CA-2024-001383-B - [2025] EWCA Civ 1065

On 20 March 2025, a constitution of this court comprising Lord Justice Arnold, Lord Justice Phillips and myself heard an appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber) (“the UT”) upholding the decision of the Secretary of State for the Home Department (“SSHD”) to revoke the appellant’s status as a refugee under paragraph 339AB of the Immigration Rules. The UT allowed the SSHD’s appeal against the First-tier Tribunal’s decision that, although the SSHD was justified in making the revocation order, the appellant was entitled to humanitarian protection on a basis which she had not claimed (and, indeed, continued to positively disavow). On 28 March 2025, we handed down our reserved judgments dismissing that appeal: [2025] EWCA Civ 257.

The appellant was anonymised in the judgments and referred to, as she was in both the lower tribunals, by the initials “SA”. As I explained at [14]:

“The appellant is a protected party who is represented in these proceedings by a solicitor who was appointed by the Court of Protection as her Deputy on 8 June 2018. She has suffered from serious mental health issues for many years, and in consequence she lacks the capacity to litigate. For this and other reasons there are anonymity orders in place. I shall refer to her, as she was referred to in the tribunals below, as “SA”.”

On 24 March 2025, Associated Newspapers Ltd (“ANL”), the publishers of the Daily Mail newspaper, issued an application to discharge all the anonymity orders made in these proceedings (“the revocation appeal proceedings”), namely:

I should also mention a fourth order which was made by the then President of the FtT, Judge Michael Clements, on 4 July 2022, refusing an application made by a person with whom SA (through her Deputy) was engaged in civil litigation, to lift an anonymity order made on 22 December 2008 by the FtT which had allowed her appeal in earlier immigration proceedings which led to SA being granted refugee status in the first place (“the asylum appeal”).

ANL also seeks disclosure, under the principles established in Cape Intermediate Holdings v Dring [2019] UKSC 38; [2020] AC 629 of (i) an unredacted version of the FtT’s decision; (ii) the evidence SA filed in relation to her appeal to the FtT against the revocation order; and (iii) the skeleton arguments filed by the parties in the tribunal proceedings and on this appeal. Mr Jay Gajjar, who appeared with Mr Ahmad Badar on behalf of SA to resist ANL’s application, indicated that her Deputy would not oppose disclosure of the skeleton arguments, (albeit in an anonymised and redacted format, consistent with the anonymity orders being maintained). However, Mr Gajjar questioned whether there was justification for granting a non-party access to the evidence filed in support of SA’s appeal to the FtT.

Following directions given by the court for the hearing of ANL’s application, the Government Legal Department wrote a letter indicating that the SSHD adopted a strictly neutral stance. In the light of that indication, Lord Justice Arnold and I directed that the SSHD need not attend the hearing.

In her oral submissions Ms Sarah Palin, counsel for ANL, sensibly focused on my order, because it was indisputable that if that order were discharged the orders made by the tribunals below could no longer remain in force. In any event, as Lord Justice Arnold pointed out in the course of the hearing, the time for challenging the anonymity orders made in the FtT and the UT on their merits (e.g. on the grounds of an alleged misdirection as to the law) has long since passed. The issue at the heart of this application is whether in the present circumstances and on the evidence as it now stands, there is a sufficient justification for continuing to derogate from the fundamental principle of open justice.

It is possible to dispense with many of the reasons said to justify such derogation without examining the arguments in detail, because they have been overtaken by events. SA was initially afforded the protection that is usually granted to persons claiming asylum or humanitarian protection on the basis of what they claim to be a well-founded fear of death, severe ill-treatment or persecution on return to the home state, and the Presidential guidance that applies to making orders for anonymity in the FtT and UT was followed in that regard. Both the FtT and the UT expressly justified making the order in the current proceedings because of a belief that SA was entitled to lifetime anonymity under section 1(1) of the Sexual Offences (Amendment) Act 1992 by virtue of her claim to have been the victim of forced child marriage in Saudi Arabia.

Ms Palin took issue with that approach. She contended that section 1(1) of the 1992 Act did not apply because on the proper interpretation of that section, SA had not made a qualifying allegation of sexual assault or human trafficking, relying on the decision of Kerr J, sitting in the Employment Appeal Tribunal, in Ajao v Commerzbank AG and others [2024] EAT 13; [2024] ICR 644. Ms Palin also relied upon the limited territorial reach of human trafficking offences to which that Act applies if the alleged perpetrator is a non-UK national, referring to section 2 of the Modern Slavery Act 2015. Nevertheless, in answer to questions from the court, Ms Palin conceded that if someone claims to be the victim of such behaviour, wherever it occurred and regardless of the nationality of the alleged perpetrator, this would be a factor that a tribunal would be entitled to take into account when considering whether to make an anonymity order to protect their right to respect for their privacy.

We do not need to consider whether Kerr J’s analysis in Ajao is correct. Any observations about that are best left to a case in which that issue arises for determination. The short answer to any claim to continue the reporting restrictions on either of the two bases I have identified is that SA’s account, which the original panel of the FtT in the asylum appeal believed, has been shown to be false on compelling evidence, and the FtT and UT have so found. That removes the factual foundation upon which any such justification was based.

Although Mr Gajjar did try to rely on the concession made by the SSHD in the FtT that there would be a risk on return to Yemen, which has been found to be SA’s true country of origin, there are no plans to return her to Yemen, there is no claim for asylum or humanitarian protection in respect of Yemen, and it seems unlikely that such a claim will ever materialise because apparently SA still insists, in the teeth of overwhelming evidence to the contrary, that she is a Saudi national. In any event the risks in Yemen apply across the board and are not personal to SA or her circumstances. They are a result of the dire and tragic situation arising from the ongoing conflict in that country. The publication of her identity would have no bearing on those risks. That means that the only basis on which the continuation of the order could be justified is the risk posed to SA’s mental health were she to be identified, which was the reason why I made the order that I did.

For the reasons set out in this judgment, having given careful consideration to the competing arguments, I would refuse this application. On the evidence that is currently before the Court, when balancing SA’s right to respect for her private life under Article 8 of the European Convention on Human Rights and Fundamental Freedoms (“ECHR”) against the rights of the media and the public to freedom of expression under Article 10 ECHR, I am satisfied by Mr Gajjar that the balance comes down firmly in favour of maintaining the order for anonymity. That is so notwithstanding the arguments advanced by Ms Palin which centred around the fact that a substantial amount of information about SA is already in the public domain. In my judgment, non-disclosure of her identity is still necessary to secure the proper administration of justice and in order to protect her interests, see CPR 39.2(4).