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

There was no dispute between the parties as to the legal principles or as to the approach to be applied. The starting point is open justice. There is a helpful summary of the requirements of open justice, by reference to the main authorities on that subject, in the recent judgment of Sir Geoffrey Vos MR (with whom Warby LJ and King LJ agreed) in Tickle v Surrey County Council [2025] EWCA Civ 42; [2025] 2 WLR 714 (“Tickle”) at [43] to [50]. There is no need to repeat it here.

We were referred to Nicklin J’s observations in PMC v A Local Health Board [2024] EWHC 2969 (KB) (“PMC”) at [26] and [27]:

“26.

The starting point is open justice; that the administration of justice takes place in public, and the public have the right to attend all hearings held in open court. Allied to this is the corresponding right to publish reports of those proceedings. Historically that role was discharged by the press, but is now one embraced by many others who publish reports of proceedings in many different forms, e.g. articles published on blogs, academic commentary, and on social media.

27.

Consistent with the open justice principle, the general rule is that the names of the parties to the proceedings will be made public; in the documents from the Court’s records that are required to be open to the public, in the hearings that take place in open court and in the orders and judgments of the Court. There is no general exception for case where private matters are in issue, or where a party would prefer that his/her name or details of the proceedings were not revealed: Scott v Scott [1913] AC 417, 463 per Lord Atkinson; R v Evesham Justices ex parte McDonagh [1988] QB 553, 562A-C; R v Legal Aid Board ex parte Kaim Todner (A Firm) [1999] QB 966, 978g. Ordinarily “the collateral impact that [the Court] process has on those affected is part of the price to be paid for open justice and the freedom of the press to report fairly and accurately on judicial proceedings held in public”: Khuja v Times Newspapers Ltd [2019] AC 161 [34(2)] per Lord Sumption.”

Immigration and Asylum cases are no exception. That is confirmed in the Guidance (Court of Appeal: Anonymity in Asylum and Immigration Cases) [2022] 1 WLR 2023. It is unnecessary to quote extensively from that practice guidance, but paragraph 2 makes it plain that:

“the starting point for the consideration of anonymity orders is open justice. This principle promotes the rule of law and public confidence in the legal system. Given the importance of open justice, appellants should generally expect to be named in proceedings in the Court of Appeal. Any departure from this principle will need to be justified.”

Paragraph 4 provides that:

“The Court of Appeal will continue its long-standing practice of anonymising judgments in most appeals raising asylum or other international protection claims, provided it is satisfied that the publication of the names of appellants in such cases may create avoidable risks for them in the countries from which they have come.”

Derogations from open justice, including orders for anonymity and concomitant reporting restrictions, can be justified as necessary on two principal grounds: maintenance of the administration of justice, and harm to other legitimate interests. The present case falls within the latter category. Where a party to litigation seeks such an order on the basis of an argued interference with a competing right under the ECHR, the court must carry out a balancing exercise with “an intense focus on the comparative importance of the specific rights being claimed in the individual case”, per Lord Steyn in Re S (A Child) [2005] AC 593 at [17].

It is for the party seeking the derogation from open justice to satisfy the court that it is justified, not for the media or the public to show why the name of a litigant should be made freely available and able to be published (see e.g. PMC at [44].)

In another passage in PMC, which was expressly approved by the Master of the Rolls in Tickle, Nicklin J said:

“Whilst, in a very broad sense, in assessing the engaged convention rights on any application for a derogation from open justice, the Court is carrying out a “balance” between them, the scales do not start evenly balanced. The Court must start from the position that very substantial weight must be accorded to open justice. Any balance starts with a very clear presumption in favour of open justice unless and until that is displaced and outweighed by a sufficiently countervailing justification. That is not to give a presumptive priority to Article 10 (or open justice), it is simply a recognition of the context in which the Re S balance is being carried out.”

We were told that the decision in PMC had been appealed to this Court and that the appeal was due to be heard imminently. However, given that the facts of that case are very different from this, and the principles enunciated by Nicklin J do not appear to be in dispute, it seems to me to be most unlikely that the outcome of that appeal could have any bearing on the issues that we have to decide.

In Tickle the Master of the Rolls accepted at [56] that the Article 8 threshold could, in a normal case, be reached if there were a real risk that a person’s physical or psychological integrity might be undermined, citing two decisions of the European Court of Human Rights, Kaboglu and Oran v Turkey (unreported) 30 October 2018 and Von Hannoverv Germany (2004] 40 EHRR 1. That is an important consideration in the present case, for reasons I shall explain.

Ms Palin submitted that the anonymity orders made in the present case represent a serious and unjustified interference with the Article 10 ECHR rights of the media and the public. She submitted that those rights were enhanced by the media coverage of other litigation in which SA was involved. Ms Palin concentrated in particular upon proceedings in the High Court in which SA was involved over ten years ago which attracted a great deal of publicity at the time (“the historic legal proceedings”). The judge in that case had made remarks in the judgment that were critical of all the parties to that litigation, including SA, and expressed doubts about the truthfulness of some of her evidence.

The widespread contemporaneous press coverage of the historic legal proceedings included a newspaper interview with SA. SA has therefore voluntarily undergone a degree of public exposure. Ms Palin relied on suggestions made in some of those reports that in the light of the judge’s findings, SA’s immigration status might now be subject to review, and that she could be liable to removal. She submitted that public confidence in the legal system would be undermined if the public did not know the end of the story. It is in the public interest that they should know that the tribunals and this court have concluded that the Home Office was right to revoke (or to describe it more accurately, cancel) SA’s immigration status.

Ms Palin also relied on an apparent resurgence of interest in the historic legal proceedings in 2022 when the other parties to it became involved in proceedings in the Administrative Court, albeit that SA was not a party to those proceedings. She made the point that in the light of all the prior coverage of the historic legal proceedings (and to a lesser extent the public law proceedings in 2022) a substantial sector of the public could read the publicly available judgment of this court in the revocation proceedings and realise who SA is. That meant that the anonymity order was substantially ineffective. Moreover, if the press were to report that judgment without naming SA, there was a real risk of “jigsaw” identification. It was difficult, if not impossible, for them to report information that is already in the public domain without breaching the orders made by the lower tribunals and by me.

Those are powerful points. However, the vast majority of the press coverage was over ten years ago. The FtT in the revocation appeal proceedings was aware of the information that was already in the public domain in consequence of all the earlier litigation and took it into account when it made its order. So too did Judge Clements in 2022 when he refused the application to lift the anonymity order made by the FtT in 2008 in the asylum appeal. Significantly, apart from the reporting of the Administrative Court proceedings in 2022, which largely repeated what had been published at the time of the historic legal proceedings, most of the press interest and coverage occurred at a time before SA became a protected party.

The key issue which arises is whether lifting the anonymity order would be a disproportionate interference with SA’s rights under Article 8 ECHR. The threshold is a high one; the question for the court is whether the consequences of disclosure would be so serious an interference with SA’s right to respect for her private life that it is necessary and proportionate to interfere with the ordinary rule of open justice. Does the evidence demonstrate a real risk that her physical or psychological integrity would be undermined by the publicity that would follow if the order were lifted?