YSA v The Secretary of State for the Home Department

The Upper Tribunal may, under rule 14(1)(b), restrict publication of information identifying legal representatives. The power is exceptional and is exercised by applying the Re S balancing exercise. The tribunal must identify the competing article 8 and article 10 interests, scrutinise the prospective interference with each, apply proportionality, and give particular regard to freedom of expression under section 12 of the Human Rights Act 1998.

Open justice and fair reporting carry substantial weight. Genuine fears do not justify anonymity unless evidence shows a well-founded and material prospective interference with private or family life. The cab-rank rule does not transfer responsibility for its operation to the tribunal and cannot itself justify anonymity in an individual case.

Two barristers instructed for YSA in a pending immigration appeal applied to prevent publication of their identities as his representatives. They relied on hostile reporting of YSA’s litigation, concerns for themselves and their families, and the public importance of the cab-rank rule.

Associated Newspapers Ltd opposed the application. The Secretary of State made no submissions. The application required the Upper Tribunal to decide whether it had power to anonymise counsel and, if so, whether the proposed reporting restriction was necessary and proportionate in the light of the competing Convention rights and open justice.

1. Application refused. The Upper Tribunal had power under rule 14(1)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to prohibit publication of material likely to identify a person whom it considered should not be identified. “Person” was not confined to a person whose name had never been publicly available. The power could therefore extend to counsel.
2. The exercise of that power required the approach in Re S [2004] UKHL 47. The tribunal had to identify the prospective article 8 and article 10 interferences, focus intensely on their comparative importance, consider the justifications for restricting each right, and conduct the ultimate proportionality balance. Section 12 of the Human Rights Act 1998 required particular regard to the importance of freedom of expression and the public interest in publication.
3. The applicants’ fears were genuine, but the evidence did not establish a well-founded risk of specific violence or direct abuse arising from identification as YSA’s counsel. Previous representatives of YSA had been named without evidence of harm. Generalised hostile comment would not materially damage the applicants’ reputations, and criminal conduct could be addressed by ordinary legal protection.
4. The interference with press freedom was clear. Open justice and accurate reporting of proceedings in public carried considerable weight. The requested order was not necessary to protect the applicants and would disproportionately interfere with the Interested Party’s article 10 rights.
5. The cab-rank rule could not determine the application. Its maintenance and enforcement were matters for the Bar Standards Board and professional bodies, not the Tribunal. An anonymity order might be appropriate on sufficiently compelling individual facts, but genuine fear without a well-founded risk was insufficient.
6. The proposed form of order would also have been ineffective and objectionable. It would likely make the identities an open secret while restraining the press, and an order binding the world could not properly be released by a unilateral act of a person protected by it.

This was an application made in the Upper Tribunal during a pending immigration appeal. The substantive appeal was not determined in this decision.

A similar anonymity application was said to be before the First-tier Tribunal, but its outcome was not stated in the judgment.