Secretary of State for the Home Department v First-Tier Tribunal (Immigration and Asylum Chamber)

Litigation privilege applies to proceedings before the First-tier Tribunal where the proceedings are adversarial. It protects confidential communications made for the dominant purpose of actual or reasonably contemplated litigation, including communications between government officials acting for the same indivisible government entity.

Once privilege is established, it is not displaced by a balancing exercise against the human-rights issues in an immigration appeal. A tribunal must scrutinise a claim to privilege by the correct legal criteria. It may not draw adverse inferences merely because privileged material is withheld or because a party discloses a non-privileged part of a document pursuant to its duty of candour.

Judicial review of an interlocutory tribunal decision is exceptional. It is nevertheless available where a disclosure order contains a fundamental legal error and a later statutory appeal cannot restore confidentiality after compelled disclosure.

In a deportation appeal, the Secretary of State relied on evidence concerning conditions on return to Somaliland. During disclosure, she produced an email between Foreign and Commonwealth Office officials but redacted passages claimed to be protected by litigation privilege.

The First-tier Tribunal ordered disclosure of the unredacted email. It held that litigation privilege had no established application in that tribunal and could not override fundamental human-rights considerations. It also considered the evidence supporting the claim to privilege inconsistent.

The Secretary of State sought judicial review of that interlocutory order. The interested party argued that the application should not be entertained because a challenge could be brought after the final decision in the statutory appeal. The central questions were whether the Upper Tribunal should intervene at this stage and whether litigation privilege applied to the disputed communication.

1. Judicial review granted. The Upper Tribunal quashed the First-tier Tribunal’s disclosure order and directed it to decide the matter afresh. Although judicial review of an interlocutory tribunal decision is exceptional, the threshold was met. A later appeal after final disposal could not restore the Secretary of State’s confidentiality once privileged material had been compelled to be disclosed: [2018] UKUT 243 (IAC), paras [97]–[99].

2. Litigation privilege protects confidential communications between a client or lawyer and third parties which were created after litigation was reasonably contemplated and for its dominant purpose. The relevant litigation must be adversarial. Proceedings before the First-tier Tribunal in an immigration or human-rights appeal have that character: there are opposing parties, identified factual and legal disputes, and a binary outcome. Their administrative setting and the need to assess present risk do not make them inquisitorial: paras [38], [41]–[52], [84].

3. Legal professional privilege is a fundamental right. Where it exists, its protection is not subject to an individual balancing exercise against competing human-rights considerations. The fact that a case concerns human rights therefore does not prevent a party from claiming litigation privilege: paras [39]–[40], [55]–[60], [84].

4. The First-tier Tribunal’s scrutiny of the claim was legally flawed. It had to assess whether the evidence established the necessary criteria for privilege, not treat the disclosure of an unprivileged part of the email, or a perceived inconsistency about that disclosure, as a reason to reject privilege in the redacted passages. Partial disclosure to meet the duty of candour did not, without more, waive privilege in the remainder: paras [64]–[83], [95]–[96].

5. For the purpose of litigation privilege, the Secretary of State for the Home Department and the Foreign Secretary were not separate legal entities. Communications between officials of the two departments could therefore attract litigation privilege, provided the ordinary conditions were met: paras [87]–[94].

• Upper Tribunal (Immigration and Asylum Chamber): granted judicial review of the First-tier Tribunal’s interlocutory disclosure order, quashed it, and left the First-tier Tribunal to make a fresh decision.
• First-tier Tribunal (Immigration and Asylum Chamber): in the interested party’s deportation appeal, ordered disclosure of an unredacted email despite the Secretary of State’s claim of litigation privilege.