Upper Tribunal highlights confidentiality risks of using AI in immigration cases

A recent decision of the Upper Tribunal (Immigration and Asylum Chamber) has raised important concerns about the use of artificial intelligence (AI) in legal practice — particularly the risks to client confidentiality.

In UK v Secretary of State for the Home Department [2026] UKUT 81 (IAC), the Tribunal addressed situations where AI tools had been used in preparing legal documents. While part of the judgment dealt with inaccurate legal citations, one of the most significant warnings concerned the potential danger of uploading sensitive client information into publicly accessible AI platforms.

For clients, this issue is critical, and whilst the judgment relates to immigration, the principles discussed apply across the board.

Why confidentiality matters

Confidentiality is a cornerstone of the lawyer/client relationship. Clients must be able to share sensitive details, including personal history, immigration status, medical evidence, or protection claims, knowing that their information will remain private.

If confidential documents are entered into certain public AI systems, there is a risk that:

• The information may be stored on external servers
• It could be accessed or used in ways the firm cannot control
• Legal privilege (the protection that keeps lawyer/client communications private) could potentially be undermined

The Tribunal made clear that these risks are not theoretical. Lawyers must understand how any technology they use handles data.

The Tribunal’s warning

The Upper Tribunal (Immigration and Asylum Chamber) made it clear that the responsibility for protecting client confidentiality rests squarely and continuously with the legal representative. That duty does not diminish simply because new technology is involved. Whether information is shared in a meeting room, sent by email, or processed through digital tools, lawyers remain under a strict professional obligation to safeguard client data at every stage of a case.

The Tribunal specifically warned that uploading client documents or sensitive personal information into publicly accessible or “open” AI platforms may amount to a breach of professional conduct rules. Many widely available AI systems operate on external servers and may retain, process, or use submitted data in ways that are not fully transparent to the user. If confidential information is entered into such systems without appropriate safeguards, there is a real risk that privacy obligations could be compromised. In legal practice this risk is especially serious.

The judgment further emphasised that consequences for mishandling confidential data may extend beyond judicial criticism. If a court concludes that client confidentiality has been put at risk, the matter could be referred to professional regulators, such as the Solicitors Regulation Authority, or to data protection authorities. Regulatory investigations can result in disciplinary action, financial penalties, or reputational damage to a firm.

In this way, the Tribunal’s decision sends a broader message to the profession: misuse of AI is not merely a technical error or a lapse in judgment. Where confidentiality is concerned, it may engage core professional duties and trigger formal regulatory scrutiny.

Conclusion

We treat confidentiality as fundamental. Any technology used within our practice is carefully assessed to ensure compliance with professional obligations and data protection law.

If you have concerns about data protection or would like to understand how your information is safeguarded in your legal matter, please contact our team. Your privacy and trust remain our highest priority.

After a recent successful application for summary judgment, we thought it worthwhile to reflect on the practical importance of this procedural tool within Guernsey litigation. 

Introduction to summary judgment

Summary judgment is an important procedural tool within civil litigation, enabling the court to dispose of claims or defences that have no real prospect of success without requiring a full trial. It offers an important mechanism for ensuring that weak or groundless claims do not proceed to costly evidential stages. 

This article sets out the legal basis of summary judgment in Guernsey, when it is appropriate, the steps involved, evidential expectations, a brief note on defending such applications, appeal rights, and a comparison with strike-out applications.

The legal basis for summary judgment in Guernsey

The Civil Litigation procedure in Guernsey is set out in the Royal Court Civil Rules 2007 (2007 Rules). 

The 2007 Rules set out the foundation for all civil procedural applications, including those for summary judgment. Although these draw on the rules of procedure applicable in England and Wales, there are important differences specific to Guernsey.

When summary judgment is appropriate

Summary judgment is suitable where it is clear that a party has:

• No real prospect of succeeding on its claim or defence
• There is no compelling reason for the matter to proceed to trial.

Although the 2007 Rules do not mirror the English and Welsh Civil Procedure Rules identically, underlying principals often remain consistent. In the case of summary judgment, the emphasis of the quick removal of claims or defences lacking a realistic basis is mirrored. 

Typical situations in which summary judgment may be considered include:

• Where factual issues are undisputed, and the case turns largely on a point of law
• Where documentary evidence overwhelmingly supports one party, rendering a trial unnecessary
• Where a defendant’s pleaded case is inherently unsustainable, even if technically compliant with pleading standards.

Conversely, summary judgment is not appropriate where:

• Key facts remain genuinely disputed
• Evidence requires cross‑examination or
• The legal position is unclear or developing.

Procedural steps in a summary judgment application

A summary judgment application is generally brought after pleadings have closed, meaning the claim (Cause) and defences have been filed.

When bringing the application, the applicant must give the opposing party a minimum of four clear days’ notice before the application is scheduled to be heard. This ensures the respondent has a fair opportunity to consider the issues raised and prepare any answering evidence.

The application must be supported by a sworn affidavit, which should clearly set out:

• The point of law or legal basis relied upon
• The material facts supporting the application
• The documents or evidence demonstrating why the opposing party has no real prospect of succeeding.

The Royal Court retains broad discretion to determine the application based on the written evidence and concise oral submissions, reflecting Guernsey’s adversarial system in which both written and oral advocacy play a central role.

Defending a summary judgment application

A respondent must show that there is a triable issue or a realistic prospect of success.

This may involve demonstrating factual disputes, incomplete disclosure, or raising legal questions unsuitable for disposal on paper. 

Appeal rights

Decisions on summary judgment may be appealed to the Guernsey Court of Appeal in the usual way. 

Comparison with strike out applications

Summary judgment and strike out applications are often assessed together and sometimes both applications may be made. They are similar in their nature but both serve different purposes.  

A strike out application challenges the pleading itself – for example, where a claim discloses no cause of action, is an abuse of process, or is fundamentally defective. It does not depend on evidence. 

Summary judgment focuses on the evidential strength of a case. It asks whether the claim or defence has any realistic prospect of success when assessed alongside the available evidence.

In practice a strike out may be the appropriate route where pleadings are deficient irrespective of evidence. However, summary judgment is appropriate where pleadings appear sufficient, but the evidence shows the case cannot succeed.

Conclusion

Summary judgment remains a powerful mechanism in Guernsey litigation, enabling the Royal Court to deal efficiently with cases that do not warrant the time and cost of a full trial. By understanding when it is appropriate, how applications are made, and how the court evaluates evidence, summary judgment can be used to streamline litigation and focus on issues that genuinely require judicial determination.

Recent headlines suggest a Tribunal has ruled that it is “not harassment” to ask a woman if she is menopausal. That framing is catchy, but legally misleading.

Employment Tribunals do not decide harassment claims by slogan. They decide them by applying statute to facts.

The legal test

Under section 26 of the Equality Act 2010 (the Equality Act), harassment occurs where a person engages in unwanted conduct related to a protected characteristic (such as sex and/or age) and the conduct has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

In menopause-related cases, claims are typically framed as harassment related to sex, age, or both.

Two key points often get lost:

1. The conduct must be unwanted.
2. It must either have the purpose or the effect of violating dignity or creating the prohibited environment — and that effect must be reasonable in all the circumstances.

The final phrase “reasonable in all the circumstances” is where context becomes everything.

In Ms L Waller v Swann Engineering Group Ltd (ET/6017991/2024), the Tribunal accepted that a manager made menopause-related comments, including references to “going through the change.”

However, taking the full factual matrix into account, the Tribunal concluded that it was not reasonable to treat the comments as meeting the statutory threshold for harassment under section 26.

Importantly, the Tribunal did not say that comments regarding menopause are acceptable. It did not create a blanket rule, but instead assessed the context, tone, relationship, and overall environment.

Notably, the claimant succeeded on other causes of action, and not exclusively under the harassment provisions.

In contrast, there is the judgment of Ms L Best v Embark on Raw Ltd (ET/3202006/2020) where the Tribunal upheld harassment related to sex and age. Menopause was raised in a way the Tribunal described as tactless and intrusive, and crucially the conduct continued after it was clear it was unwelcome.

The Tribunal found that the behaviour had the effect of violating dignity and creating a humiliating environment.

It’s also worth noting that menopause comments did not occur in isolation. The Tribunal examined a broader pattern of behaviour.

Why menopause comments toe the line

The dividing line is intensely fact-sensitive. Tribunals will consider:

• One-off vs repeated conduct
• Supportive enquiry vs intrusive or derogatory remark
• Genuinely welcomed conversation vs persistence after boundaries are clear
• Private discussion vs public embarrassment
• Power dynamics between manager and employee

A single, sensitively handled wellbeing conversation may be lawful. Repeated, flippant or boundary-crossing comments, particularly from someone in authority, may well be harassment.

The same words can cross the legal threshold in one setting and fall short in another, which reflects that workplace interactions are human and highly contextual.

Application in Guernsey

Harassment is prohibited under the Prevention of Discrimination (Guernsey) Ordinance, 2022, which uses a definition similar to section 26 of the Equality Act 2010. In simple terms, harassment occurs where unwanted conduct linked to a protected ground (such as sex) affects someone’s dignity at work or creates an intimidating, hostile, degrading, humiliating or offensive environment.

One important difference is that age is not yet a protected ground in Guernsey (though this is expected to change in 2027). For now, menopause-related claims are most likely to be brought as sex-based harassment or discrimination claims. That does not make them weaker, but it does shape how they are argued.

Conclusion

Ultimately, the issue is not whether the word “menopause” was used. It is whether, in all the circumstances, the conduct was unwanted and reasonably had the effect of undermining dignity at work. Employers who prioritise respectful, informed conversations are far less likely to find themselves testing that boundary before a Tribunal.

In divorce proceedings, assets are generally split into two categories: matrimonial assets, namely assets which were acquired by the parties throughout the course of the marriage; and non-matrimonial assets, which are assets which the parties obtained outside of the marriage. For example, matrimonial assets will normally comprise of the matrimonial home, earnings made during the marriage (note: if only one party worked, it will often be presumed that the other party contributed equally by maintaining the household and raising children etc.) and any investments or assets purchased during the course of the marriage. Conversely, non-matrimonial assets will generally consist of property or other investments obtained prior to the marriage, anything obtained by the parties post-separation, and any inheritance or other family-sourced wealth.

For matrimonial assets, a needs-based approach will be taken in the first instance, ensuring that at least the custodial parent (in matters involving children) or most vulnerable party has sufficient means to live and (where applicable) take care of the children of the marriage. In high-net-worth divorces, however, once the parties’ basic needs have been met, remaining assets are subject to the “sharing principle”, whereby each party is generally entitled to 50% of the remaining matrimonial assets, unless there is good reason to divide the assets in a different manner. 

As we know, although this explanation appears simple enough, in reality, there is often some blurring of the lines between what could be treated as a matrimonial asset and what is to be set aside from the assets which are to be shared between the parties as part of the divorce proceedings. A recent decision of the Supreme Court has developed this point further.

Standish v Standish

In Standish v Standish, the divorce between a high-net-worth couple gave rise to a dispute over approximately £80m which had been transferred to the wife by the husband around 3 years prior to the breakdown of their marriage. Originally, the intention had been to take advantage of Mrs Standish’s non-domiciled status in order to establish a tax-efficient structure for the benefit of the couple’s two children, however this failed to materialise. During divorce proceedings, Mrs Standish argued that these funds had been treated as matrimonial property and as such, should be subject to the sharing principle. The matter went back and forth on appeal by both parties until it was heard by the Supreme Court, which ruled that the assets were not matrimonial property, and as such, only 25% should be subject to the sharing principle, meaning that approximately 87% of the assets were retained by Mr Standish. 

The position going forward

In the wake of Standish v Standish, two principles have become clear:

1. Property which is not considered to be matrimonial is not subject to the sharing principle; and
2. Property which is treated as a matrimonial asset for the duration of the marriage can become “matrimonialised”.

The first of these points is, of course, to be approached with some caution in the majority of cases, as no court is likely to leave a vulnerable party with nothing simply because they came into the marriage with very little, especially where children are involved. For high-net-worth individuals, however, it is important to bear in mind that once everyone is taken care of and the matrimonial assets split, both parties will generally walk away with whatever else they brought into the marriage. 

The second of these points, however, is important to bear in mind. While one party might enter a marriage with significant assets, if these assets end up being used by or for the benefit of both parties, they could end up being incorporated with the rest of the matrimonial assets. For example, a rental property brought into the marriage by a husband but used to fund joint holidays would no longer be just for his benefit, and it may be considered unfair to thrust the wife into a standard of living below that which she had become accustomed to, simply because she didn’t purchase the property initially. 

Conclusion

Although not binding in Guernsey, the ruling in Standish v Standish will be at least persuasive in the Guernsey Courts. As such, high-net-worth individuals contemplating a divorce ought to consider not only the assets they brought into the marriage, but also how these assets were used by both parties over the course of the marriage. 

Of course, while it is helpful to have an idea of where matrimonial assets came from, this is a matter on which legal advice is crucial. If you are in the early stages of going through a divorce and would like to obtain initial advice on asset division, as well as continued support with the legal process, please contact Robin Gist, Charlotte Tomlinson, or Aimee Brown. 

The UK Court of Appeal has dismissed an appeal by EuroChem North West 2 (NW2) (cited as [2026] EWCA Civ 5), confirming the validity of an anti-suit injunction issued by an arbitral tribunal to restrain proceedings brought in Russia involving sanctioned Russian parties. The decision, reported, reinforces the English courts’ strong pro-arbitration stance and their willingness to support arbitral tribunals in protecting the integrity of London-seated arbitrations.

Background

The dispute arises out of construction contracts between NW2 and the Italian engineering company Tecnimont. In 2022, NW2’s ultimate owner, Andrey Melnichenko, was added to the European Union’s sanctions list following Russia’s invasion of Ukraine. In response, Tecnimont suspended performance of the construction contracts, taking the position that EU sanctions prevented it from continuing to perform. NW2 subsequently terminated the contracts.

Tecnimont commenced arbitration proceedings in London pursuant to the arbitration agreements in the contracts. NW2 initially participated in those arbitral proceedings. However, it later began court proceedings in Russia, relying on Article 248 of the Russian Commercial (Arbitrazh) Procedure Code.

Article 248 grants Russian commercial courts exclusive jurisdiction over disputes involving Russian parties who are subject to foreign sanctions. Since its introduction, Article 248 has been used repeatedly by Russian parties to override arbitration agreements and foreign jurisdiction clauses, particularly where disputes involve EU, UK, or US sanctions.

The anti-suit injunction

In response to the Russian proceedings, the arbitral tribunal issued an anti-suit injunction ordering NW2 to discontinue the Russian claim. The tribunal concluded that the Russian proceedings were brought in breach of the arbitration agreements and threatened the tribunal’s jurisdiction and the arbitral process.

NW2 challenged the ASI in the English courts. At first instance, the High Court upheld the tribunal’s order in [2025] EWHC 3151 (Comm). The court found that the Russian proceedings were “at least in large part, aimed at frustrating EU and UK sanctions against Russia” and emphasised that it was the policy of the English courts to ensure the effectiveness of those sanctions regimes.

The Court of Appeal’s decision

The Court of Appeal has now upheld the High Court’s judgment, dismissing NW2’s appeal in full. However, the appellate court took a more restrained approach than the High Court. Rather than focusing on sanctions policy or the geopolitical context, it grounded its reasoning squarely in the framework of the Arbitration Act 1996.

The Court of Appeal emphasised that:

• The arbitration agreements were valid and provided for London-seated arbitration.
• The tribunal was entitled, as a matter of English arbitration law, to protect its own jurisdiction and the integrity of the arbitral process.
• An anti-suit injunction aimed at preventing parallel foreign proceedings brought in breach of an arbitration agreement falls squarely within that protective function.

The court rejected the argument that comity or respect for the Russian courts should prevent enforcement of the ASI. Where parties have agreed to arbitrate and one party seeks to undermine that agreement by invoking a foreign statute such as Article 248, English courts are entitled and, in appropriate cases, obliged to intervene.

Notably, the Court of Appeal did not endorse or reject the High Court’s broader observations about sanctions evasion. Instead, it made clear that the outcome could be justified entirely by reference to orthodox principles of English arbitration law.

Significance of the ruling

The decision provides further reassurance to parties choosing London as a seat of arbitration, particularly in disputes involving Russian counterparties and sanctions-related issues. It confirms that English courts will robustly support arbitral tribunals in issuing and enforcing anti-suit injunctions, even where those injunctions are directed at proceedings in jurisdictions that assert mandatory or exclusive jurisdiction under domestic law.

More broadly, the ruling underscores the limits of Article 248 in the face of arbitration agreements governed by English law and supervised by the English courts. While Russian courts may assert exclusive jurisdiction under Article 248, parties who have agreed to arbitrate in London remain exposed to effective remedies in England if they seek to bypass that agreement.

Guernsey has historically maintained a relatively light-touch employment law regime compared with some larger jurisdictions, but the legal environment is changing. Recent legislative reforms, shifting working practices, and increasing scrutiny of discrimination, flexibility and settlement terms mean that employment-related disputes are now more likely and more complex. This indicates that employers must adapt, and quickly.

The Legal Framework

At the core of Guernsey’s employment law regime is the Employment Protection (Guernsey) Law, 1998, which provides protections such as unfair dismissal rights. 

Complementing that are:

• Minimum Wage (Guernsey) Law, 2009

• The Sex Discrimination (Employment) (Guernsey) Ordinance, 2005

• Prevention of Discrimination (Guernsey) Ordinance, 2022 
• Other key laws such as the Conditions of Employment (Guernsey) Law, 1985 and various statutory rights for leave, etc.

The Employment & Discrimination Tribunal handles statutory complaints (e.g. complaints of unfair dismissal and/or discrimination) and the Employment & Equal Opportunities Service (EEOS) offers conciliation services. Jurisdictional issues (such as whether someone “ordinarily works in Guernsey”) require careful consideration. 

It is essential that employers ensure they have up-to-date employment contracts, grievance and disciplinary procedures, and that they recognise the difference between internal contractual (court) claims and statutory tribunal claims.

Key Risk Areas in 2025 

1. Non-Disclosure / Settlement Agreements – A Changing Landscape

Recent developments in England & Wales have introduced significant reform of NDAs (and settlement agreements). While the reforms currently apply in England & Wales, they signal a broader international trend which may influence settlement practice in Guernsey (especially where entities or individuals operate across jurisdictions).

• From 1 October 2025 the Victims and Prisoners Act 2024 brings into force changes to NDAs such that confidentiality clauses are void to the extent they prevent “permitted disclosures” by victims of crime to law enforcement, regulators or legal advisers. 
• Separately the UK government has announced its intention to table amendments to the Employment Rights Bill to ban NDAs being used to silence victims of harassment or discrimination. This means that confidentiality clauses in settlement agreements of that nature would be null and void. 

Implications for Guernsey employers and advisers:

• Settlement agreements / compromise agreements involving Guernsey employment law should be reviewed to ensure confidentiality clauses do not over-reach, particularly if cross-border or UK elements are present.
• Employers should draft exit/settlement agreements with clear carve-outs for disclosures to regulators, legal advisors, law enforcement, even if Guernsey law does not yet mirror the UK reforms exactly.
• Employers should consider whether entirely silencing clauses are prudent given the global momentum (and reputational risk) toward transparency in misconduct/harassment situations.
• Employers (or their legal advisors) should monitor whether Guernsey itself adopts similar reforms or guidance in respect of NDAs/settlement agreements, and adapt accordingly.

2. Age Discrimination and the Next Phase of Guernsey’s Anti-Discrimination Law

While Guernsey prohibits discrimination on five grounds (race, disability, career status, sexual orientation and religion or belief), age is not yet a protected characteristic in Guernsey. However, it is expected to be introduced in 2027.

• The Committee for Employment & Social Security (ESS) has proposed introducing age as a protected ground (in addition to phase two of the Ordinance) and published a policy letter in March 2025 setting out the proposals. 
• Once age protection is introduced, differential treatment based on age will (subject to any permitted objective justification) be actionable in employment, provision of goods/services, accommodation, education and club membership. 

Implications for employers and advisers:

• Employers should proactively review hiring, promotion, redundancy and pension policies, identify any age-based differential treatment (e.g. older/younger employees) and assess whether such differences could be justifiable.
• Contract clauses or policies requiring mandatory retirement ages may become legally risky once age discrimination protection is introduced. 
• Training for management on age-related bias, ageism in the workplace, and ensuring neutrality across age groups will be important.

3. Other Key Risk Areas

• Unfair/Constructive Dismissal: Employers must ensure fair process, meaningful written reasons, and valid grounds for dismissal (where applicable).
• Remote/Hybrid Work & Jurisdiction: With more cross-border and hybrid working arrangements, questions about where an employee “ordinarily works” can affect jurisdiction and eligibility to bring a claim. Employers should define the place of work clearly in employment contracts and review the risk profile of remote workers, especially where regulatory or data protection issues may also arise.
• ADR & Early Resolution: Internal grievance mechanisms, early mediation/conciliation, and proactive dispute-resolution policies can reduce costs and reputational damage.

Practical Checklist for Employers and Advisers

• Review contracts & settlement templates – ensure confidentiality/settlement clauses are crafted with an eye to evolving international standards (e.g. UK NDA reform), and carve-outs for disclosures to regulators/law enforcement are explicit.
• Update policies for impending age discrimination protection – review age-based benefits, retirement age provisions, career progression and redundancy criteria; ensure objective justification exists for any age-linked treatment.
• Training & awareness – train HR/management on recognising discrimination (including age), harassment, grievance handling, remote/hybrid work issues.
• Robust grievance/discipline procedures – internal mechanisms should be clear, fair, documented; escalate early to avoid tribunal claims.
• Exit/settlement strategy – early consideration of settlement vs tribunal; ensure exit agreements are carefully drafted with global context in mind.
• Remote/hybrid working clarity – define place of work, jurisdiction, working hours, applicable law; review whether “ordinarily works in Guernsey” remains satisfied; guard against mis-classification and subtraction of statutory eligibility.
• Monitor legislative & case-law developments – track progress of Guernsey’s age discrimination introduction, UK reforms to NDAs, and emerging tribunal decisions in Guernsey/Channel Islands.

Looking Ahead

Employment and workplace disputes in Guernsey are poised to become more frequent and more nuanced. The confluence of expanded discrimination protections (age), shifting settlement/exit agreement practices (including NDA reform in the UK) and evolving working models (remote/hybrid) means that employers must act now, not just when a claim arises.

By adopting a strategic, proactive approach, Guernsey businesses can reduce the cost, disruption and reputational risk of employment disputes and position themselves as fair, modern employers in a changing landscape.