R v Secretary of State for the Home Department (No. 2)

Disclosure of documents from a determined asylum claim into private law family proceedings requires a fact-sensitive balancing exercise. The court must weigh the parties’ Convention and common-law fair-trial rights, the child’s welfare and rights, the confidentiality of the asylum process, risks to asylum seekers and third parties, and the wider public interest in preserving candour in asylum claims.

There is no presumption that exceptional circumstances are required. A pending asylum application ordinarily prevents disclosure to an alleged persecutor until that application is determined. Once determined, disclosure may nevertheless be ordered where relevant evidence is necessary for a fair fact-finding process and the competing risks can be controlled, including by redaction.

The applicant father sought disclosure of documents from the successful asylum claim of the first respondent mother for use in private law proceedings concerning their child. The proceedings involved allegations of domestic abuse and child sexual abuse which were also central to the mother’s asylum claim.

The court had previously formulated the legal principles governing disclosure in R v Secretary of State for the Home Department (Disclosure of Asylum Documents), [2019] EWHC 3147 (Fam). Permission to appeal that judgment had been refused as premature. The present issue was whether the identified asylum documents should be disclosed, and when disclosure could take place, given that the child’s asylum application remained pending.

1. The application for disclosure was determined in favour of the father. The documents identified at paragraph [33], subject to specified redactions, were ordered to be disclosed once the child’s pending asylum application had been determined.

2. Disclosure was governed by a balancing exercise. Relevant considerations included the rights of the parents, child and affected third parties; the child’s welfare; the confidentiality of the asylum documents; risks under Articles 2 and 3 of the ECHR; the father’s rights under Articles 6 and 8; and the wider public interest in maintaining confidence and candour in the asylum process.

3. The court was required to guard the father’s Article 6 right to a fair trial. A parent facing serious allegations is ordinarily entitled to see relevant material, including material that may undermine the case against him or material on which the other party may rely. Non-disclosure requires a compelling or strictly necessary justification.

4. The confidentiality of the asylum process attracted significant weight. It protected individual asylum seekers and supported full and frank disclosure to the Secretary of State. It did not, however, create a presumption of exceptionality or an absolute bar after the asylum claim had been determined.

5. The pending asylum application meant that implementation of disclosure had to await its determination. The court could nevertheless decide the disclosure issue in advance because the child’s application was based on the same material and a further hearing would be disproportionate.

6. The documents were relevant because they recorded the mother’s accounts, possible inconsistencies and corroborative material bearing on credibility and the allegations. The Secretary of State and the court could not anticipate all forensic uses that the father and his lawyers might make of the documents. Redaction adequately addressed the marginal relevance and potential risks concerning third parties.

7. The child’s best interests supported disclosure. The allegations had to be properly investigated so that the child could either be protected from a genuine risk or resume a relationship with the father if the allegations were not proved. The decision was confined to the particular facts and did not alter the general approach to asylum-document disclosure.

• High Court (Family Division): In R v Secretary of State for the Home Department (Disclosure of Asylum Documents), [2019] EWHC 3147 (Fam), the court formulated the governing principles but left the particular disclosure decision to be determined later.
• Court of Appeal: Permission to appeal the earlier judgment was refused by King LJ because the application was premature.
• High Court (Family Division): The present court ordered disclosure of specified documents after determination of the child’s asylum application, subject to redactions.