Case No. UKUT-00338-(IAC)

[2011] EWHC 1127 (Admin); [2011] 2 FLR 1033 “the exercise should be carried out or supervised and checked by a lawyer (or other suitably trained and experienced person) by reference to the issues in the case”. That was said in the context of a social worker being required by his department to consider questions of disclosure. It applies a fortiori when the applicant is a young person seeking asylum. 51.We regard it as uncontroversial to frame the scope of the duty of candour in this way. That it includes an obligation on a party to review their communications and to disclose material which might be adverse to the case that party seeks to advance is clearly demonstrated by considering relevant communications within a respondent council. In the event that a social worker in the respondent council wrote an email or a Whatsapp message casting doubt on the age assessment undertaken, it would naturally be incumbent on the respondent’s solicitor to disclose that material in order to comply with the duty of candour. 52.It is impossible to be prescriptive about the type of documents which must be disclosed as a result of this exercise. The exercise will be fact sensitive but the issue in the proceedings is the age of the applicant and anything which militates in favour of the view taken by the respondent must be disclosed. That will necessarily include any express statement of the applicant’s date of birth, whether contained in a message on a social media platform or in the personal details provided to the platform by the applicant. It will also encompass, for example, any information given by the applicant about the dates they attended school. It is probably unhelpful to attempt to give further examples beyond these. 53.Seen in this context, the standard directions which are routinely issued by an Upper Tribunal lawyer in all such cases might be thought to be otiose. As we have recorded above, those directions require production of ‘all documents relevant to the determination of age and date of birth’ but both parties are under an ongoing duty from the outset of the claim to disclose all such material in any event. Those directions nevertheless serve as a useful aide memoire to applicants and respondents alike to ensure that the duty of candour is observed.54.It is the experience of the Upper Tribunal, however, that this obligation has not always been fully understood by those acting for applicants, or has not been fully explained to applicants so as to ensure compliance. There have been cases which have settled at a late stage as a result of a respondent’s late discovery of social media material which casts grave doubt on the age claimed by an applicant. In most cases of that nature, there will be no reasoned judgment recording the course of events; a short order will be agreed, recording that the proceedings are withdrawn by consent, with consideration of costs to follow.55.In R (LS) v London Borough of Brent (JR/1050/2021), however, Upper Tribunal Judge Keith refused the applicant’s request for permission to withdraw his application for judicial review as he considered it necessary to give a reasoned judgment. The applicant had failed in that case to make any reference to his Facebook account which, it transpired, contained photographs of him undertaking what could only have been a ceremony of marriage. He had never mentioned being married and had not disclosed his own Facebook account. When he finally disclosed his wife’s name, the respondent council was able to consider her Facebook account, whereupon his own solicitors and counsel also reviewed the account, became professionally embarrassed and withdrew from the proceedings. The judge understandably inferred that the applicant had withheld this information, and his marriage certificate, because it cast doubt on his claimed age. 56.There was a similar failure in R (HB) v Derby City Council (JR/5394/2019), which resulted in Upper Tribunal Judge Smith being compelled after the start of the hearing to make an order for specific disclosure of relevant screenshots of the applicant’s Whatsapp account and text messages from both of her mobile telephones. It seemed to the judge that the solicitor with conduct of the matter had misunderstood the proper approach to relevance when she had come to consider the messages on the applicant’s phone. The judge was particularly concerned when the applicant subsequently deleted these messages.57.It appears, therefore, that the duty of candour has not always been fully discharged, or even fully understood, in cases such as this. It has been said that the duty is a ‘self-policing’ one (R (Houreau & Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin)) but it appears that the duty has not always been observed, or policed, as it should have been in this context. 58.For the future, we consider that it would be permissible for the Tribunal to require a statement from an applicant’s solicitor, confirming that the applicant has disclosed to them the details of any social media accounts they hold and that the solicitor in question had undertaken a reasonable and proportionate search of those accounts in order to ensure that all documents relevant to the issues in the case have been disclosed. We note that this was the course of action taken by UTJ Keith in R (LS) v London Borough of Brent. It was also the course of action urged upon us, by consent, in this case. And we note that it was the course of action taken by Eady J at [39] of R (Gardner & Anor) v Secretary of State for Health and Social Care & Ors [2021] EWHC 2422 (Admin), in which questions arose about the extent to which the respondents had complied with their duty of candour. 59.Requiring a ‘disclosure statement’ of that nature serves at least three different purposes. It ensures, as we have said, that the applicant and their solicitors have undertaken a process which may otherwise have been overlooked. It ensures, secondly, that an applicant’s social media accounts – which might contain highly personal and sensitive information which has no bearing on their age – are only subjected to scrutiny by their own legal representative to the extent that is properly considered necessary. It also serves to ensure that a respondent to such proceedings has a specific reassurance from an officer of the court that any relevant material has been disclosed. 60.Ms Weston did not submit that a process such as that we have outlined above would be unlawful, whether in the sense that it would extend beyond the ordinary duty of candour, or that it would be contrary to section 6 of the Human Rights Act 1998. We cannot see how such a submission could have been made. To require a party to disclose such material, insofar as it is relevant to the issues before the Tribunal, must in our judgment be lawful and proportionate.61.Having considered the steps which should be taken by the parties in order to comply with the duty of candour, and the way in which that might best be facilitated by the Tribunal, we turn to the question of specific disclosure. The starting point for any such application is to consider whether the applicant has demonstrably complied with their duty of candour. It will be a highly material consideration that there is a statement from a solicitor confirming that they have undertaken a reasonable and proportionate search of the applicant’s social media accounts and have disclosed anything of relevance to the question of the applicant’s age. The fact that the statement is made by a solicitor and the consequences of making a false or incomplete statement will enable a respondent and the Tribunal to invest considerable trust in that process.62.Cases will nevertheless arise in which a respondent or the Tribunal is concerned that material of relevance has not been disclosed to the Tribunal. R (LS) v London Borough of Brent, cited above, provides a real example, in which belated scrutiny of the applicant’s wife’s social media account cast doubt on the extent to which the applicant had complied with his duty of candour. Where an application for specific disclosure is made, a number of material considerations arise, many of which we gratefully adopt from the skeleton argument prepared by leading and junior counsel for the applicant in this case.63.We consider that it is necessary, firstly, for there to be an application for specific disclosure. The directions which were given in this case for disclosure and inspection of the applicant’s social media accounts were not made on application and it appears from the statement made by Mr Taylor of Osbornes Solicitors that similar orders have been made as a matter of course in other Age Assessment cases. To do so is contrary, in our judgment, to the approach required by Tweed v Parades Commission for Northern Ireland [2006] UKHL 53; [2007] 1 AC 650, in which Lord Bingham stated at [3] that ‘orders for disclosure should not be automatic [and] [t]he test will always be whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and justly.’ 64.That leads us to a second point made by Ms Weston, which is that it is impermissible in this context to make an application for specific disclosure which amounts, in truth, to nothing more than a ‘fishing expedition’ of the type deprecated expressly by Lord Carswell and Lord Brown at [31] and [56] of Tweed v Parades Commission. Whilst a respondent in such proceedings might desire to have access to an applicant’s entire social media footprint, we consider there to be a number of proper objections to a request which is framed so widely. As we have already observed, and as reflected in the expert report of Dr Veale, an individual’s social media accounts are likely to contain a vast amount of information about them, much of which is likely to be irrelevant to the matters in issue. That material may contain information about a person’s medical history or even information which is subject to legal professional privilege. 65.To require an applicant to surrender their login details and to have their social media accounts scrutinised by a local authority’s legal team is an interference with their private life. We cannot see how it would ever be proportionate to expect an applicant who has confirmed that they have complied with their duty of candour to submit to such wide-ranging scrutiny in the hope that the local authority might discover something not previously disclosed which bears on the matters in issue. Before making such a wide-ranging order, it would be incumbent upon a judge to consider whether a less intrusive measure could properly be used in order to achieve the legitimate aim pursued, since that is a necessary consideration in the modern conventional approach to issues of proportionality under Article 8 (or Article 10) ECHR: Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700.66.Ms Weston submitted that the Tribunal must take account of the best interests of the child in considering whether to make an order for specific disclosure in such cases. We disagree, since that submission assumes what must be established in the proceedings; the age of the person concerned. We doubt that consideration of section 55 of the Borders, Citizenship and Immigration Act 2009 would add much if anything to the enquiry required by Article 8 ECHR in any event. 67.As Lord Bingham stated in Tweed v Parades Commission, the test will always be whether the disclosure in question is necessary to determine the matter in issue. Whether it is necessary and proportionate to make such an order will be for the Tribunal in question. We consider Ms Weston to have been correct in her oral submission that there should be some ‘trigger’ for such an application. Whether that is because it transpires that a young person has a previously undisclosed social media account or because, as in R (LS) v London Borough of Brent, some other matter is discovered which tends to suggest a previous lack of candour, there should be some specific reason for the application. We accept Ms Weston’s contention that the submission at [11] of Mr Harrop-Griffiths’ skeleton (“[t]here is much information that could be relevant to the determination of age”) will not suffice.68.At the risk of extending Ms Weston’s analogy too far, we consider that there should also be a specific target when an application for specific disclosure is made. On the facts of this case, for example, there has understandably been a focus on the applicant’s Facebook account and the activity on that account before he arrived in the United Kingdom. Had his solicitors failed to disclose the posts which he made in Serbia, the respondent might properly have asked for an order that the applicant’s Facebook activity between one date and another be disclosed.69.We have made scant reference thus far to the expert report of Dr Veale. We have factored his concerns into our analysis insofar as we have considered it necessary to do so. We recognise and record that he expressed particular reservations about the reliability of the ‘timeline’ and any view formed by a Meta platform about the age of a particular user. We also note that he had further concerns about the scope of the information which would be produced by the ‘Download Your Information’ function on Facebook. We did not hear argument on these points and do not consider it necessary to attempt to resolve them, since there was no attempt on the part of the respondent in this case to support the salient part of the order made after the Case Management Hearing. Such objections might need to be considered in the context of applications for specific disclosure, however. For the avoidance of doubt, nothing we have said in this judgment is intended in any way to undermine or even to revisit what was said on that subject in XX (PJAK – Facebook) Iran CG [2022] UKUT 23 (IAC). Post-Script – The Transfer of Age Assessments to the FtT70.By Part 4 of the Nationality and Borders Act 2022 and from a date to be appointed, challenges to age assessment decisions made by a local authority (or the Secretary of State) will be brought by way of appeal to the First-tier Tribunal rather than proceedings commenced in the Administrative Court and transferred to the Upper Tribunal. By s54(3) the Tribunal’s task in such an appeal is to determine the appellant’s age on the balance of probabilities and to assign a date of birth to him or her. By s54(5), a determination of age on such an appeal is binding on the Secretary of State for the Home Department and on a local authority. 71.Evidently, in such an appeal, there is no duty of candour upon an applicant. There is no duty of disclosure comparable to that which appears in the CPR. Indeed, the only duty upon a respondent to such an appeal is not knowingly to mislead: Nimo (appeals: duty of disclosure) [2020] UKUT 88 (IAC). We doubt that either the parties’ duty to co-operate with the First-tier Tribunal or Baroness Hale’s as-yet undeveloped statement about a ‘co-operative process of investigation’ in Kerr v Department for Social Development [2004] 1 WLR 1372 suffices to fix an appellant in such a case with anything approaching a duty of candour such as would exist in judicial review proceedings.72.That said, the FtT clearly has power to require a party or another person to provide documents, information, evidence or submissions to the Tribunal or a party: rule 4(1)(d) refers. The FtT also has a power to order any person to answer any question or produce any documents in that person’s possession or control which relates to an issue in the proceedings: rule 15(1)(b) refers.73.As presently advised, we so no reason why directions of the kind contemplated above might not permissibly be made by the FtT. It might, in other words, direct that an applicant is to provide details of any social media accounts he uses, and that his solicitor is to conduct a reasonable and proportionate search of those accounts in order to ascertain whether they contain any material which relate to the sole issue in the proceedings: the appellant’s age. Prima facie, the making of such a direction would be necessary and proportionate, given the need for the First-tier Tribunal to decide the question posed by statute with sight of all evidence relevant to that task. 74.Subject to the considerations we have outlined above, that Tribunal might also order the specific disclosure of material from a social media account. Whilst the FtT cannot have the reassurance provided by the duty of candour, it may legitimately and in accordance with the guidance we have set out above give directions to the parties which will ensure that it is equipped to assign a date of birth to the applicant, as required by statute. 75.We offer those observations in light of the forthcoming transfer of these cases to the First-tier Tribunal. The reasons that we approved the order proposed by the parties in this case appear in the preceding sections of this judgment. The application for judicial review is now proceeding on the basis of that order. ~~~~0~~~~1 R (HAM) v London Borough of Brent [2022] EWHC 1924 (Admin) refer