R v Secretary of State for the Home Department (Disclosure of Asylum Records)

Disclosure of asylum material into private-law children proceedings is governed by a fact-sensitive balancing exercise. The court must weigh asylum confidentiality and the public interest in maintaining confidence in the asylum system against the Convention rights of the parties, affected third parties and the child, together with the need for a fair trial. There is no presumption that disclosure is permissible only in exceptional cases. The prohibition on disclosure to an alleged persecutor during examination of a pending asylum claim does not create an equivalent rule after the claim has been determined. Any restriction must be strictly necessary and no wider than required. FPR 2010 r 21.3 provides the appropriate procedural framework, and the court may require production of the material before deciding whether disclosure or inspection should occur.

The father sought disclosure and inspection of documents from the mother’s successful asylum claim for use in private-law proceedings under Children Act 1989 s 8. The documents concerned allegations of domestic violence and sexual abuse which were also the subject of a fact-finding hearing in the family proceedings. The Secretary of State for the Home Department intervened, and the mother opposed disclosure on grounds of confidentiality, privacy and the public interest in protecting the asylum system.

A previous refusal of disclosure in related Hague Convention proceedings did not determine the issue because the present proceedings involved a different forensic context and required findings of fact on the balance of probabilities. The central issues were the applicable balancing exercise and the proper procedure for deciding whether the asylum material should be disclosed or inspected.

1. Outcome and governing principles. The court directed the mother to produce the disputed asylum documents for the court under FPR 2010 r 21.3(6)(a), with any supplementary submissions, and reserved the decision on whether some or all of the documents should be disclosed and inspected. Disclosure of asylum documents into Children Act proceedings is possible in an appropriate case.
2. Confidentiality attaches at common law to information supplied in support of an asylum claim where it was received on an assurance that it would remain confidential and be disclosed only where legally required. There is also a compelling public interest in protecting that confidentiality and public confidence in the asylum process. R v McGeough [2015] 1 WLR 4612 was distinguishable because it concerned Swedish law and did not determine the effect of domestic law where asylum information was not publicly disclosed after the claim ended.
3. The court must balance the rights of the refugee and affected third parties under Arts 2, 3 and 8 of the ECHR, the disclosure-seeker’s rights under Arts 6 and 8, the child’s Art 8 rights, the confidential nature of the material and the wider public interest. No right has automatic priority. The Art 6 right to a fair trial carries very great weight, but the right to inspect documents is not itself determinative.
4. Any refusal or restriction must be strictly necessary. The court must rigorously examine the feared harm and consider safeguards such as redaction, anonymity or confidentiality rings. There is no presumption of exceptionality, following F v M, and a prior immigration finding that the disclosure-seeker was an alleged persecutor does not automatically determine the balance.
5. Paragraph 339IA of the Immigration Rules and art 22 of Directive 2005/85/EC make disclosure to an alleged persecutor especially difficult while an asylum claim is pending. After the claim has been determined, whether successfully or unsuccessfully, the issue is governed by the balancing exercise and the particular facts.
6. FPR 2010 r 21.3 provides the appropriate procedure. It distinguishes withholding disclosure from withholding inspection, permits evidence and production of the documents to the court, and allows representations by persons including the Secretary of State. The court could not fairly decide this application abstractly because the material was prima facie relevant and the family court’s fact-finding exercise differed from the immigration assessment.

First-instance decision. The judgment records an earlier related decision by Her Honour Judge Corbett, refusing disclosure in Hague Convention proceedings, but the present court treated the changed procedural and forensic context as requiring the issue to be considered afresh.