The Home Office’s duty of disclosure in Tribunal appeals

In BH (policies/information: SoS’s duties) Iraq [2020] UKUT 00189 (IAC), the Upper Tribunal (Immigration and Asylum Chamber) held that the Secretary of State (“SSHD”) had a duty to disclose to the Tribunal, policies which might undermine her case against an appellant, and similarly adverse information which was not in the public domain.

The Appellant in this case was an Iraqi Kurd seeking asylum. From 2007 onwards, he had asylum claims refused and a previous appeal dismissed. A fresh claim and ensuing refusal in 2018 gave rise to the instant case. The First-tier Tribunal (“FTT”) determined that the Appellant could safely return to Iraq and dismissed his appeal.

When appealing to the Upper Tribunal, the Appellant argued that the SSHD had not presented for consideration to the FTT judge, the latest Country Policy and Information Note on Iraq, namely: (Iraq: Security and humanitarian situation (version 5.0, November 2018)) contrary to the principle in UB (Sri Lanka) v SSHD [2017] EWCA Civ 85. This, the Appellant submitted, resulted in the hearing being unfair. 

The Upper Tribunal held as follows.  Adverse documents which contained policy had to be disclosed, notwithstanding that they were in the public domain (the SSHD was expected to have knowledge of all current immigration policy, whereas a Tribunal Judge was not). However, adverse documents which would mislead the Tribunal if not disclosed, but which did not contain policy, had to be disclosed only if they were not in the public domain. Country Policy Information Notes in the public domain containing adverse information did not therefore have to be disclosed. The information in UB Sri Lanka was in the public domain, however it essentially had the character of a policy.

In the Appellant’s case, the Country Policy and Information Note in question did not have the character of a policy and, as it was already in the public domain, did not have to be disclosed to the Tribunal. The appeal was therefore dismissed. The Upper Tribunal noted that the SSHD’s duty to not mislead applied in protection appeals, but that such a duty could be extended to all Immigration Appeals.

The Upper Tribunal’s Decision in this case echoes its decision in Nimo (appeals: duty of disclosure) [2020] UKUT 88, in which it held that although there was no general duty of disclosure in an immigration appeal, the SSHD had an obligation to disclose documents where to not do so would mislead the Tribunal.

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