproval and distinguishing, the decision in Roberts v Parole Board as based on provisions of the Parole Board Rules. He therefore contends that Roberts is binding authority that broad words in the statutory enabling power suffice to produce a rule such as the one under consideration in that case and that the terms of s.22 TCEA 2007 are ample to justify such a procedure.

The power to use a CMP

CMP in the Tribunals

28. Mr Sanders submits that one rationale for the new rule to be applied in the FtT was the principle of consistency of practice across the various chambers of the Tribunal system. It is also a striking fact that a similar rule has been in force in the Upper Tribunal since 2008.
29. As a former President of the UT IAC, I disclosed to the parties at the outset of the hearing that as far as I was aware the use of the equivalent rule in the UT (rule 14) had never been considered save for some comments of my own in the case of Bah [2012] UKUT 196 (IAC) where the Tribunal said at [66]:

'At this point there is a significant distinction between proceedings in the Tribunal and before SIAC. The rules make no general provisions for secret hearings in the Upper Tribunal, and any material that the Secretary of State seeks to rely on before the Tribunal in support of the decision to deport ought to be disclosed to the appellant and his representatives. Although we have not heard full argument of the issue we do not consider that rule 14 (2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 applies to this class of case and  enables the Secretary of State to produce to the Tribunal and rely on material that is not to be provided to the appellant or his legal representatives. We recognise that in a variety of Tribunal appeals, the Tribunal may need to direct that information that is confidential or would cause harm if a party knew about it, the Tribunal may direct its non-disclosure if "having regards to the interests of justice, that it is proportionate to give such a direction" (see Jacobs 'Tribunal Practice and Procedure' 2009 at 493-496).  However, in our judgment it is contrary to the interests of justice for the Secretary of State to discharge the evidential burden to establish the factual basis for the exercise of the power to deport in the public interest, by submitting material to the tribunal that is not disclosed to the appellant or his advocate. There is no such power in the First-tier Tribunal where non-disclosure is restricted ….to the circumstances set out in section 108 of the 2002 Act (methods of detection of forged documents). In other cases the Secretary of State will have to use the SIAC procedure or any other deviation from the basic rules of fairness permitted by primary legislation'

30. These comments were made in the peculiar context where the UTIAC was hearing appeals from the FtT where rule 51(7) applied and where closed material had not been and could not have been used in proceedings below, although a more liberal regime applied in the UT itself.
31. Other Chambers of the Tribunal at First-tier or Upper Tribunal level have made use of rule 13 when available. In Browning v Information Commissioner [2014] EWCA Civ 1050 [2014] 1 WLR 3848 the Court of Appeal was concerned with a rule enabling the General Regulatory Chamber to sit in private in the course of the hearing of an appeal from the Information Commissioner relating to a request by a journalist for material to be disclosed under Freedom of Information Act 2000. At the hearing of the appeal the tribunal went into closed session where the advocates for the public authority that held the information and the Information Commissioner considered whether it should be disclosed. The journalist concerned accepted that he could be properly excluded from this procedure but contended that his advocate should be permitted to be present. The tribunal declined to admit the advocate and the issue for the Court of Appeal was whether the provisions of rules 5 and 35 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 permitting this course to be adopted were within the powers afforded by s.22 Tribunal, Courts and Enforcement Act 2007. Maurice Kay LJ concluded at [27] and [28] that they were and noted the potential use of the rule in mental health appeals. He further considered that the words of s.22 did not need to be read down in order to avoid conflict with the common law principle of fairness. The case law of the Tribunal cited in the decision showed that the power was exercised sparingly having regard to the unique features of the FOI system of appeals; where exclusion of a party does take place the FTT does its utmost to minimise the disadvantage to them by being as open as possible as to what has taken place [33] and [35].
32. This authority confirms that the words of s.22 are capable of authorising a rule such as rule 13 of the FTT rules. It is apparent that the nature of the appeal and the application of the principles of fairness operate in a significantly different manner in FOI and immigration appeals. In substance the issue in a FOI appeal of this kind is whether the information should be provided to the applicant. It would undermine the whole nature of the hearing if the person seeking access to the material could be present where the nature of the material was discussed in order to see whether it should be disclosed. In principle if a rule permits exclusion of the applicant that exclusion should also extend to that party's advocate.
33. At [31] in his judgment Maurice Kay LJ cites authority for the proposition that the law looks askance at a procedure where the advocate is in possession of material that cannot be disclosed to his client. I recognise the starting point is that such a procedure is exceptional and undesirable but I shall have something to say about whether it is ever possible or appropriate later in this judgment. In substance, therefore, the exclusionary power in an FOI hearing has features akin to where a judge hears a confidentiality application in private and without notice, at least at the initial hearing, one of the recognised common law derogations from the principle of open justice.
34. Further, in Browning there is the significant fact that the advocate for the Information Commissioneris present at the hearing and has an interest in ensuring that the principles of the FOI are adhered to and any basis for derogation is closely examined and tested. This is a very significant feature of such hearings that, in combination with the fullest disclosure being made of what has happened in closed session, is likely to mean that the procedure will be considered fair in any subsequent review.
35. Lord Justice Maurice Kay made reference to appeals and applications decided by the FtT under the Mental Health Acts and contemplated the provisions of the rules that enabled the Tribunal to withhold documents from a patient where the disclosure might be damaging to the patient's health. In the material provided to me Mr Sanders makes reference to two decisions of the Upper Tribunal reviewing when such material can be withheld: Dorset Healthcare NHS Foundation v MH [2009] UKUT 4 (AAC) and RM v St. Andrew's Healthcare [2010] 119 (AAC). There are examples of the care with which the Health Education and Social Entitlement Chamber (HESC) of the FtT and on appeal the UT AAC scrutinises the exercise of these powers under rules 5 and 14 of the HESC Rules 2008.
36. I did not understand Ms Weston to contend that such a rule is ultra vires or otherwise unfair, in a tribunal concerned with the triangulation of the best interest of the patient, the safety of the public or the propriety of continued detention and treatment of the mentally disordered. Her submission is that it is unfair to apply such a rule to immigration appeals.

Roberts v Parole Board

37. In the light of the importance of the case of Roberts to Mr Sanders' submissions on fairness, a careful examination of the decision and the principles emerging from it are of some importance. Once again the parties were made aware that this was a decision with which I had some personal acquaintance at the time of the House of Lords decision and the events that followed it.
38. It concerned a prisoner who was serving three life sentences for murder and was progressing through the prison and parole system. He had been placed in open conditions pending a Parole Board review as to whether he could be released on licence. In October 2001 he was removed from open conditions and was made aware that the Home Office (that then had responsibility for the prison system) alleged that he had acted in breach of trust when previously on open conditions. There was sensitive material in possession of the Home Office that it was unwilling to disclose to the prisoner or his representatives. A judicial review application was compromised when the parties agreed that the Attorney General should be asked to provide a specially appointed advocate to assist the Board and represent the prisoner's interests in deciding how the Parole Board hearing should procced. As it happens, I was the advocate appointed.
39. On 9 May 2003, there was a hearing of the Board's mandatory lifer panel chaired by Sir Richard Tucker, when submissions were made in the absence of the prisoner and his legal team about how the Board should proceed. The Board decided that there should be an open hearing and a closed hearing at which the sensitive material would be examined.
40. This decision was then challenged in a second judicial review application heard in the first instance by Mr Justice Maurice Kay (as he then was) and where with the assistance of the specially appointed advocate the court examined the sensitive material and concluded that i) the material should not be disclosed to the prisoner and ii) the Board was entitled to proceed as it did. The prisoner's appeal was dismissed by the Court of Appeal and the matter then proceeded to the House of Lords.
41. Lord Bingham at [1] identified the issue to be determined by the House as being whether the Board, a statutory creature performing the functions of a court with a view to determining the lawfulness of the continued detention of the prisoner for the purposes of Article 5(4) ECHR could, compatibly with the procedural standards of fairness imported by that Article, and within the powers granted to it under Criminal Justice Act 1991 (CJA) , lawfully use the closed procedure that it proposed to adopt.
42. Having identified the common law starting point, noted earlier in this judgment, Lord Bingham doubted that the specially appointed advocate procedure would be capable of providing sufficient fairness to the prisoner to meet the standards of Article 5(4). He said this at [18]:

'It is in my opinion plain that the procedure which the Board propose to adopt in resolving the appellant's parole review will infringe the principles discussed in the foregoing paragraphs. The Board will receive and be free to act on material adverse to the appellant which will not, even in an anonymised or summarised form, be made available to him or his legal representatives. Both he and his legal representatives will be excluded from the hearing when such evidence is given or adduced, denying him and them the opportunity to participate in the hearing, by questioning any witness or challenging any evidence called or adduced to vouch the sensitive material, or by giving or calling evidence to contradict that material, or by addressing argument. The appellant and his legal representatives are free to instruct the specially appointed advocate (whose integrity and skill are not in question) so long as none of them knows anything of the case made against the appellant on the basis of the sensitive material, but the specially appointed advocate is forbidden to communicate with the appellant or his legal representatives once he knows the nature of the case against the appellant based on the sensitive material. It is only at that stage that meaningful instructions can be given, unless the appellant has successfully predicted the nature of the case in advance, in which case he may well have identified the source and undermined the need for secrecy. The Parole Board assert that the specially appointed advocate may call witnesses, and in the absence of any warrant or authority to adopt the specially appointed advocate procedure that may be so. This was not, however, the understanding of the House of Commons Constitutional Affairs Committee ("The operation of the Special Immigration Appeals Commission (SIAC) and the use of Special Advocates", Seventh Report of Session 2004-05, vol 1, HC 323-1, 3 April 2005, para 52(iii)). But even if a specially appointed advocate is free to call witnesses, it is hard to see how he can know who to call or what to ask if he cannot take instructions from the appellant or divulge any of the sensitive material to the witness. In M v Secretary of State for the Home Department [2004] EWCA Civ 324, [2004] 2 All ER 863, the Court of Appeal acknowledged in para 13 that a person appealing to SIAC, in much the same position as the appellant would be under the proposed procedure, was "undoubtedly under a grave disadvantage" and, in para 16, that "To be detained without being charged or tried or even knowing the evidence against you is a grave intrusion on an individual's rights". In its decision letter challenged in these proceedings the Board realistically accepted that as compared with the appellant's solicitor a specially appointed advocate would be at a "serious disadvantage" and that adoption of the special advocate procedure would result in prejudice to the appellant. I regard these observations as amply justified. In the vivid language used by Lord Hewart CJ in a very different context in Coles v Odhams Press Ltd [1936] 1 KB 416, 426, the specially-appointed advocate would inevitably be "taking blind shots at a hidden target".

43. He nevertheless recognised that it could not be said in advance that the outcome was unfair, as the next Board, who would actually hear the evidence, might reject it as unreliable or devise a means of ensuring that a sufficient gist of it was provided to the prisoner [19].
44. Lord Bingham then considered whether the Board had the power in domestic law to adopt the scheme that it did. He noted that s.32(4) of the CJA referred to the Board considering all the evidence before it and s.32 (6) enabled the Secretary of State to give the Board directions about matters to be taken into account when discharging its functions, including the need to protect the public from serious harm from offenders.
45. Section 32 (4) gave the Secretary of State power to make rules with respect to proceedings before the Board and rules had been made in 1992, 1997 and 2004. Rule 5(1) required the Board to serve on the prisoner the material to be used in the hearing but was subject to an exemption in the 1997 rules:

i) information could be withheld by the Secretary of State from the prisoner on the ground that its disclosures would adversely affect the health of the prisoner or others; but

ii) where such a document is withheld it shall be served on the prisoner's representative if a barrister or solicitor or registered medical practitioner or other person whom the panel directs is suitable to receive it 'provided that no information disclosed in accordance with this paragraph shall be disclosed either directly or indirectly to the prisoner or other person without the authority of the chairman of the panel'; and

iii) there was a power in the chair of the panel to exclude the prisoner or any other person from a part of the hearing where excluded material is being considered.

46. By the time of the 2004 Rules, that would apply to Mr Roberts hearing, the Rules had been amended so that the duty to serve the material that was withheld from the prisoner on his or her advocate was itself made subject to a discretion in the chairman of the Board not to do so. The rules, however, made no provision for the appointment of a special advocate and the CMP that the Board proposed to adopt.
47. Lord Bingham concluded that there was no express power in s.32 CJA to adopt such a procedure and that the terms of the statute could not be read to grant an implied power that breached the common law principle of natural justice. Lord Steyn agreed.
48. Lord Woolf disagreed. He referred to Lord Bingham's speech in R v H [2004] 2 AC 134 and the observation that exceptionally, in a PII application conducted by a judge at the Crown Court, it was possible for the judge to invite the appointment of a specially appointed advocate (SAA) to assist the court. If such a power could be exercised without express statutory authority for that purpose, then Lord Woolf inferred that a similar power was available to the Board under its general duty under s.28 CJA to conduct a fair hearing, whether or not there were any specific rules on the issue [56] and [65]. Lord Woolf pointed out that rule 6 (3) of the rules gave the Board the power to exclude the advocate and the prisoner and by implication authorised the board to direct balancing measures to achieve fairness [75].
49. The power to appoint an SAA did not affect the duty on the Board to act fairly [60] and [67]. Whilst there was an irreducible minimum of fairness, it was difficult to determine in advance of the hearing that the exclusion of the prisoner and his advocate from the closed hearing would be unfair when an SAA had been appointed as much would depend on what the SAA could achieve, whether a gist of the evidence could be provided and how long the prisoner would be excluded from giving evidence for [68] and [75].
50. Lord Woolf also noted at [61] that the Guide to Drafting Tribunal Rules published by the Council on Tribunals in 2003 makes no mention of SAAs but proposes a rule 22 that would permit non-disclosure of information. This model rule seems to be some ancestor of rule 13 under consideration in the present case.
51. Lord Rodger at [106] pertinently observes that the advocate for Mr Roberts did not contend that rule 6(4) of the Parole Board was unlawful and ultra vires as a matter of domestic law. The argument therefore was whether there was authority to use an SAA procedure despite the absence of express statutory power but given the existence of rule 6 (4). He agreed with Lord Woolf that the appeal should be dismissed.
52. Lord Carswell noted that the debate before the House had been described as devising a procedure that reflected the triangulation of interests referred to in s.32 CJA: the duty of the Board to protect the public in considering whether a prisoner could be released; the interest of the prisoner in having a fair hearing; the interest of a third party who may have material information to be provided but might be in fear of reprisal if their identity was known.
53. He acknowledged the limited efficacy of the SAA procedure to provide a fair hearing, noting in particular the evidence submitted to the House of Commons Constitutional Affairs Committee by special advocates appointed under the Special Immigration Appeal Commission procedure. However, he concluded that the other interests prevailed over those of the prisoner in the particular circumstances of the Board's functions. He also dismissed the appeal.

Conclusions on the impact of Roberts in the present claim

54. The above analysis makes the reasoning in Roberts somewhat difficult to apply to the present context. First, it is not a decision that a procedure in Parole Board cases when evidence is excluded from provision to a prisoner and his/her advocate but there was the assistance of a specially appointed advocate is fair. Any such assessment would depend on a subsequent evaluation as to what actually happened. Second, it is not actually a decision that rule 6(3) authorised the exclusion of the prisoner and his advocate was lawful and intra vires the statutory enabling power because, as Lord Roger pointed out, this was not a challenge that was advanced by Mr Roberts who would have needed to challenge a decision of the Secretary of State rather than the Parole Board. Whilst it might be inferred that Lord Woolf and Lord Carswell implicitly concluded that such a power was available, they reached no decision binding on subsequent courts to that effect. A case decided on a concession from counsel is not an authority that binds a later court if the concession is withdrawn (see R v SSHD ex p Ku and others [1995] 2 WLR 589 at 597 E per Hobhouse LJ CA). In any event, the matter would need to be determined in the light of Al Rawi.
55. Third, there must be some doubt about Lord Woolf's view that the general case management powers afforded by s.28 CJA 1991 was sufficient both to enable the evidence to be withheld from the applicant and to enable the Board to exercise its discretion to ask the Attorney-General to appoint an SAA, in the light of subsequent authority of Al Rawi that the common law courts had no such power and an unambiguous intervention from Parliament was required. A crucial plank in Lord Woolf's reasoning was the case of R v H, which was indeed about the existence of a common law power of case management, but in a PII disclosure hearing which is restricted to the context of disclosure and not use of sensitive material; as Lord Dyson observed in Al Rawi at [54] that context is very different from whether you can have a hearing where the substantive rights of the prisoner/claimant/applicant/appellant are determined on the basis of material that he does not see and does not have an opportunity to challenge.
56. Fourth, there is force in Ms. Weston's submission that the context of a Parole Board hearing, where the issue is an assessment of whether there is continued dangerousness of a convicted prisoner and where the statutory context is a triangulation of interests, is very different from an immigration appeal. Such appeals concern whether the appellant has a right to enter or remain in the UK. They are not the exercise of a protective jurisdiction such as child welfare, mental health and lifer assessment hearings might be said to be.
57. The penultimate word on Roberts belongs to Lord Bingham, but in an extra judicial capacity. In his exemplary book The Rule of Law (Allen Lane 2010) he describes the Roberts decision in the House of Lords and at p106 briefly informs the reader what happened next. There was a hearing at which the Board heard the secret evidence and in reliance on it made some damaging findings of fact against Mr Roberts. Before any subsequent challenge to this decision could progress, the sensitive material was sent by someone to the legal representatives of Mr Roberts. This led to the first Board hearing being set aside and a fresh hearing was conducted with a different constitution. On this occasion Mr Roberts was able to directly challenge the reliability of some the closed material and call witnesses of his own to challenge it. Lord Bingham writes:

"For the first time his own counsel was able, effectively, to cross examine the witnesses against him. The board again reached conclusions which were in many ways highly adverse to Roberts, but they rejected the most damaging allegations which had been found to be proved at the first hearing. This experience, it may be thought, highlights the danger of relying on a special advocate to achieve justice when the crucial information is withheld from the accused individual".

58. With that observation I whole-heartedly agree. Whatever the experience or competence of the SAA, if the terms of appointment are based on the proposition that nothing said or done should lead the prisoner to learn, directly or indirectly, the identity of any source of information against him, this will normally prevent any or any meaningful gist of the data, prevent inquiries being made as to the existence of material that might undermine the source in cross examination, and equally prevent the calling of rebuttal witnesses to deal with disputed allegations. It also means that the reasons for the non-disclosure are likely to endure indefinitely. Some of these general points were made in the Special Advocates Memo to the House of Commons to which Lord Carswell referred; the views of the Parliamentary Joint Committee on Human Rights as to the fairness of the special advocate procedure were noted by Lord Dyson in Al Rawi at [36].
59. In my view the Roberts case was a striking illustration of the limitations of the procedure to achieve a minimum standard of fairness. Many of the potential ameliorating factors that Lord Woolf identified that might result in the minimum standards of fairness being achieved, in the end did not and could not do so. If the first Board hearing had been the dispositive one, then in the light of the speeches in Roberts there is a very real prospect that a subsequent court in the United Kingdom or Strasbourg would have concluded that the procedure employed did not meet the requisite standard of fairness required by the common law or Article 5(4). In turn, any finding that the procedure had resulted in an unfair hearing, may well have had relevance for any reconsideration of the vires argument; there was consensus that a general power of case management did not permit a procedure to be adopted that fell short of common law fairness.
60. For a combination of these reasons, while I recognise much of the force of Mr Sanders's submissions, I am unable to accept his contention that the case is essentially dispositive of the present challenge.

The test for a generic challenge to the rules

61. The defendants contends:

i) This is a generic challenge to the rules, it is academic and premature and a specific challenge to an individual decision said to be unfair is required;

ii) Alternatively, given that the rules give a judicial discretion rather than mandate a specific procedure, the claimant must meet a high test that the unfairness is inherent in the system rather than the possibility of aberrant decisions in individual cases.

62. The claimant submits:-

i) If the rules purport to grant a power to the judge to proceed in a way that is irremediably unfair they are vulnerable to challenge on vires grounds in the absence of clear statutory authority that this is the result that Parliament intended;

ii) The risk of unfair decisions being made in the FtT (IAC) in pursuance of the new rules is sufficiently grave to justify appropriate relief from this court.

63. For reasons that I will amplify in the next section of this judgment, I consider that the risk of a CMP being used in an immigration appeal pursuant to rule 13 (2) is sufficiently grave to justify the bringing of these proceedings. They are not academic in the sense of having no practical value and in the event that the claimant's submissions found favour, the grant of relief, whether declaratory or by way of a quashing order, would not be refused on the grounds that it would make no difference (see amendment to Senior Courts Act 1981 by Criminal Justice and Courts Act 2014 s.84).
64. However, I accept the defendants' submission that unfairness has to be inherent in the disputed rule rather than give rise to a mere possibility that unfairness will result from its use.
65. In the case of FP (Iran) v SSHD [2007] EWCA Civ 13 the Court of Appeal was concerned with a procedure rule that mandated the Tribunal to proceed in the absence of an asylum appellant on the basis of a deemed service and receipt of a notice for a hearing, whatever the reason for the non-attendance. Such reasons might have included failure of postal service, a recent change of address required by NASS support given to the appellant known to the Home Office but not communicated to the Tribunal, or administrative failure by the appellant's legal representative. Having examined and rejected the possibility that the rule could be interpreted to impose a duty of reasonable inquiry that might have enabled legitimate reasons for non-attendance to come to the Tribunal's attention and then form the basis of an exercise of discretion to adjourn, the court declared the rule to be unlawful. Lord Justice Sedley said at [34}

'The primary duty of the court is to read the Rules in a way which respects the empowering provisions and gives effect to the overriding objective. If, but only if, this still results in systemic unfairness, we will have to decide whether such a result is either required or clearly authorised by the primary legislation and, if it is not, what follows.'

He concluded at [48]

'The Rules as at present framed are productive of irremediable procedural unfairness.'

Lady Justice Arden at concurring said at [58-9]

'Section 106(1A) requires the Lord Chancellor to seek to make rules which balance the requirements for fairness, speed and efficiency. In this field, speed and efficiency are unquestionably important, but there must be a limit to the degree to which fairness can be sacrificed in order to achieve speed and efficiency. It must still be possible to say that a rule which has been designed to achieve speed and efficiency is fair in its operation. Otherwise, the balance required by section 106 (1A) is not achieved. The requirements of fairness must depend on the context. When the issue of fairness arose in Secretary of State for the Home Department v Thirukumar [1989] Imm AR 402, at 414, Bingham LJ, as he then was, held that asylum applications are of such moment that only the highest standards of fairness will suffice, and Sir John Donaldson and Mann LJ agreed with his judgment on that issue.

In addition, unless a minimum level of fairness is achieved, the principle of the rule of law will be infringed. The rule of law is a fundamental constitutional principle in the United Kingdom, and section 1 of the Constitutional Reform Act 2005, which came into force on the day before the AIT rules were made, expressly provides that nothing in the recent reform of the office of Lord Chancellor effected by that Act affects the principle of the rule of law:

"1. This Act does not adversely affect-

(a) the existing constitutional principle of the rule of law, or

(b) the Lord Chancellor's existing constitutional role in relation to that principle."'

66. In Lord Chancellor v Detention Action [2015] EWCA Civ 840, the Court of Appeal was considering an appeal from the High Court declaring that the way the detained fast track rules operated meant that that there were unlawful. It is pertinent to note that although the DFT rules provided for a very tight timetable for submission of evidence, decision making and appeal, there was some power in the FtT judge to grant an adjournment. The Master of the Rolls said as follows:

25. 'It is common ground that the requirements of fairness and justice include that the appeal process in the DFT provides a fair opportunity for appellants to present their cases properly. The claimant says that the time limits are so tight that many asylum seekers are denied the opportunity to present their appeals effectively and the various safeguards on which the SSHD and the Lord Chancellor rely are insufficient to secure justice by means of a fair appeal process. …

….

26. I would accept Mr Eadie's summary of the general principles that can be derived from these authorities: (i) in considering whether a system is fair, one must look at the full run of cases that go through the system; (ii) a successful challenge to a system on grounds of unfairness must show more than the possibility of aberrant decisions and unfairness in individual cases; (iii) a system will only be unlawful on grounds of unfairness if the unfairness is inherent in the system itself; (iv) the threshold of showing unfairness is a high one; (v) the core question is whether the system has the capacity to react appropriately to ensure fairness (in particular where the challenge is directed to the tightness of time limits, whether there is sufficient flexibility in the system to avoid unfairness); and (vi) whether the irreducible minimum of fairness is respected by the system and therefore lawful is ultimately a matter for the courts. I would enter a note of caution in relation to (iv). I accept that in most contexts the threshold of showing inherent unfairness is a high one. But this should not be taken to dilute the importance of the principle that only the highest standards of fairness will suffice in the context of asylum appeals.'

In the next part of the judgment the Master of Rolls responded to a submission that respect should be afforded to the expertise of the Committee in promoting the rule in question.

29. I agree with the judge that the court should have regard to and respect the views of the TPC as to the appropriate procedural rules. But this should not be taken too far. The material that we have been shown indicates that during the consultation process the TPC itself and most of the consultees expressed great concern about the potential unfairness of the proposed FTR. It should also be noted that the TPC decided to support the proposed rules after correspondence from the then Lord Chancellor in which he raised the possibility of his overruling the TPC's initial view and supporting the position of the SSHD. For this reason alone, the court should exercise caution about giving too much weight to the judgment of the TPC. In any event, the question is whether the FTR satisfy the requirements of justice and fairness stated in section 22(4) of the 2007 Act. The answer to this question does not call for expertise which the court does not possess. The court is well equipped to decide whether an appeal process is fair and just. I accept that the concepts of fairness and justice are not susceptible to hard-edged definition. That is why a margin of discretion should be accorded to the TPC, but it should be modest.

30. Mr Eadie drew our attention to R v SSHD ex p Saleem [2001] 1 WLR 443 and FP (Iran) as being examples of the kind of case where the court does not allow a margin of discretion to a rule-making body. In Saleem, the issue was whether rule 42(1)(a) of the Asylum Appeals (Procedure) Rules 1996 on deemed service was ultra vires the enabling Act. It was held that it was ultra vires on the grounds that the rule involved a complete denial of access to the Immigration Appeal Tribunal, a fundamental right which could only be abrogated by an Act of Parliament either expressly or by necessary implication. FP (Iran) was an analogous case. These were striking and extreme cases. I do not consider that they shed light on the extent of the margin of discretion that should be allowed in a case such as the present. Ultimately, the question that arises in this case is whether there is systemic or structural unfairness inherent in the FTR such as to render them ultra vires section 22(4) of the 2007 Act. That is a question of law for the court to determine. It turns on whether the safeguards on which the SSHD and the Lord Chancellor rely render the system fair and just'.

67. In my judgment there is no difference between FP (Iran) and "and Detention Action as to the test to be applied in challenges to procedure rules. It is not sufficient that the rules may operate unfairly, the issue is whether the system as a whole means unfairness is systemic or inherent in the scheme proposed, such that irreducible minimum standards of fairness are not met. The context of the appeal in question and the judgment of the TPC are relevant factors in the assessment, but if the unfairness is apparent only a modest margin of discretion should be afforded to the Committee.

Conclusions

68. With all the above in mind, I now reach my conclusions on whether rule 13 is systemically or inherently unfair and fails to accord the irreducible minimum standard of fairness.
69. In my judgment the only potential basis for such a conclusion is the CMP permitted by rule 13 (2) in conjunction with the rules enabling the appellant and his/her representative to be excluded from relevant parts of the proceedings.
70. The claimant's submissions face a number of difficulties. First, the rules do not mandate such a course, even if the judge is satisfied that disclosure would be likely to cause a person serious harm (physical or mental). The judge must act judicially, in accordance with the overriding objective to achieve fairness and the common law principles discussed above. Such a direction can only be given if the judge considers it to be proportionate. The position is significantly different from FP (Iran). There is no evidence that such orders have been made in either the FtT or the UT IAC in immigration appeals. For reasons explored in greater detail below, I consider it improbable that they would be made by a judge properly directing himself as to the requirements of fairness.
71. Second, there is direct authority binding on this court that s.22 TCEA 2007 enabled rule 13 to be made: see Browning. I recognise the claimant's observations about the distinction in context and that the appellant made only a limited challenge to the power to make the rules, but in my judgement the decision does mean that at this level of the judicial hierarchy at least, Ms Weston's submission that a general case management power is insufficient to create such a rule is not open to me to determine in her favour.
72. Third, her submission must therefore be confined to the use that is made of the power by judges in the FtT IAC and she needs to show that unfairness is inherent or intrinsic rather than a matter of aberrant exercise of discretion.
73. The nearest evidence there is in the consideration before the TPC of when some use might be made of rule 13 were three examples mentioned by Judge Deans, a highly experienced resident judge of the FtT and a member of the TPC Immigration and Asylum Sub-Committee. He considered that the rule might be used:

i) Where someone may be at risk of harm because of their sexual orientation;

ii) Where the mental health of the appellant may be adversely affected by disclosure of information

iii) Where there has been some denunciation of the appellant by a relative who is in fear of reprisals.

74. I cannot see how either i) or ii) could lead to a CMP as opposed to proportionate measures for anonymity, exclusion of the public from a hearing, and redaction of documents. In asylum and protection claims it is the practice of the FtT IAC to anonymise appellants unless it is judicially decided there is no good reason for doing so. Relevant protection can be afforded to any witnesses to be called in an appeal. The judgments of FtT IAC judges are not made available publicly (contrast those of the UT IAC) and the FtT can give directions that any determination be not made public by any party to the appeal.
75. In a case where an appellant is seriously mentally ill, it may be that medical or other data could be withheld to avoid causing significant harm. A judge considering such exclusion would be bound to give effect to the principle of the patient's dignity and autonomy as well as the guidance to be derived from the case law of the HESC Chamber dealing with Mental Health issues. A submission from a Home Office Presenting Office unsupported by compelling medical data that an appellant should not know about a report into his her condition because this was considered to be 'in their best interests' would be bound to receive short shrift. The most distressing information for such appellants is the news that they are to be refused admission and/or expelled from the UK, but that is the reason why there is an appeal in the first place and cannot be kept from the appellant.
76. In the rare event that a piece of information might cause serious harm if disclosed to an appellant, the rules then require consideration whether it could be provided to a legal representative on terms that it be not disclosed to the client without leave of the court.
77. Ms Weston points out that the professional starting point is that the lawyer should not withhold information from the client and should be free to take the client's instructions on any information that forms part of the case against him. She might for good measure refer to Lord Justice Maurice Kay's observations at [31] in Browning above as to the distaste for a lawyer being party to something that the client is not. However, this possibility had long formed part of the Parole Board Rules and the HESC rules and to my knowledge has been adopted on occasions in the High Court, as it once was in the Crown Court, if the client has been willing to give his/her consent to such a procedure, or if the client is not capable of giving instructions, if the advocate instructed considers such a course may be in the client's interest. It is not prohibited by the professional conduct rules of either branch of the legal profession, although clearly not a matter to be lightly agreed on.
78. The reason why such a course is likely to be of benefit to the client, is that his/her advocate can decide whether the information has relevance or importance to the case that they are presenting, and if so can make informed submissions to the tribunal judge why, having had sight of it, disclosure is necessary to achieve a fair hearing. Making a submission about relevance when the advocate does not know what the information is, is indeed a case of blind shots at a hidden target. Equally, the experience of special advocates is that the appellant's own lawyer will be best able to form a judgment as to the importance of data to their own case, the details of which they will be familiar. A judge or specially appointed advocate who may not be. Thus, if disclosure of a medical or other fact would be likely to cause serious harm, its disclosure to the advocate is likely to mean that the judge will receive informed submissions as to whether it needs to be withheld in whole or in part and if so how it impacts on the issue in the appeal.
79. I turn to the hard case of a denunciatory letter by a relative who claims to be in fear of violent reprisals if s/he does not give evidence or evidence in support of the appeal. This is not a new problem and judges have been managing to do justice within the terms of rule 51(7) and its predecessors for some 44 years when immigration appeals have been operating until the coming into force of the present rules.
80. When the problem of witness intimidation arose in criminal trials, the criminal courts devised systems of anonymity and the use of hearsay evidence until the decision of R v Davis [2008] 36 UKHL [2008] 1 AC 1128 explained why derogation from common law principles required primary legislation. There is now a statutory scheme and judicially developed criteria for the admissibility of such evidence. This has not been a problem in immigration appeals that are hearings conducted on the civil standard where documentary and other hearsay evidence is admissible and the weight to be attached to it is a matter for that Tribunal's evaluation (see the decision in Bah [2012] UKUT 196 (IAC) (cited above) and Farquharson [2013] UKUT 146).
81. In a removal appeal, evidence of witness intimidation disclosed to the Home Office may result in an appellant being taken into custody or having strict conditions imposed on bail. In any case it would be evidence of criminal conduct to be investigated by the police if established.
82. The above does not remove the problem of the reluctant witness who feels obliged to come to the Tribunal to give false evidence and does not want the person who is the source of the threat to be made aware of this by way of police investigation, suitably redacted hearsay evidence or otherwise. In substance, the problem is no different in immigration appeals or criminal courts and in my view, for reasons well illustrated by Lord Bingham's observations in Roberts and elsewhere, a secret hearing where the appellant does not know the case s/he is facing and is unable to test it is not the answer. Such informants may have reasons of their own for making the statements they do and the exploration of their reliability can only ever be satisfactorily done if the opposing party participates in the process.
83. Even if, in the Parole Board context, the need for the tribunal determining the release on licence of a serious criminal mandates that all data relevant to risk is before them, an immigration appeal does not involve the same triangulation of interests. The judge's function is to decide whether the appellant has made out his case. Of course, any witness or person who does not want to be a witness, can be the subject of threats and reprisals and if they are from abroad such reprisals may be to family members overseas, but in my view this would not be sufficient basis for a judge to authorise a secret trial in clear breach of the most basic principles of a fair hearing. It is not possible to protect vulnerable witnesses in extradition proceedings in the Magistrates Court: see R (B and others) v Westminster Magistrates Court [2014] UKSC 59; [2015] AC 1195.
84. In short, I cannot consider that rule 13(2) gives rise to a systemic or inherent lack of fairness since I cannot envisage it will be used to make a closed substantive decision in the manner contended for by the claimant. An occasion of a rule 13 direction being made in the absence of an appellant and advocate cited in the claimant's bundle is obscure as to what kind of direction was made. In any event, if I am wrong as a matter of general prediction, then it is, at least, likely to be such a rare and unusual case, where the competing considerations would have to be examined on their individual facts. The possibility of error in the exercise of judicial discretion could not, in such circumstances, be said to meet the threshold set by the principles set out by the Master of the Rolls in Detention Action.
85. I recognise that the very existence of the power is troubling and the repeal of rule 51 (7) equally so. It may well be that this is an issue that the Chamber President or the Senior President of Tribunals will want to consider issuing guidance on. It is not the function of this court to do so, in the course of adjudicating on this challenge. I would anticipate, however, that if the power were ever to be used, there would need to be a clear notification to the appellant that it had been and a full account of what was done and why would need to be recorded somewhere in the determination so it could be reviewed by the Upper Tribunal, this court or the Court of Appeal.
86. I am satisfied that there is no risk that the new rule confuses the procedure in SIAC with an ordinary immigration appeal with some sensitive evidence. It does appear from the majority decision in Roberts, however, that if a procedure rule lawfully permits a CMP in circumstances where no other measure will do, the general case management powers of the judge would entitle him/her to invite the Attorney General to appoint a specially appointed advocate to make submissions, at least about PII and the potential relevance of sensitive material, assuming that the appellant's own advocate is either unwilling or unable to perform that role. The UT has indeed adopted that process in a disclosure hearing in the case of CM (Zimbabwe) CG [2013] UKUT 59 IAC, at [31]
87. Although this court is as well placed as the TPC to determine what the requirements of fairness are when they arise in an immigration appeal, it is a relevant consideration that the Committee aims for consistency in rule making across the different Chambers of the FtT and the UT. Similar rules have been in force in other Chambers for some years without any complaint either being made or upheld that they were beyond the power of the Committee to make. The issue is how they will be used by judges in the FtT IAC where the nature of the appeal is different.
88. For all these reasons the claimant's application for relief declaring that rule 13 is unlawful when applied to the FtT IAC is refused.