[2023] UKUT 00163 (IAC)

The Judge did not make an anonymity order. The reasons provided were that HL did not make an application for anonymity, and there was ‘no reason to make an anonymity order in this case.’

We conclude that the Judge was unaware that anonymity had previously been ordered by Judge Maka. The true question for the Judge was whether the order should continue, and consideration should properly have been given to the appeal concerning a claim for international protection.

The Supreme Court emphasised in Kambadzi v Secretary of State for the Home Department [2011] UKSC 23, [2011] 1 WLR 1299, that anonymity must be justified on a case-by-case basis. However, as confirmed at paragraph 22 of Presidential Guidance Note No 2 of 2022: Anonymity Orders and Directions regarding the use of documents and information in the First-tier Tribunal (Immigration and Asylum Chamber) (21 March 2022), protection appeals are given anonymity to avoid any risk to an appellant arising from publication of details of the protection claim.

When granting permission to appeal, UTIAC made an anonymity order, observing that as permission had been granted HL’s rights protected by article 8 ECHR outweighed at that time those rights protected by article 10 ECHR. The order identified that the issue was to be reconsidered at the error of law hearing, though ultimately neither representative addressed anonymity in their submissions.

The Supreme Court confirmed in re Guardian News and Media Ltd and Others [2010] UKSC 1, [2010] 2 AC 697, that where both articles 8 and 10 are in play, it is for a tribunal to weigh the competing claims under each article. Since both article 8 and article 10 are qualified rights, the weight to be attached to the respective interests of the parties will depend on the facts.

Consequently, consideration as to the continuation or otherwise of an anonymity order in a protection appeal requires an intense fact-sensitive evaluation and a balancing exercise must take place when considering curtailing freedom of speech to safeguard article 8 rights. Whilst reasons for the decision can properly be brief, they must be given.

We observe that when an appeal in protection proceedings is dismissed by UTIAC it may be necessary to continue an anonymity order, in case of onward appeal.

We observe that HL was successful on appeal before the FtT, and we have dismissed the Secretary of State’s appeal. We are satisfied that when weighing the extent of the interference with her privacy on the one hand against the general interest at issue on the other hand, the balance now tips in favour of the public interest in open justice. HL will not be returned to India. It is not her case that the authorities are targeting her family in India in pursuit of her. The publication of her name will not adversely affect either her family or herself. We further observe that HL’s counsel did not seek anonymity before the FtT and this Tribunal.

We accordingly decide that the anonymity order made on 2 November 2022 should be lifted.

Observing that the Secretary of State enjoys a right of appeal to the Court of Appeal against our decision under the Tribunal Procedure (Upper Tribunal) Rules 2008 we impose a stay on our decision to lift the anonymity order, whereby the lifting will take effect ten working days after UTIAC has informed the parties of its decision on an application for permission to appeal, with liberty to the parties to request a continuation of the stay if there is an intention by the Secretary of State to renew an appeal to the Court of Appeal on receipt of an adverse decision, if made, issued by this Tribunal.

Otherwise, if the Secretary of State does not exercise her right of appeal within the time limit established by rule 44(3A), (3B)(a)(i) of the 2008 Rules the lifting will take place thirteen working days after the sending of this decision to the parties.

Since our decision to lift the anonymity order is an ancillary decision made in relation to an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002, it is an excluded decision by reason of article 3(m) of the Appeals (Excluded Decisions) Order 2009 and, thus, challengeable only by means of judicial review.