MST v The Secretary of State for the Home Department

The overriding objective may require a respondent’s skeleton argument to be served before an appellant’s where that promotes a fair and expeditious hearing. Disclosure is ordered only where receipt of the material is necessary for the just and fair disposal of the appeal. Speculative requests for a broad class of material, particularly where they threaten the hearing timetable, should be refused.

Anonymous or uncorroborated country material is admissible but requires cautious scrutiny and weight appropriate to its provenance. The implied undertaking restricting collateral use of compulsorily produced documents applies in Tribunal proceedings. Its application must nevertheless reflect the Secretary of State’s duty of candour and the Tribunal’s quasi-inquisitorial role. A party may not disclose such material to non-parties without the Tribunal’s permission.

Three appellants in pending country-guidance appeals concerning Eritrea sought interlocutory case-management relief against the Secretary of State. They asked for an advance written statement of the changes said to be warranted to existing country-guidance propositions, disclosure of material underlying a United Kingdom fact-finding mission report on Eritrea, and permission to give that report to specified non-governmental organisations.

The applications arose shortly before a fixed substantive hearing. The Tribunal had to decide the proper disclosure test, the effect of anonymous country material, and whether the implied undertaking restricted onward disclosure of material provided during the appeals.

1. The first application was granted. The overriding objective and procedural fairness justified a limited alteration to the sequence for skeleton arguments. The Secretary of State was required to serve first, identifying the changes said to be warranted to the existing country-guidance propositions. The appellants could then respond, followed by a short rejoinder.

2. The disclosure application was refused. The governing question was whether disclosure was necessary for the just and fair disposal of the appeals. That inquiry is evaluative and proportionate. The requested planning records, interview material, identities and unredacted transcripts were sought on speculation that something useful might emerge. The request was therefore a fishing expedition and did not satisfy the test. Disclosure would also jeopardise the fixed hearing timetable by prompting further investigations and responsive evidence.

3. There is no inherent unfairness in receiving uncorroborated or anonymous country evidence. Following CM (Zimbabwe) [2013] EWCA Civ 1303, the Tribunal must scrutinise such material cautiously and give it such weight as its source, circumstances and context justify. The appellants retained the opportunity to challenge the official’s evidence and to address the weight of the fact-finding report at the substantive hearing.

4. The application for permission to disclose the report to non-parties was refused. The implied undertaking identified in Harman v Home Office [1983] 1 AC 280 applies to documents obtained through disclosure, production or another coercive process in Tribunal proceedings. They cannot be used for a collateral purpose not reasonably necessary for the proceedings without the Tribunal’s permission.

5. The undertaking is adapted, rather than displaced, in immigration appeals. Less weight attaches to the privacy rationale where the custodian is the Secretary of State, while significant weight attaches to the duty of candour and the Tribunal’s quasi-inquisitorial function. The report had effectively been provided under the Tribunal’s authority and in discharge of those duties. The proposed disclosure to NGOs was speculative, was not necessary for a fair disposal, and would undermine the overriding objective.

The Secretary of State’s skeleton argument was directed for 18 May 2016, the appellants’ for 25 May 2016, and any rejoinder for 31 May 2016. The disclosure and onward-disclosure applications were refused.

• Upper Tribunal (Immigration and Asylum Chamber): Interlocutory decision in pending appeals. The judgment does not state the decisions from which the substantive appeals arose.