Case comment: R v McGeough  UKSC 62
22 Thursday Oct 2015
The need for candour in an application for asylum does not rise to a requirement that the information disclosed by the asylum seeker will be kept in confidence in all circumstances. The Supreme Court held that information provided by asylum seekers may not be disclosed to those who have persecuted the asylum seeker in the course of the consideration of any asylum application and should not be disclosed if there is a continuing legitimate expectation or obligation of confidence.
However the Supreme Court concluded that there was nothing preventing the disclosure of information provided in the course of a failed application for asylum where the relevant national law provided that the information would in those circumstances enter the public domain.
In Mr McGeough’s case he had provided information in the course of a failed application for asylum made in Sweden that revealed his membership of the Irish Republican Army (the IRA). Under Swedish law Mr McGeough would have understood that material provided in the asylum process would enter the public domain and might therefore be disclosed to the law enforcement authorities in Northern Ireland if his application failed. His application did fail and there was held to be no unfairness in the Northern Irish courts admitting the evidence of what Mr McGeough had said in the course of his criminal trial for membership of a proscribed organisation (the IRA).
Reliance was placed by Mr McGeough on article 22 of the Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in member states for granting and withdrawing refugee status (the Procedures Directive) which provides: “Collection of information on individual cases. For the purposes of examining individual cases, member states shall not: (a) directly disclose information regarding individual applications for asylum, or the fact that an application has been made, to the alleged actor(s) of persecution of the applicant for asylum; (b) obtain any information from the alleged actor(s) of persecution in a manner that would result in such actor(s) being directly informed of the fact that an application has been made by the applicant in question, and would jeopardise the physical integrity of the applicant and his/her dependants, or the liberty and security of his/her family members still living in the country of origin.”
The purpose of the Procedures Directive was said to be to support the public policy that all applicants for asylum should be encouraged to be candid and open in their applications. Candour was said to depend on an assurance that the information revealed would never be disclosed.
Whilst agreeing there was a need for candour, the Supreme Court held that the stipulation in article 22 of the Procedures Directive was only concerned with disclosure to alleged actors of persecution in the process of examination of individual cases.
The Directive was thus held to be much narrower than the broad principles of confidentiality protection that are generally held to be appropriate by the UN High Commissioner for Refugees (UNHCR) in its guidelines on the sharing of information on individual cases and when making refugee status determinations. Typically the UNHCR will assure asylum applicants that the UNHCR will not contact or share any information regarding the applicant with his or her country of origin unless expressly authorised to do so. UNHCR’s practice requires effective measures to be taken to ensure that information concerning an asylum claimant does not reach the hands of third parties that might use such information for purposes incompatible with human rights law. This means that the consent of the asylum claimant is in principle normally regarded as necessary before any asylum claimant information is shared with other parties by the UNHCR.
However the broad approach of the UNHCR to the question of confidentiality does not appear to have been raised by Mr McGeough in the courts. Mr McGeough instead relied by analogy on the UK procedures which feature an undertaking restricting the use of information provided by asylum seekers. The current Asylum Policy Instructions (API) require that asylum seekers are told: “The information you provide is treated in confidence, and the details of your asylum claim will not be disclosed to the authorities of your own country. However, information may be disclosed to other UK government departments, agencies, local authorities, international organisations and other bodies where necessary for Home Office purposes or to enable them to carry out their lawful functions.”
The Supreme Court held that reliance on the specific protections in the UK was inappropriate in circumstances where the Swedish process did not provide for any confidentiality principle in any case where an application for asylum was unsuccessful. The tradition of Swedish law is that information generated by such applications should enter the public domain. The information which the Swedish authorities provided was thus properly and legally supplied once Mr McGeough’s application for asylum failed. When the authorities in Northern Ireland obtained the material, the Supreme Court concluded that they had a legal obligation to make appropriate use of it, if, as it did, it revealed criminal activity on Mr McGeough’s part. There was held to be nothing that was intrinsic to the material nor in the circumstances in which it was provided that would support the conclusion that its admission would have such an adverse effect on the fairness of the proceedings that the Northern Irish courts ought not to admit it.