Last week the Upper Tribunal (Immigration and Asylum Chamber) handed down an important judgment on litigation privilege in immigration appeals.
In R (Secretary of State for the Home Department) v First-tier Tribunal (Immigration and Asylum Chamber), the Upper Tribunal quashed an interlocutory order of the FTT, following an application for judicial review by the Secretary of State.
The FTT had ordered the Secretary of State to disclose redacted parts of an email between to FCO officials, contrary to the Secretary of State’s submission that litigation privilege attached to the redacted part.
The UT quashed this order on the basis that:
- Contrary to the FTT’s finding, immigration appeals are adversarial and litigation privilege does attract in the FTT(IAC). In particular, litigation privilege attracts notwithstanding the fact that fundamental human rights are being considered.
- The FTT failed to adopt the correct approach to the Secretary of State’s witness statement in support of the redactions.
- For the purpose of assessing whether litigation privilege attracts in immigration appeals, the Secretary of State for the Home Department and Secretary of State for Foreign and Commonwealth Affairs were one and the same.
- An appeal to the UT after conclusion of the immigration appeal was not a suitable remedy in the circumstances of this case.
This case is a welcome affirmation to all parties to immigration appeals that litigation privilege may attract. It is also noteworthy for its discussion on the broader point of how the duty of candour interacts with privileged documents.
Carine Patry and Matthew Henderson appeared for the Secretary of State for the Home Department.