MSM v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Applications to adduce fresh evidence in the Upper Tribunal must comply scrupulously with Rule 15 of the Tribunal Procedure (Upper Tribunal) Rules 2008. The Tribunal retains a discretion to excuse non-compliance, but must consider delay, fairness and the overriding objective.

A concession may be withdrawn for good reason where justice requires it. Proven bad faith may prevent withdrawal, but it is a grave allegation requiring clear and particularised proof. Documents inadvertently disclosed despite legal professional privilege must be returned where the error was evident, or would have been obvious to a hypothetical reasonable solicitor. Disclosure should ordinarily be pursued through the procedural framework of the proceedings, rather than parallel processes.

The appellant, a Somali national, appealed against the refusal of his asylum claim. The First-tier Tribunal dismissed the appeal on 18 March 2014. At an earlier error-of-law hearing, Upper Tribunal Judge Dawson set aside that decision in part and preserved findings including that the appellant had worked as a journalist but had not been targeted by Al-Shabaab.

The remaking exercise concerned the appellant’s future risk if returned to Somalia. Before that exercise, both parties sought to adduce further evidence. The appellant relied on documents obtained through a subject access request under the Data Protection Act 1998, including communications said to show that the respondent had acted in bad faith in seeking to withdraw an asserted concession about risk to journalists. The respondent claimed legal professional privilege and sought the return of some documents, while also applying to adduce its own further evidence.

1. The appellant’s application was refused and the respondent’s application granted. The appellant had not complied with Rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008. Although the Tribunal excused that procedural default under Rule 7, it deprecated the late and undisclosed attempt to introduce evidence. The Tribunal would determine future risk on the relevant admissible evidence in the round.

2. The asserted concession in the respondent’s refusal letter was not unequivocal. Its proper meaning was a matter of objective construction in its full context. In any event, the Tribunal was not bound by such a concession when deciding the ultimate issue of future risk.

3. The appellant failed to establish bad faith. Applying the approach stated in NR (Jamaica) v SSHD [2009] EWCA Civ 856 and Davoodipanah v SSHD [2004] EWCA Civ 106, a concession may be withdrawn for good reason where this accords with the administration of justice. Bad faith will ordinarily be fatal, but it is a serious allegation carrying a heavy evidential burden. The disclosed communications showed no dishonest attempt to conceal material or misuse power.

4. The principal communications were prima facie privileged and had been disclosed in error. Applying the two-stage test in Breeze v John Stacy and Sons Limited [1999] WL 477354, the relevant question was whether the error was evident to the recipient solicitor or would have been obvious to a hypothetical reasonable solicitor. It would have been obvious that the documents were generated for the litigation, were privileged and had been inadvertently released by a different arm of the Home Office. They could not be relied upon.

5. As general guidance, parties should seek disclosure through the governing procedure of the proceedings. Parallel processes, including subject access requests under the Data Protection Act 1998, risk ambush, disruption and delay.

• Upper Tribunal (Immigration and Asylum Chamber): On an earlier error-of-law hearing, Upper Tribunal Judge Dawson held that the First-tier Tribunal had erred in law on issues concerning the appellant’s future conduct and risk as a journalist. The decision was set aside to that extent and specified factual findings were preserved.
• First-tier Tribunal: The appellant’s appeal against the refusal of asylum was dismissed by a determination promulgated on 18 March 2014.