MSM v SECRETARY OF STATE FOR THE HOME DEPARTMENT

The Appellant, who benefits from the protection of anonymity, is a national of Somalia, aged 29 years. This appeal has its origins in a decision made on behalf of the Secretary of State for the Home Department (the “Secretary of State”), dated 02 January 2014, whereby the Appellant’s application for asylum was refused. The Appellant appealed to the First-tier Tribunal (the “FtT”) which, by its determination promulgated on 18 March 2014, affirmed the decision of the Secretary of State. The ensuing grounds of appeal raised the three issues of the asserted risk to the Appellant as a member of a group, namely journalists in Somalia; the Appellant’s likely conduct on return to Somalia and, in particular, whether he would, or would be obliged to, transfer to a different profession; and the historical factual issue of whether the Appellant had been specifically targeted by the terrorist organisation “Al-Shabaab” (“AS”). Permission to appeal was duly granted.

The error of law hearing before the Upper Tribunal was held on 29 May 2014. Upper Tribunal Judge Dawson held that the decision of the FtT was vitiated by error of law. In a commendably focused determination, the Judge, having recorded a limited concession by the Secretary of State’s representative, ruled, in substance, that the FtT had not properly directed itself in law in relation to the matters raised in the first two grounds of appeal: see especially [13] – [14] of the decision. The Judge found no merit in the third ground of appeal. We draw particular attention to the following passages:

“[17] What is missing from the determination is a finding whether the Appellant would continue as a journalist …

There will need to be further evidence on this aspect ….

[18] If it is found that the Appellant will resume his occupation as a journalist on return, the issue will be whether it would be reasonable to expect him to change his career and to resume his earlier [teaching] or another occupation.”

These passages shape the essential framework of the exercise of re-making the decision of the FtT which now falls to this Tribunal.

Upper Tribunal Judge Dawson expressly preserved a series of findings of fact contained in the determination of the FtT, namely:

The subject matter of rule 15 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (the “2008 Rules”) is “Evidence and Submissions”. Rule 15(2A) provides:

“In an asylum case or an immigration case –

(a)

If a party wishes the Upper Tribunal to consider evidence that was not before the First-tier Tribunal, that party must send or deliver a notice to the Upper Tribunal and any other party –

(i)

indicating the nature of the evidence; and

(ii)

explaining why it was not submitted to the First-tier Tribunal; and

(b)

When considering whether to admit evidence that was not before the First-tier Tribunal, the Upper Tribunal must have regard to whether there has been unreasonable delay in producing that evidence.”

This provision must be considered in conjunction with rule 15(2), whereby:

“The Upper Tribunal may –

(a)

admit evidence whether or not –

(i)

the evidence would be admissible in a civil trial in the United Kingdom; or

(ii)

the evidence was available to a previous decision maker; or

(b)

exclude evidence that would otherwise be admissible where –

(i)

the evidence was not provided within the time allowed by a direction or a practice direction;

(ii)

the evidence was otherwise provided in a manner that did not comply with a direction or a practice direction; or

(iii)

it would otherwise be unfair to admit the evidence.”

In short, the Upper Tribunal is invested by rule 15(2A) with a discretionary power to admit evidence which was not placed before the FtT. In deciding whether to exercise this power, it should take into account rule 15(2) and must have regard to the overriding objective, per rule 2(3)(a).

The hearing date upon which this application unexpectedly emerged had not been allocated for this purpose and this was compounded by the lack of proper advance notice in compliance with the Rules. When one considers the meticulous case management of this appeal undertaken by Upper Tribunal Judge Dawson since the setting aside of the FtT’s decision in June 2014, the eleventh hour developments in these proceedings must be condemned as inexcusable. Matters were exacerbated by the unacceptable failure of the Appellant’s legal representatives to disclose to either the Tribunal or the Respondent’s representatives, throughout the case management phase, the possibility of developments of this kind. The knowledge possessed by the Appellant’s representatives was not shared. This was entirely unacceptable in the circumstances of this appeal. It is universally recognised that the late and unexpected introduction of evidence in whatever form is incompatible with the principles which govern contemporary litigation: see O’Sullivan v Herdmans [1987] 3 ALL ER 129, per Lord Mackay of Clashfern at 137. The related principle of litigation cards face up is now one of some antiquity.

The duties on representatives imposed by these principles apply with particular force to issues relating to the acquisition of, disclosure of and reliance upon documents by any party. The non-disclosure of another, parallel process, under the Data Protection Act 1998 (the “1998 Act”), throughout a protracted period, upon which we shall elaborate presently, placed the hearing date in serious jeopardy, to the knowledge of the Appellant’s representatives and no one else. Disarray resulted and a substantial quantity of valuable court time was wasted. This is intolerable. We shall consider at a later stage of these proceedings whether an order for wasted costs under section 29(4) of the Tribunals, Courts and Enforcement Act 2007 or Rule 10(3) of the 2008 Rules, or any other order, is appropriate.

The Tribunal’s attempts to bring form and focus to this application during the hearing achieved limited success. The documents which the Appellant wishes to have admitted as fresh evidence are a series of materials provided to the Appellant’s solicitors under cover of a letter dated 06 March 2015 from UK Visas and Immigration (hereinafter “UKVI”), an agency which is described as “an operational command of the Home Office”. These documents were provided in response to a “subject access request” under the provisions of the Data Protection Act 1998. While the letter is dated 06 March 2015, the attachments were not brought to the attention of the Tribunal until 23 March 2015, the eve of hearing. Furthermore, the letter makes clear that the request was made by a letter sent as long ago as 25 November 2014. The significance of this is that during the period of almost four months preceding the hearing which elapsed thereafter and notwithstanding that case management reviews were conducted by the Tribunal, the existence of this parallel process was concealed from all. This is quite unacceptable.

The documents disclosed were presented to the Tribunal in two groups. The submissions of Counsel made no reference whatsoever to the larger bundle which, upon a cursory perusal, consists of materials generated by the Applicant’s application for asylum and the two ensuing appeals and is largely duplication. In passing, we observe that the costs involved in preparing and reproducing this large, redundant bundle are unlikely to be recoverable, come what may. It seems to us a paradigm illustration of the blizzard mentality, regrettably so prevalent in many areas of contemporary litigation.

In advancing the application under Rule 15(2A), Counsel referred only to a discrete collection of documents assembled in a small booklet. The context in which the Applicant’s belated application unfolded is shaped by two main elements. The first of these is a passage contained in the Respondent’s decision letter dated 02 January 2014:

“[46] The above information indicates that journalists and those who work in the media are generally at risk in Somalia, with those working for state-owned media companies at the greatest risk. It is noted that [Radio X] is an independent radio station however and is not linked in any way to the Somali Government ….

[47] It is also noted that you worked as a reporter for [Radio X] from May 2011 until September 2013 ….

Before this you worked as a teacher for three years, teaching mathematics and Somali language …..

[48] It is therefore concluded that although working as a reporter may place you at risk in Somalia, it is not a necessary risk, as you have transferable skills as a teacher which would allow you to live and work peacefully in your home country. When this was put to you in interview the only reason you cited for not pursuing a career as a teacher was that the salary is less than that of a reporter.”

The “above information” is an excerpt from the Home Office publication entitled “Country Information and Guidance: Somalia” (2013). Drawing on identified sources, this report contains the following passages:

“Despite the violence, dozens of radio stations aligned with particular factions continued to broadcast in Mogadishu and in other parts of the country. The TFG [Transitional Government] continued to support Radio Mogadishu ……

This includes journalists from popular stations …. who have found it challenging to operate under [AS] ……

Journalists were subjected to violence, harassment, arrest and detention in all regions. The National Union of Somali Journalists reported 18 journalists were killed across the country in 2012 and 14 were wounded in Mogadishu … This was the deadliest year on record for the country’s journalists …..

Concerning the big number of assassinated journalists, it is not justified to say that [AS] is targeting this group specifically, according to the international NGO(B) Mogadishu. [AS] has taken responsibility for the killings of only journalists from the state run Radio Mogadishu. Who is behind the rest of the killings of journalists is not clear. In this connection it should be mentioned that Shabelle Media has had a conflict for a long time with the Government. It was added that most journalists will not report negatively about [AS].”

[Emphasis added.]

Sequentially, the next material development to which we refer is the written submission of Ms Rhee, Counsel for the Respondent, dated 12 November 2014, provided in response to the Upper Tribunal’s directions. Having referred to [46] of the decision letter, the submission summarises the Respondent’s position thus:

“[10] First, the Secretary of State was not thereby purporting to accept that all practising journalists in Somalia are necessarily at risk. The Secretary of State submits that this is evidenced not only from the passages of the COIS Report …. which do not support such a wide concession, but also from the fact that she then went on to state ……….. that ‘working as a reporter may place [the Appellant] at risk’ [emphasis added]. That is, her decision was that in any event an individualised risk assessment would need to be undertaken, albeit against general background factors. …..

[15] Second, if and to the extent that paragraph [46] of the Secretary of State’s refusal letter is considered to contain a concession that all practising journalists in Somalia are necessarily at risk, then the Secretary of State confirms that she does indeed seek to withdraw such concession. Such a concession is neither supported by the information in the COIS Report … nor …. the information in the current CIG Report (April 2014). Whilst both reports indicate that there are known instances of journalists having been targeted, the evidential picture falls far short of establishing that all journalists are generally at risk, let alone journalists who do not work for state owed media companies (such as Simba Radio).”

Ms Rhee’s written submission further contains the proposition that the question of risk will be a matter for adjudication by the Tribunal based on all available evidence, including that postdating the decision letter, continuing:

“The Secretary of State’s position is that it is therefore somewhat artificial to seek to isolate a concession in respect of the evidential position pertaining at a given moment in time, as in any event the position would need to be considered against the most up to date and relevant evidence.”

Finally, the submission discloses the Respondent’s wish to withdraw the “concession” if necessary.

The gist of the argument advanced to the Tribunal by Counsel for the Appellant was that to permit the Respondent to withdraw the “concession” would be to condone an act committed in bad faith and that withdrawal should not therefore be permitted. In the skeleton argument it is contended:

“The Appellant therefore submits that on the balance of probabilities he can prove that the Respondent has acted in bad faith in withdrawing the concession as she has not acted reasonably, with good faith and upon lawful and relevant grounds of public interest.”

The Appellant’s case is that bad faith on the part of the Respondent is evidenced by certain of the documents yielded by the subject access request. It was submitted, in particular, that these documents support the contention that the Respondent’s instructions upon which Ms Rhee’s aforementioned submission of November 2014 was evidently based were tainted by bad faith. The Tribunal was referred to an email chain preceding Ms Rhee’s submission. We consider that there are two key items in this sequence, the first and the last. This sequence of communications begins with a four page document generated in October 2014. One deduces readily that the author of this document is the Senior Presenting Officer who had represented the Respondent at a case management hearing held on 15 October 2014, resulting in a direction from the Tribunal to the Respondent to provide a written submission on the issue of the “concession”. It is abundantly clear that this document takes the form of instructions prepared by the client for the benefit of the Respondent’s solicitor and Counsel and for the purpose of seeking legal advice. The ensuing email communications take their hue and colour from this starting point. Some of the electronic communications generated during this phase are routine and might not, individually, attract privilege. This, however, is to be contrasted with the lengthy opening communication (summarised above) and a further electronic communication, dated 04 November 2014, which marks the end of this discrete phase. This is clearly a request by the Treasury Solicitor for further instructions from the Respondent, triggered by Counsel’s request (quoted therein) for clarification of the Respondent’s instructions concerning the basis upon which withdrawal of the “concession” should be advanced. The sequence of communications ends here: there is no response to the solicitor’s request in the materials provided to the Tribunal.

The genesis of the Appellant’s quest to establish that the Respondent’s wish to withdraw the “concession” is precluded by bad faith is a passage in the decision of the Court of Appeal in NR (Jamaica) v SSHD [2009] EWCA Civ 856, the context whereof was a concession made before the first instance tribunal by the Respondent’s representative that if the Appellant was a lesbian, she would be at real risk upon return to her country of origin. The Court of Appeal espoused the approach which it had previously taken in Davoodipanah v SSHD [2004] EWCA Civ 106, where Kennedy LJ stated at [22]:

“It is clear from the authorities that where a concession has been made before an adjudicator by either party the Tribunal can allow the concession to be withdrawn if it considers that there is good reason in all the circumstances to take that course ….

What the Tribunal must do is to try to obtain a fair and just result. In the absence of prejudice, if a presenting officer has made a concession which appears in retrospect to be a concession which he should not have made, then justice will require that the Secretary of State be allowed to withdraw that concession before the Tribunal.”

Pausing at this juncture, the applicability of this statement to the “concession” contained in the decision letter is not disputed on behalf of the Appellant. In NR (Jamaica), Goldring LJ, having quoted the above passage, continued, at [12]:

“…. The Tribunal may in its discretion permit a concession to be withdrawn if in its view there is good reason in all the circumstances for that course to be taken. Its discretion is wide. Its exercise will depend on the particular circumstances of the case before it. Prejudice to the appellant is a significant feature. So is its absence. Its absence does not however mean that an application to withdraw a concession will invariably be granted. Bad faith will almost certainly be fatal to an application to withdraw a concession. In the final analysis, what is important is that as a result of the exercise of its discretion the Tribunal is enabled to decide the real areas of dispute on their merits so as to reach a result which is just both to the Appellant and the Secretary of State.”

The question for the Tribunal, therefore, is whether the Respondent is acting in bad faith in seeking to withdraw the “concession” in the decision letter. We have consistently referred to the “concession” in italics and inverted commas because of the terms in which it is phrased and the evidence upon which it is evidently based. We do not readily identify black and white in either the supporting evidence or the formulation of the “concession”. Rather, there are several shades of grey. The Respondent’s submission is that the words in question should be construed in a certain way, as set out in [11] above. We consider this a respectable argument. The meaning of the words in any document is a question of law for the court conducting a dispassionate, detached and objective exercise taking into account the full context. This we consider to be orthodox doctrine and no authority to the contrary was cited. Furthermore, we consider that the Upper Tribunal is not in any event bound by this kind of “concession” (if it be such) in proceedings of this nature. The Tribunal is the ultimate arbiter of all issues, including the key issue of future risk to the Appellant in certain eventualities, having acquitted its duty to consider all material evidence, including the “concession”, as construed by the Tribunal in due course, in the round.

On the assumption that the Appellant’s construction of the words under scrutiny is legally correct, we consider that this application must fail because the Appellant has not discharged the burden of establishing bad faith in the manner asserted. In contemporary public law, bad faith and improper motive are sometimes interchangeable terms, or concepts. Fundamentally, both denote the misuse of power. See, generally, De Smith’s Judicial Review (7^th Edition), para 5 – 087. In SCA v Minister of Immigration [2002] FCAFC, bad faith is defined as “a lack of an honest or genuine attempt to undertake the task and involves a personal attack on the honesty of the decision maker”: see [19]. The authors of De Smith continue, at paragraph 5 – 089:

“Bad faith is a serious allegation which attracts a heavy burden of proof.”

In practice, bad faith typically denotes conduct on the part of a public official which is dishonest. It “always involves a grave charge”: per Megaw LJ in Cannock Chase District Council v Kelly [1978] 1 WLR 1 at 6. Furthermore, this serious allegation requires, in every case, ample advance notice and detailed particularisation: the present case is a worrying illustration of the neglect of these imperatives.

In one of the earlier authoritative judicial formulations, it was held that the onus entails establishing that the public authority was intent upon achieving an improper purpose “under colour and pretence” of a proper purpose: per Lord MacNaghten in Westminster Corporation v London and North Western Railway [1905] AC 426, at 430.

The Appellant invites the Tribunal to infer bad faith from the materials highlighted and summarised above. We conclude without hesitation that the onus of proving bad faith has not been discharged by the Appellant. We consider that the materials fall well short of being tainted in the manner asserted. In the first of the two main electronic communications, it is evident that the presenting officer concerned was simply expressing a view about the timing of the production of certain documents. Crucially, the words used do not, expressly or inferentially, evince an intention to conceal material documents. Rather, the author of the communication was simply mooting the possibility of disclosing them at a later stage of the proceedings. Furthermore, this unfolded in a context where the author had not received legal advice and was preparing instructions which would enable such advice to be provided. At its worst, this discloses a questionable tactic. As regards the second main electronic communication, we find nothing untoward. This, in our view, reveals that the Respondent’s representatives were giving conscientious and serious consideration to an issue which was, on any showing, a challenging one. Importantly, it is clear that the representatives had been equipped by the Respondent with the most recent of the relevant reports (CIG, April 2014). There can be no suggestion that the Respondent was withholding anything of relevance from its lawyers. Nor is there any evidence of any misleading, incomplete or dishonest response by any of the Respondent’s officials to the lawyers’ request for instructions. Accordingly, whatever the meaning to be placed on the relevant passages in the decision letter, we conclude that the Respondent was not acting in bad faith in the respects alleged.

The question of whether the Respondent is legally entitled to the return of some of the documents provided in response to the subject access request is, in our view, a quite separate one, notwithstanding that it was conflated with the bad faith issue in the submissions of Counsel. The test which is engaged has been articulated in a number of decided cases and is expressed with particular clarity in the judgment of Peter Gibson LJ in Breeze v John Stacy and Sons Limited [1999] WL 477354, at page 6 of the transcript:

“There is, on the authorities, a two stage test. First, was it evident to the solicitor receiving the privileged documents that a mistake had been made? If so, the solicitor is expected to return the documents. If it was no so evident would it have been obvious to the hypothetical reasonable solicitor that disclosure had occurred as a result of the mistake?”

The wider principles expounded in Phipson on Evidence (17^th Edition), paragraph 26 – 64, do not apply. Rather, the narrower Breeze principle, summarised in paragraph 26 – 65, is engaged in the present context.

In applying this principle to the instant case, we have considered the evidence contained in the two witness statements of the Appellant’s solicitor, which were supplemented by her oral testimony to the Tribunal. One of the exhibits to these statements confirms that immediately upon discovering that certain materials were contained in the Appellant’s bundles for hearing, the Respondent’s solicitor communicated, in writing, a contention that this is privileged material which had been provided to the Appellant’s solicitors in error and that privilege had not been waived. The evidence of the Appellant’s solicitor informs, but is not determinative of, our evaluation of the “hypothetical reasonable solicitor” test. Having considered this evidence with care, we do not find it persuasive. We consider that it should have been abundantly clear to the hypothetical reasonable solicitor that the two major documents examined and summarised above were privileged (which the solicitor did not dispute), had been generated in the context and for the purpose of these proceedings (also not disputed) and, taking into account particularly the high level of importance which the discrete issue of the “concession” had assumed, had been provided in error. The hypothetical solicitor would have been cognisant of the full background, including the appeal proceedings, the identity of the Respondent’s Counsel, the content of the latter’s submission of November 2014 and the evident fact that the provider of the documents, UKVI, was acting without reference to and unbeknownst to the Respondent’s litigation representatives. The fact that one arm did not know what the other was doing would in our estimation have been obvious. Evaluating all the evidence objectively, we consider that the error was a glaring one. This analysis is not undermined in any way by the consideration that some of the disclosed documents were edited by masking, not least because the accompanying letter of 06 March 2015 expressly stated that this measure had been taken –

“…. because Home Office records sometimes include other information that we are not able to release to you under the Data Protection Act 1998 (for example, another person’s data), so this is blacked out.”

To summarise, we are satisfied that the hypothetical reasonable solicitor would have realised quickly that an unintended windfall had materialised in consequence of unmistakeable oversight, inadvertence or error.

Accordingly, we refuse the Appellant’s application under Rule 15(2A). We shall decide the issue of future risk to the Appellant by reference to all relevant and available evidence in the round, including the Respondent’s decision letter and our construction of its terms.

Henceforth, we consider that, as a general rule, disclosure of documents should be pursued within the ambit and framework of the legal proceedings in question, applying the governing procedural regime. Parallel processes are to be firmly discouraged since, as the present case demonstrates, they are inimical to the important values of transparency, efficiency and expedition and have the potential to give rise to ambush, disruption and delay. They may also invite the condemnation of sharp practice.

This application also was not made in accordance with Rule 15(2A)(a) of the 2008 Rules. The explanation provided, based on the timing of receipt of the documents by the Respondent’s representatives, was flimsy. However, no objection to the admission of these documents was articulated on behalf of the Appellant and, in particular, no prejudice of any kind was asserted. The key consideration in determining this application is the nature of the documents. On a brief perusal, they all have a direct bearing on the issue of future risk to the Appellant and, hence, are plainly relevant. The weight to be attached to them individually is a matter upon which we do not pronounce at this stage. We accede to the Respondent’s application.

Giving effect to the analysis and discrete findings and conclusions above: