MSM v The Secretary of State for the Home Department

Appendix 1 Upper Tribunal (Immigration and Asylum Chamber) THE IMMIGRATION ACTS Heard at Field House Determination Promulgated On 29 May 2014 ………………………………… Before UPPER TRIBUNAL JUDGE DAWSON Between msm (ANONYMITY ORDER MADE) Appellant and THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Representation : For the Appellant: Mr S Chelvan instructed by Duncan Lewis & Co Solicitors For the Respondent: Mr S Walker, Senior Presenting Officer DE CISION AND DIRECTIONS

1. The appellant is a national of Somalia where he was born in October 1985. He has been granted permission to appeal the decision of First-tier Tribunal Judge Devittie who for reasons given in a determination following a hearing on 17 February 2014 dismissed the appeal against a notice of refusal of leave to enter dated 2 January 2014. The appellant had arrived in the United Kingdom on 4 October 2013 when he claimed asylum.

2. The appellant’s claim was based on a fear of harm from Al- Shabaab due to his activ i ties as a reporter/journalist. This was an occupation that he had taken up after pr e viously working as a teacher. In May 2011 he worked as a reporter for an indepen d ent radio station “ Sinba Radio”. Before coming to the United Kingdom the appellant had received threats from the Al- Shabaab via text messages which continued despite a change of number on his mobile phone. No action was taken by the authorities d e spite his employer having complained. The threats from the Al- Shabaab were r e ceived at the end of 2012 which pressurised him into quitting his job.

3. The respondent did not believe that the appellant had received such threats giving her reasons for doing so in a letter dated 2 January 2014. She accepted the appellant had worked as a reporter for Sinba Radio since 2011. She referred in the refusal letter to country evidence indicating that journalists and those who worked in the media were generally at risk in Somalia with the greatest risk for those working for state-owned media companies. She noted that Sinba Radio was an independent radio st a tion and was not linked in any way to the Somali government. She concluded that although working as a reporter may place the appellant at risk, it was not a necessary risk as he had transferrable skills as a teacher which would allow him to live and work peacefully in his home country. It was deemed therefore he was not at risk of persecution and did not qualify for asylum.

4. The judge also disbelieved the appellant’s claim of the threats from Al- Shabaab and turned his mind to whether the appellant would be at risk in Mogadishu on account of the fact that he had previously practised as a journalist there. He concluded that Al- Shabaab would certainly take an adverse interest if they had not done so before. He then turned to whether there was a reasonable degree of likelihood of future risk if the appellant on return resumed his profession as a journalist. He went on to o b serve at [15] of his determination, “It is an established principle of Refugee Law that protection is to be refused if it is shown that the person seeking asylum can reasonably be expected to take measures to avoid the threat of persecution upon his return to his country of origin. This principle finds expression, for example, in the requirement for an applicant to demonstrate that it would not be reasonable, or that it would be unduly harsh to expect him to relocate to an area where he would not face the real likelihood of persecution.”

5. The judge observed on the evidence before him that the appellant’s dedication to his profession was such that he would have no option but to continue to practice as a journalist. He did not accept this as truthful observing that he had indicated at inte r view that he chose to become a journalist in order to increase his income. The judge found that: “it has not been a part of his evidence that his decision to train as a jou r nalist was motivated by a conviction he held and that this was his vocation”.

6. The judge went on to observe that the principles in HJ ( Iran ) [2010] UKSC 31 did not apply to the circumstances of the case and expressed the following conclusions at [19] and [20] of his determination, “19. The distinction in this case is this. The appellant’s change of his profession by returning to teaching would not involve a violation of or a denial of a right enshrined in the Convention. The right to practise one’s profession does not enjoy protected status under the convention.

20. In the circumstances I find that to the extent that this appellant would be at risk merely on account of his continuing to practise as a journalist in Mogadishu, it would be reasonable to expect him to revert to teaching as a means of earning an income, and hence, avoid any risk that would befall him as a journalist at the hands of the Al- Shabaab .”

7. The judge went on to conclude that the appellant would not be at risk of indiscrim i nate violence were he to be returned.

8. The challenge to this decision is threefold. Having conceded that the appellant was a journalist from 2011 in Mogadishu and that journalists are “generally at risk” with no evidence of effective state protection, the appellant could show that he is a refugee. The tribunal had failed to engage with the point at all even though it had been a d dressed in the skeleton argument and in oral submissions.

9. The second ground argues that the respondent could not force modification (by changing occupation) as this has been unlawful since the earlier cases of Danian and Iftikhar Ahmed as further affirmed in HJ (Iran) and HG (Cameroon) v SSHD [2010] UKSC 31 . It is argued that if the appellant does voluntarily change his profession why would he do so. It would be in the face of a risk from an imputed political and an imputed religious opinion from Al- Shabaab . The appellant has a right not to share the views of Al- Shabaab and not to fear persecution on the basis that Al- Shabaab imposes views on him as to his conduct with reference to RT & Others v SSHD [2012] UKSC 38 . It is argued that the judge materially directed himself as to the law in failing to identify any legal authority since Danian which enables forced modification to evade persecution. On this basis enforced modification is unlawful and the appeal falls to be allowed on asylum grounds.

10. The third ground relates to the judge’s finding that the appellant had not faced ta r geting by Al- Shabaab . The positive aspects of the appellant’s case including consi s tency and prompt claim to asylum are relied on. The First-tier Tribunal had failed to identify what weight was attached to the appellant’s wife’s statement regarding the fate of the SIM card. In rejecting the police report, it is argued that the judge had not made a reasoned finding especially where the report had been made by the appe l lant’s employer whose evidence as to the appellant’s employment status with them had been accepted. It is argued that the approach of the First-tier Tribunal had ther e fore been irrational and unfair as the evidence had not been looked at in the round.

11. At the hearing Mr Chelvan supplemented this ground with argument that the judge had failed to take into account the undisputed evidence of the risks faced by journa l ists in Somalia in considering the threats specific to the appellant.

12. Before hearing submissions I made an order that the anonymity order made in the First-tier Tribunal should continue in the Upper Tribunal . Unless and until a Trib u nal or court directs otherwise the appellant is granted anonymity. This means that no report of these proceedings shall directly or indirectly identify him or any me m ber of his family. The direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to contempt of court procee d ings.

13. In the course of his lengthy and forceful submissions, Mr Chelvan followed the fo r mat of the grounds of challenge and referred to the skeleton argument on which he had relied before the First-tier Tribunal. In particular he maintained that the princ i ple that the appellant could be expected to modify his behaviour by changing his job to avoid persecution had no basis in law. In the case of the appellant, the concession by the Secretary of State meant that the appellant was a refugee because of the polit i cal opinion that would be imputed to him. He acknowledged that in the light of the concession he had not prepared evidence for the First-tier Tribunal dealing with the point whether persons who had previously been journalists would be at risk. This drew attention to exactly what the judge had concluded on the appellant’s intentions were he to return.

14. Mr Chelvan contended that with reference to [20] of the determination quoted above, that the appellant would continue to practice as a journalist in Mogadishu . Mr Walker submitted however that this paragraph could be read in two ways and there remained a question whether the judge found the appellant would be at risk were he to continue as a journalist notwithstanding his negative findings regarding any risk in the past. He accepted that the analysis particularly in [20] lacked clarity which made the findings unsafe and in his view there would need to be a total rehearing and even though there were strong credibility findings, none could be said to be safe. There would need to be a total rehearing. Mr Chelvan did not accept that the matter needed to be reheard relying on the concession which had not been withdrawn.

15. I observed to the parties that I would decide what findings of the judge could be pr e served and would decide the future conduct of the appeal in a reserved decision.

16. I begin my consideration with the quality of the fact-finding by the judge. I see no material error in the reasoning regarding the absence of threats from the Al- Shabaab before the appellant set out for the United Kingdom . The judge took into account all the evidence including the statement from the appellant’s wife. The judge did not accept the explanation as satisfactory why the appellant was unable to produce the mobile phone and it was rationally open to him to reject the explanation that the threatening messages had been deleted when the phone was put in for repair by his wife. The challenge in the third ground is no more than an evidential disagreement. The judge was clearly aware of the concession which he referred to on more than one occasion in the determination and he was aware of the country information indica t ing the risks that journalists faced. It was open to him to reject the employer’s ev i dence of reference of the matter to the police even though it had been accepted that the appellant had been employed as claimed. There is no question that the judge failed to take into account all the evidence in the round.

17. At [16] the judge did not accept as truthful that the appellant’s dedication to his pr o fession was such that he would have no option but to continue to practice as a jou r nalist on return. What is missing from the determination is a finding whether the appellant would continue as a journalist and it is unclear that the judge concluded the appellant would practice as such on return. There will need to be further ev i dence on this aspect. I do not consider that this will require the findings on the pre-flight threats to be disturbed and these can be preserved.

18. If it is found that the appellant will resume his occupation as a journalist on return, the issue will be whether it would be reasonable to expect him to change his career and to resume his earlier or another occupation.

19. This is an unusual case in that the Secretary of State concedes error by the First-tier Tribunal though for reasons different from those on which it has been challenged. The points at issue are however important. Were it not for the Secretary of State’s concessionary approach I would need some persuasion that there is much merit in the remaining grounds. This is however an adversarial jurisdiction and the parties have acceded to a course of action that was open to them.

20. Accordingly the decision of the First-tier Tribunal is set aside. It will be remade in the Upper Tribunal and the findings in [13] of the determination are to be preserved. The Tribunal will hear evidence on two aspects: ( i ) the appellant’s intentions so far as a career is concerned on return; (ii) whether former journalists who are no longer pursuing their occupation would nevertheless be in need of protection having regard to the Secretary of State’s concession and the current situation in Somalia. Signed Date 16 June 2014 Upper Tribunal Judge Dawson Appendix 2 Upper Tribunal (Immigration and Asylum Chamber) THE IMMIGRATION ACTS Heard at Field House, London Determination Promulgated On 24 March 2015 ………………………………… Before The President, The Hon. Mr Justice McCloskey and Upper Tribunal Judge Dawson Between MSM Appellant and SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Representation : Appellant: Mr S Chelvan and Ms V Hutton (both of Counsel), instructed by Duncan Lewis and Company Solicitors Respondent: Ms DJ Rhee (of Counsel), instructed by the Treasury Solicitor UNCHR (intervening): Ms M Demetriou QC, acting pro bono, instructed by Baker and McKenzie LLP ANONYMITY We maintain the anonymity order made previously under Rule 14 of the Tribunal Procedure ( Upper Tribunal ) Rules 2008. Unless the Upper Tribunal or a Court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the Appellant. This prohibition applies to, amongst others, all parties and their representatives. DECISION AND DIRECTIONS Introduction

1. This decision determines the following two issues: (a) the applications of the Appellant and the Respondent to have further evidence admitted; and (b) the important factual question of the Appellant’s future employment plans and intentions. The proceedings to date

2. The Appellant, who benefits from the protection of anonymity, is a national of Somalia , aged 29 years. This appeal has its origins in a decision made on behalf of the Secretary of State for the Home Department (the “ Secretary of State ”), dated 02 January 2014, whereby the Appellant’s application for asylum was refused. The Appellant appealed to the First-tier Tribunal (the “ FtT ”) which, by its determination promulgated on 18 March 2014, affirmed the decision of the Secretary of State. The ensuing grounds of appeal raised the three issues of the asserted risk to the Appellant as a member of a group, namely journalists in Somalia; the Appellant’s likely conduct on return to Somalia and, in particular, whether he would, or would be obliged to, transfer to a different profession; and the historical factual issue of whether the Appellant had been specifically targeted by the terrorist organisation “Al- Shabaab ” (“ AS ”). Permission to appeal was duly granted.

3. The error of law hearing before the Upper Tribunal was held on 29 May 2014. Upper Tribunal Judge Dawson held that the decision of the FtT was vitiated by error of law. In a commendably focused determination, the Judge, having recorded a limited concession by the Secretary of State’s representative, ruled, in substance, that the FtT had not properly directed itself in law in relation to the matters raised in the first two grounds of appeal: see especially [13] – [14] of the decision. The Judge found no merit in the third ground of appeal. We draw particular attention to the following passages: “ [17] What is missing from the determination is a finding whether the Appellant would continue as a journalist … There will need to be further evidence on this aspect …. [18] If it is found that the Appellant will resume his occupation as a journalist on return, the issue will be whether it would be reasonable to expect him to change his career and to resume his earlier [teaching] or another occupation. ” These passages shape the essential framework of the exercise of remaking the decision of the FtT which now falls to this Tribunal.

4. Upper Tribunal Judge Dawson expressly preserved a series of findings of fact contained in the determination of the FtT , namely: (ix) The Appellant worked as a journalist for Simba Radio in Somalia . (x) He did not at any stage come to the adverse attention of AS: his evidence to the contrary was a total fabrication. (xi) He did not receive any threats on his mobile phone from AS. (xii) None of his colleagues at the radio station was targeted or harmed before the Appellant left Mogadishu . (xiii) The Appellant’s wife did not relocate to a place of safety. (xiv) The Appellant’s sister was aware of his intention to travel to the United Kingdom . (xv) Little weight could be attributed to the documentary evidence on which the Appellant relied in support of his assertion that AS had threatened him. The preservation of these findings obviously has a bearing on the contours and outcome of the remaking exercise. The Appellant’s application to admit fresh evidence

5. The subject matter of rule 15 of the Tribunal Procedure ( Upper Tribunal ) Rules 2008 (the “ 2008 Rules ”) is “Evidence and Submissions”. Rule 15(2A) provides: “ In an asylum case or an immigration case – (a) If a party wishes the Upper Tribunal to consider evidence that was not before the First-tier Tribunal, that party must send or deliver a notice to the Upper Tribunal and any other party – ( i ) indicating the nature of the evidence; and (ii) explaining why it was not submitted to the First-tier Tribunal; and (b) When considering whether to admit evidence that was not before the First-tier Tribunal, the Upper Tribunal must have regard to whether there has been unreasonable delay in producing that evidence. ” This provision must be considered in conjunction with rule 15(2), whereby: “ The Upper Tribunal may – (a) admit evidence whether or not – ( i ) the evidence would be admissible in a civil trial in the United Kingdom ; or (ii) the evidence was available to a previous decision maker; or (b) exclude evidence that would otherwise be admissible where – ( i ) the evidence was not provided within the time allowed by a direction or a practice direction; (ii) the evidence was otherwise provided in a manner that did not comply with a direction or a practice direction; or (iii) it would otherwise be unfair to admit the evidence. ” In short, the Upper Tribunal is invested by rule 15(2A) with a discretionary power to admit evidence which was not placed before the FtT . In deciding whether to exercise this power, it should take into account rule 15(2) and must have regard to the overriding objective, per rule 2(3)(a).

6. The Applicant’s application for the admission of further evidence did not comply with rule 15(2A)(a). No acceptable explanation for this failure was proffered. The hearing suffered delay and disruption in consequence. We deprecate this failure to comply with the Rules. Fortunately for the Applicant, the provisions of rule 7 can be invoked in these circumstances and, with some reluctance, we do so.

7. The hearing date upon which this application unexpectedly emerged had not been allocated for this purpose and this was compounded by the lack of proper advance notice in compliance with the Rules. When one considers the meticulous case management of this appeal undertaken by Upper Tribunal Judge Dawson since the setting aside of the FtT’s decision in June 2014, the eleventh hour developments in these proceedings must be condemned as inexcusable. Matters were exacerbated by the unacceptable failure of the Appellant’s legal representatives to disclose to either the Tribunal or the Respondent’s representatives, throughout the case management phase, the possibility of developments of this kind. The knowledge possessed by the Appellant’s representatives was not shared. This was entirely unacceptable in the circumstances of this appeal. It is universally recognised that the late and unexpected introduction of evidence in whatever form is incompatible with the principles which govern contemporary litigation: see O’Sullivan v Herdmans [1987] 3 ALL ER 129, per Lord Mackay of Clashfern at 137. The related principle of litigation cards face up is now one of some antiquity.

8. This duties on representatives imposed by these principles apply with particular force to issues relating to the acquisition of, disclosure of and reliance upon documents by any party. The non-disclosure of another, parallel process, under the Data Protection Act 1998 , throughout a protracted period, upon which we shall elaborate presently, placed the hearing date in serious jeopardy, to the knowledge of the Appellant’s representatives and no one else . Disarray resulted and a substantial quantity of valuable court time was wasted. This is intolerable. We shall consider at a later stage of these proceedings whether an order for wasted costs under section 29(4) of the Tribunals, Courts and Enforcement Act 2007 or Rule 10(3) of the 2008 Rules, or any other order, is appropriate.

9. The Tribunal’s attempts to bring form and focus to this application during the hearing achieved limited success. The documents which the Applicant wishes to have admitted as fresh evidence are a series of materials provided to the Applicant’s solicitors under cover of a letter dated 06 March 2015 from UK Visas and Immigration (hereinafter “ UKVI ”), an agency which is described as “ an operational command of the Home Office ”. These documents were provided in response to a “subject access request” under the provisions of the Data Protection Act 1998 (the “ 1998 Act ”). While the letter is dated 06 March 2015, the attachments were not brought to the attention of the Tribunal until 23 March 2015, the eve of hearing. Furthermore, the letter makes clear that the request was made by a letter sent as long ago as 25 November 2014. The significance of this is that during the period of almost four months preceding the hearing which elapsed thereafter and notwithstanding that case management reviews were conducted by the Tribunal, the existence of this parallel process was concealed from all. This is quite unacceptable.

10. The documents disclosed were presented to the Tribunal in two groups. The submissions of Counsel made no reference whatsoever to the larger bundle which, upon a cursory perusal, consists of materials generated by the Applicant’s application for asylum and the two ensuing appeals and is largely duplication. In passing, we observe that the costs involved in preparing and reproducing this large, redundant bundle are unlikely to be recoverable, come what may. It seems to us a paradigm illustration of the blizzard mentality, regrettably so prevalent in many areas of contemporary litigation.

11. In advancing the application under Rule 15(2A), Counsel referred only to a discrete collection of documents assembled in a small booklet. The context in which the Applicant’s belated application unfolded is shaped by two main elements. The first of these is a passage contained in the Respondent’s decision letter dated 02 January 2014: “ [46] The above information indicates that journalists and those who work in the media are generally at risk in Somalia , with those working for state-owned media companies at the greatest risk. It is noted that Simba Radio is an independent radio station however and is not linked in any way to the Somali Government …. [47] It is also noted that you worked as a reporter for Simba Radio from May 2011 until September 2013 …. Before this you worked as a teacher for three years, teaching mathematics and Somali language ….. [48] It is therefore concluded that although working as a reporter may place you at risk in Somalia, it is not a necessary risk, as you have transferable skills as a teacher which would allow you to live and work peacefully in your home country. When this was put to you in interview the only reason you cited for not pursuing a career as a teacher was that the salary is less than that of a reporter. ” The “ above information ” is an excerpt from the Home Office publication entitled “Country Information and Guidance: Somalia ” (2013). Drawing on identified sources, this report contains the following passages: “ Despite the violence, dozens of radio stations aligned with particular factions continued to broadcast in Mogadishu and in other parts of the country. The TFG [Transitional Government] continued to support Radio Mogadishu …… This includes journalists from popular stations …. who have found it challenging to operate under [AS] …… Journalists were subjected to violence, harassment, arrest and detention in all regions. The National Union of Somali Journalists reported 18 journalists were killed across the country in 2012 and 14 were wounded in Mogadishu … This was the deadliest year on record for the country’s journalists ….. Concerning the big number of assassinated journalists, it is not justified to say that [AS] is targeting this group specifically, according to the international NGO(B) Mogadishu . [AS] has taken responsibility for the killings of only journalists from the state run Radio Mogadishu . Who is behind the rest of the killings of journalists is not clear. In this connection it should be mentioned that Shabelle Media has had a conflict for a long time with the Government. It was added that most journalists will not report negatively about [AS].” [Emphasis added.] In its determination, the FtT stated, at [15]: “ It is conceded by the Respondent that in general journalists may be at risk in Mogadishu . ” We consider it clear that the Judge was not here referring to a concession made by the Respondent’s representative at the hearing. He was, rather, adverting to those parts of the decision letter reproduced above.

12. Sequentially, the next material development to which we refer is the written submission of Ms Rhee, Counsel for the Respondent, dated 12 November 2014, provided in response to the Upper Tribunal ’s directions. Having referred to [46] of the decision letter, the submission summarises the Respondent’s position thus: “ [10] First , the Secretary of State was not thereby purporting to accept that all practising journalists in Somalia are necessarily at risk. The Secretary of State submits that this is evidence d not only from the passages of the COIS Report …. which do not support such a wide concession, but also from the fact that she then went on to state ……….. that ‘working as a reporter may place [the Appellant] at risk’ [ emphasis added ]. That is, her decision was that in any event an individualised risk assessment would need to be undertaken, albeit against general background factors. ….. [15] Second , if and to the extent that paragraph [46] of the Secretary of State’s refusal letter is considered to contain a concession that all practising journalists in Somalia are necessarily at risk, then the Secretary of State confirms that she does indeed seek to withdraw such concession. Such a concession is neither supported by the information in the COIS Report … nor …. the information in the current CIG Report (April 2014). Whilst both reports indicate that there are known instances of journalists having been targeted, the evidential picture falls far short of establishing that all journalists are generally at risk, let alone journalists who do not work for state owed media companies (such as Simba Radio). ” Ms Rhee’s written submission further contains the proposition that the question of risk will be a matter for adjudication by the Tribunal based on all available evidence, including that postdating the decision letter, continuing: “ The Secretary of State’s position is that it is therefore somewhat artificial to seek to isolate a concession in respect of the evidential position pertaining at a given moment in time, as in any event the position would need to be considered against the most up to date and relevant evidence. ” Finally, the submission discloses the Respondent’s wish to withdraw the “ concession ” if necessary.

13. The gist of the argument advanced to the Tribunal by Counsel for the Appellant was that to permit the Respondent to withdraw the “ concession ” would be to condone an act committed in bad faith and that withdrawal should not therefore be permitted. In the skeleton argument it is contended: “ The Appellant therefore submits that on the balance of probabilities he can prove that the Respondent has acted in bad faith in withdrawing the concession as she has not acted reasonably, with good faith and upon lawful and relevant grounds of public interest. ” The Appellant’s case is that bad faith on the part of the Respondent is evidenced by certain of the documents yielded by the subject access request. It was submitted, in particular, that these documents support the contention that the Respondent’s instructions upon which Ms Rhee’s aforementioned submission of November 2014 was evidently based were tainted by bad faith. The Tribunal was referred to an email chain preceding Ms Rhee’s submission. We consider that there are two key items in this sequence, the first and the last. This sequence of communications begins with a four page document generated in October 2014. One deduces readily that the author of this document is the Senior Presenting Officer who had represented the Respondent at a case management hearing held on 15 October 2014, resulting in a direction from the Tribunal to the Respondent to provide a written submission on the issue of the “ concession ”. It is abundantly clear that this document takes the form of instructions prepared by the client for the benefit of the Respondent’s solicitor and Counsel and for the purpose of seeking legal advice. The ensuing email communications take their hue and colour from this starting point. Some of the electronic communications generated during this phase are routi ne and might not, individually, attract privilege. This, however, is to be contrasted with the lengthy opening communication (summarised above) and a further electronic communication, dated 04 November 2014, which marks the end of this discrete phase. This is clearly a request by the Treasury Solicitor for further instructions from the Respondent, triggered by Counsel’s request (quoted therein) for clarification of the Respondent’s instructions concerning the basis upon which withdrawal of the “ concession ” should be advanced. The sequence of communications ends here: there is no response to the solicitor’s request in the materials provided to the Tribunal.

14. The genesis of the Appellant’s quest to establish that the Respondent’s wish to withdraw the “ concession ” is precluded by bad faith is a passage in the decision of the Court of Appeal in NR (Jamaica) – v – SSHD [2009] EWCA Civ 856, the context whereof was a concession made before the first instance tribunal by the Respondent’s representative that if the Appellant was a lesbian, she would be at real risk upon return to her country of origin. The Court of Appeal espoused the approach which it had previously taken in Davoodipanah – v – SSHD [2004] EWCA Civ 106, where Kennedy LJ stated at [22]: “ It is clear from the authorities that where a concession has been made before an adjudicator by either party the Tribunal can allow the concession to be withdrawn if it considers that there is good reason in all the circumstances to take that course …. What the Tribunal must do is to try to obtain a fair and just result. In the absence of prejudice, if a presenting officer has made a concession which appears in retrospect to be a concession which he should not have made, then justice will require that the Secretary of State be allowed to withdraw that concession before the Tribunal. ” Pausing at this juncture, the applicability of this statement to the “ concession ” contained in the decision letter is not disputed on behalf of the Appellant. In NR ( Jamaica ) , Goldring LJ, having quoted the above passage, continued, at [12]: “ …. The Tribunal may in its discretion permit a concession to be withdrawn if in its view there is good reason in all the circumstances for that course to be taken. Its discretion is wide. Its exercise will depend on the particular circumstances of the case before it. Prejudice to the appellant is a significant feature. So is its absence. Its absence does not however mean that an application to withdraw a concession will invariably be granted. Bad faith will almost certainly be fatal to an application to withdraw a concession. In the final analysis, what is important is that as a result of the exercise of its discretion the Tribunal is enabled to decide the real areas of dispute on their merits so as to reach a result which is just both to the Appellant and the Secretary of State. ” We have highlighted the sentence on which the Appellant’s argument rests.

15. The question for the Tribunal, therefore, is whether the Respondent is acting in bad faith in seeking to withdraw the “ concession ” in the decision letter. We have consistently referred to the “ concession ” in italics and inverted commas because of the terms in which it is phrased and the evidence upon which it is evidently based. We do not readily identify black and white in either the supporting evidence or the formulation of the “ concession ”. Rather, there are several shades of grey. The Respondent’s submission is that the words in question should be construed in a certain way, as set out in [11] above. We consider this a respectable argument. The meaning of the words in any document is a question of law for the court conducting a dispassionate, detached and objective exercise taking into account the full context. This we consider to be orthodox doctrine and no authority to the contrary was cited. Furthermore, we consider that the Upper Tribunal is not in any event bound by this kind of “ concession ” (if it be such) in proceedings of this nature. The Tribunal is the ultimate arbiter of all issues, including the key issue of future risk to the Appellant in certain eventualities, having acquitted its duty to consider all material evidence, including the “concession”, as construed by the Tribunal in due course, in the round.

16. On the assumption that the Appellant’s construction of the words under scrutiny is legally correct, we consider that this application must fail because the Appellant has not discharged the burden of establishing bad faith in the manner asserted. In contemporary public law, bad faith and improper motive are sometimes interchangeable terms, or concepts. Fundamentally, both denote the misuse of power. See, generally, De Smith’s Judicial Review (7 th Edition), para 5 – 087. In SCA – v – Minister of Immigration [2002] FCAFC, bad faith is defined as “ a lack of an honest or genuine attempt to undertake the task and involves a personal attack on the honesty of the decision maker ”: see [19]. The authors of De Smith continue, at paragraph 5 – 089: “ Bad faith is a serious allegation which attracts a heavy burden of proof. ” In practice, bad faith typically denotes conduct on the part of a public official which is dishonest. It “always involves a grave charge”: per Megaw LJ in Cannock Chase District Council – v – Kelly [1978] 1 WLR 1 at 6. Furthermore, this serious allegation requires, in every case, ample advance notice and detailed particularisation: the present case is a worrying illustration of the neglect of these imperatives.

17. In one of the earlier authoritative judicial formulations, it was held that the onus entails establishing that the public authority was intent upon achieving an improper purpose “ under colour and pretence ” of a proper purpose: per Lord MacNaghten in Westminster Corporation – v – London and North Western Railway [1905] AC 426 , at 430.

18. The Appellant invites the Tribunal to infer bad faith from the materials highlighted and summarised above. We conclude without hesitation that the onus of proving bad faith has not been discharged by the Appellant. We consider that the materials fall well short of being tainted in the manner asserted. In the first of the two main electronic communications, it is evident that the presenting officer concerned was simply expressing a view about the timing of the production of certain documents. Crucially, the words used do not, expressly or inferentially, evince an intention to conceal material documents. Rather, the author of the communication was simply mooting the possibility of disclosing them at a later stage of the proceedings. Furthermore, this unfolded in a context where the author had not received legal advice and was preparing instructions which would enable such advice to be provided. At its worst, this discloses a questionable tactic. As regards the second main electronic communication, we find nothing untoward. This, in our view, reveals that the Respondent’s representatives were giving conscientious and serious consideration to an issue which was, on any showing, a challenging one. Importantly, it is clear that the representatives had been equipped by the Respondent with the most recent of the relevant reports (CIG, April 2014). There can be no suggestion that the Respondent was withholding anything of relevance from its lawyers. Nor is there any evidence of any misleading, incomplete or dishonest response by any of the Respondent’s officials to the lawyers’ request for instructions. Accordingly, whatever the meaning to be placed on the relevant passages in the decision letter, we conclude that the Respondent was not acting in bad faith in the respects alleged.

19. The question of whether the Respondent is legally entitled to the return of some of the documents provided in response to the subject access request is, in our view, a quite separate one, notwithstanding that it was conflated with the bad faith issue in the submissions of Counsel. The test which is engaged has been articulated in a number of decided cases and is expressed with particular clarity in the judgment of Peter Gibson LJ in Breeze – v – John Stacy and Sons Limited [1999] WL 477354, at page 6 of the transcript: “ There is, on the authorities, a two stage test. First, was it evident to the solicitor receiving the privileged documents that a mistake had been made? If so, the solicitor is expected to return the documents. If it was no so evident would it have been obvious to the hypothetical reasonable solicitor that disclosure had occurred as a result of the mistake? ” The wider principles expounded in Phipson on Evidence (17 th Edition), paragraph 26 – 64, do not apply. Rather, the narrower Breeze principle, summarised in paragraph 26 – 65, is engaged in the present context.

20. In applying this principle to the instant case, we have considered the evidence contained in the two witness statements of the Appellant’s solicitor, which were supplemented by her oral testimony to the Tribunal. One of the exhibits to these statements confirms that immediately upon discovering that certain materials were contained in the Appellant’s bundles for hearing, the Respondent’s solicitor communicated, in writing, a contention that this is privileged material which had been provided to the Appellant’s solicitors in error and that privilege had not been waived. The evidence of the Appellant’s solicitor informs, but is not determinative of, our evaluation of the “ hypothetical reasonable solicitor ” test. Having considered this evidence with care, we do not find it persuasive. We consider that it should have been abundantly clear to the hypothetical reasonable solicitor that the two major documents examined and summarised above were privileged (which the solicitor did not dispute), had been generated in the context and for the purpose of these proceedings (also not disputed) and, taking into account particularly the high level of importance which the discrete issue of the “ concession ” had assumed, had been provided in error. The hypothetical solicitor would have been cognisant of the full background, including the appeal proceedings, the identity of the Respondent’s Counsel, the content of the latter’s submission of November 2014 and the evident fact that the provider of the documents, UKVI, was acting without reference to and unbeknownst to the Respondent’s litigation representatives. The fact that one arm did not know what the other was doing would in our estimation have been obvious. Evaluating all the evidence objectively, we consider that the error was a glaring one. This analysis is not undermined in any way by the consideration that some of the disclosed documents were edited by masking, not least because the accompanying letter of 06 March 2015 expressly stated that this measure had been taken – “ …. because Home Office records sometimes include other information that we are not able to release to you under the Data Protection Act 1998 (for example, another person’s data), so this is blacked out. ” To summarise, we are satisfied that the hypothetical reasonable solicitor would have realised quickly that an unintended windfall had materialised in consequence of unmistakeable oversight, inadvertence or error.

21. Accordingly, we refuse the Appellant’s application under Rule 15(2A). We shall decide the issue of future risk to the Appellant by reference to all relevant and available evidence in the round, including the Respondent’s decision letter and our construction of its terms.

22. Henceforth, we consider that, as a general rule, disclosure of documents should be pursued within the ambit and framework of the legal proceedings in question, applying the governing procedural regime. Parallel processes are to be firmly discouraged since, as the present case demonstrates, they are inimical to the important values of transparency, efficiency and expedition and have the potential to give rise to ambush, disruption and delay. They may also invite the condemnation of sharp practice. The Respondent’s Fresh Evidence Application

23. This application also was not made in accordance with Rule 15(2A)(a) of the 2008 Rules. The explanation provided, based on the timing of receipt of the documents by the Respondent’s representatives, was flimsy. However, no objection to the admission of these documents was articulated on behalf of the Appellant and, in particular, no prejudice of any kind was asserted. The key consideration in determining this application is the nature of the documents. On a brief perusal, they all have a direct bearing on the issue of future risk to the Appellant and, hence, are plainly relevant. The weight to be attached to them individually is a matter upon which we do not pronounce at this stage. We accede to the Respondent’s application. The Appellant’s Future Employment

24. Although we have not had submissions on the oral testimony of the Appellant and his supporting witness, in the light of the limited cross examination and his responses to our questions, we are able to make findings on one of the core issues that we are required to determine, namely: what is the Appellant’s employment likely to be if he returns to Mogadishu?

25. It weighs against the Appellant that he was untruthful before the FtT about the adverse interest in him of AS. It is also a matter of concern that the evidence he gave in English before us about his past work in Somalia and his future ambitions contained substantially greater detail than that in his statement dated 04 March 2015. This may reflect, however, on the quality of statement compilation by his solicitors, which is surprising in the light of the direction that his statement should stand as his evidence in chief. We give the Appellant the benefit of the doubt on this issue.

26. The Appellant gave his answers to questions without hesitation in a lucid and confident way. He is articulate in English and is clearly well educated. We consider that the SSHD was correct to accept that he was involved in journalism before he left Mogadishu . So far as his ambitions for the future are concerned, we note the evidence about the peripheral role (giving due weight to the restrictions on employment) that the Appellant has played in the United Kingdom with Somalia associated TV broadcasters. On balance, we find it reasonably likely that the Appellant will seek to work with broadcasters or the information media on return and, further, will secure employment in this sector. Noting the absence of evidence of any published articles by the Appellant, we do not consider that he has in the past been an investigative journalist; in reality, his ambition appears to be more akin to being a researcher and presenter, the latter reflecting the role that he probably had before coming to the United Kingdom. As a probability, his journalistic employment in Somalia was of this genre . Following careful reflection on the factors adverse to the Appellant’s veracity, we consider it unlikely that he will seek to resume his pre-journalism career as a teacher.

27. In summary, therefore, we find as a matter of probability that the Appellant will, if returned, continue to pursue his interest in a career in broadcasting and media related activity. This will include a creative role in terms of research and writing for broadcasts. To this extent there will be a journalistic element. We consider further that he is likely to secure employment in this field. Whether he will be seen or perceived as a person who may attract adverse attention and interest amounting to persecution in contravention of the Refugee Convention is a matter to be determined. OVERALL CONCLUSION

28. Giving effect to the analysis and discrete findings and conclusions above: (a) The Appellant’s application for the admission of fresh evidence under Rule 15(2A) of the 2008 Rules is refused. (b) The Respondent’s corresponding application is granted. (c) We find that if he returns to Mogodishu the Appellant is likely to be actively employed as a researcher, writer or presenter in the broadcasting sector. DIRECTIONS

29. We make the following directions: ( i ) As previously intimated to the parties, this appeal will be relisted at 10.00 hours on 28 April 2015, for a half day. (ii) All three parties will revise their written submissions, to reflect this ruling, with appropriate deletions, additions and highlighting, based on the existing documents, by 23 April 2015 at latest. (iii) If the Appellant’s representatives wish to augment their written submissions, one hour will be allocated for this purpose. (iv) Similarly, one hour is allocated to the Respondent’s representatives. (v) Similarly, we allocate 45 minutes to the intervening party, UNCHR. (vi) Any application for a wasted costs order will be made in writing by 20 April 2015, with any response to be made in writing by 27 April 2015. (vi) Liberty to apply on two clear days notice to the other parties. (vii) These directions may be modified or supplemented as the Upper Tribunal considers fit. Signed: THE HON. MR JUSTICE MCCLOSKEY PRESIDENT OF THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER Date: 31 March 2015