Immigration Law Practitioners' Association v The Tribunal Procedure Committee & Anor

Permission was granted for a judicial review challenge to the lawfulness of rule 13 of the First-tier Tribunal (Immigration and Asylum Chamber) Rules. The rule permits information to be withheld from a party in prescribed circumstances. The court observed that a procedure allowing the tribunal of fact to consider undisclosed and untested information may create a risk of an incorrect decision or a decision reached for the wrong reasons. Whether the rule was authorised by the Tribunals, Courts and Enforcement Act 2007, and whether it complied with fairness and the rule of law, remained to be decided.

The Immigration Law Practitioners’ Association brought judicial review proceedings against the Tribunal Procedure Committee and the Lord Chancellor. It sought a declaration that rule 13 was ultra vires, an order quashing it and ancillary relief.

The challenge concerned provisions permitting the First-tier Tribunal to prohibit disclosure of documents or information, including directions preventing disclosure to another party where serious harm and proportionality were established. The claimant argued that the rule lacked statutory authority under paragraph 11(1) of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007 and was incompatible with open justice, natural justice, fairness and the rule of law. The defendants contended that the rule operated only in narrow and exceptional circumstances and should be tested in individual cases.

The immediate issue was whether the claim raised an arguable and sufficiently important question warranting permission.

1. Permission to apply for judicial review was granted. The court considered that the claim raised important questions of principle.

2. The court accepted that a process of withholding information might be required to safeguard the well-being of particular witnesses or information providers. That possibility did not resolve the legality of rule 13.

3. The court identified a significant concern where the tribunal that sees or hears withheld information is also the tribunal of fact. A party adversely affected by the information would be unable to know or challenge it.

4. A “wait and see” approach could not eliminate the risk that undisclosed and untested information might contribute to an incorrect decision, or to a decision reached for the wrong reasons. The absence of rules governing the process was particularly concerning.

5. The court observed that practice directions might provide an adequate remedy for the potential procedural deficit, but treated that as an arguable issue rather than determining it. The judgment did not decide whether rule 13 was ultra vires, incompatible with the rule of law, or otherwise unlawful.

Not stated in the judgment.