News Group Newspapers Ltd v Selami Cokaj

Anonymity is an exception to open justice. Where Articles 8 and 10 of the European Convention on Human Rights conflict, the tribunal must conduct a fact-sensitive proportionality assessment. Existing public identification, the public interest in reporting serious misconduct, and the absence of reliable evidence of substantial harm may justify disclosure despite unpleasant consequences for family members.

A tribunal retains jurisdiction to determine open-justice issues after its substantive appellate function has ended. A higher tribunal may make or discharge an anonymity order with effect throughout proceedings under section 82 of the Nationality, Immigration and Asylum Act 2002. A claim that disclosure would breach Articles 2 or 3 requires an objectively well-founded, real and immediate risk.

News Group Newspapers Ltd applied to discharge anonymity orders made in immigration and human-rights proceedings concerning Selami Cokaj. The orders had protected him and his family while the Upper Tribunal considered his protection claim and re-made the Article 8 aspect of his appeal.

The applicant relied on prior press reporting which identified Cokaj and described his conviction and immigration history. Cokaj relied on alleged risks to his children and on asserted risks of kidnapping or blood-feud harm if publicity followed him to Albania. He had sought permission to appeal only the Article 8 decision, reported as [2020] UKUT 00187 (IAC).

The Tribunal had to decide whether it retained jurisdiction after disposing of the appeal, whether it was the appropriate forum, and whether continued anonymity was necessary when open justice and Article 10 rights were weighed against Articles 2, 3 and 8 rights.

1. Application granted. The Upper Tribunal discharged its anonymity orders, subject to a stay intended to allow Cokaj to seek relief from the Court of Appeal or challenge the decision.

2. The Tribunal retained jurisdiction to decide an open-justice application after concluding the substantive appeal. Dring v Cape Intermediate Holdings Ltd established that courts and tribunals retain inherent jurisdiction over access and open-justice issues, unless statute or procedural rules provide otherwise.

3. An Upper Tribunal anonymity order made under rule 14 could extend to the entirety of proceedings under section 82 of the Nationality, Immigration and Asylum Act 2002, including earlier First-tier Tribunal proceedings. A higher tribunal or court could also discharge such an order expressly or by necessary implication. The Tribunal nevertheless remained the appropriate forum because it held the relevant evidence and the Court of Appeal might not otherwise address anonymity if permission were refused.

4. Open justice was the starting point. Applying the Article 8/Article 10 balancing approach, the Tribunal found a strong public interest in identifying a convicted murderer who had persistently used false identities, re-entered the United Kingdom unlawfully and made dishonest claims. Recent reporting had already placed his identity and background substantially in the public domain.

5. There was no objectively supported, real and immediate risk of Article 2 or 3 harm from disclosure. The asserted kidnapping and blood-feud risks lacked objective evidence and were undermined by the Tribunal’s earlier credibility findings and the children’s uneventful travel to Albania.

6. The evidence did not establish significant or lasting Article 8 harm to the children from the earlier publicity. Further publicity would be unpleasant, but that interference was proportionate to give effect to Article 10 and open justice. The ancillary decision was an excluded decision under article 2(n) of the Appeals (Excluded Decisions) Order 2009, challengeable only by judicial review.

• Upper Tribunal (Immigration and Asylum Chamber): In the substantive proceedings, the Tribunal re-made the Article 8 aspect of Cokaj’s appeal in [2020] UKUT 00187 (IAC). He sought permission to appeal that Article 8 decision.

• Upper Tribunal (Immigration and Asylum Chamber): In this decision, the Tribunal granted News Group Newspapers Ltd’s application to lift the anonymity orders, subject to a stay.

• Court of Appeal: After this decision, permission to appeal the substantive Upper Tribunal decision was refused on 19 February 2021. The addendum records that the Court of Appeal did not interfere with the temporary continuation of anonymity.

• High Court: The addendum records that permission to judicially review the decision lifting anonymity was refused on 22 June 2021, and the interim stay later expired.