Case No. UKUT-00542-(IAC)

that she would be exposed to ill treatment in the event of returning there. The decision continues: “ It is not considered that you have provided any evidence showing that your circumstances have significantly changed since you last left Nigeria on 16 July 2009, or that you would be living in the most exceptional compassionate circumstances should you return to Nigeria. All your representations have been taken into consideration and it is the view that you have not raised any exceptionally compelling or compassionate factors that would warrant a grant of leave in the UK . ” The application was refused accordingly. 3. The First-tier Tribunal (the “ FtT ”) dismissed the ensuing appeal. Its assessment was that the impugned decision interfered with the Appellant’s right to respect for private and family life but was “ in accordance with the law and necessary for the economic well being of society ”. In considering the issue of proportionality, the Judge noted the applicability of section 117A of the Nationality, Immigration and Asylum Act 2002 (the “ 2002 Act ”), proceeding to highlight the following facts and factors: the absence of evidence that the Appellant speaks English; her “ accessing ” NHS medical treatment, to which her daughter knew she was not entitled, since first registering with a General Medical Practitioner in 1997; the inevitability of further recourse to free NHS treatment; the absence of evidence of “ substantial integration ” into life in the United Kingdom or of an extensive private life outside the family unit. 4. Next, having highlighted the evidence, including several doctors’ letters, relating to the Appellant’s state of health, the Judge noted the absence of any claim that she required long term personal care to perform everyday tasks. The Judge was satisfied that such longer term personal care as the Appellant may require, will be available to her in Nigeria. He also noted the ability of the Appellant’s daughter to continue to support her mother financially, evidenced by, inter alia , her second home in the United Kingdom . The Judge further found that the Appellant would not be at risk of any ill treatment in Nigeria , noting in particular the evidence of both the Appellant and her daughter that in 2009 the Appellant fully intended to return there. In summary, the status quo ante 2009 would be re-established upon the Appellant’s return to Nigeria . 5. Permission to appeal was granted in the following terms: “ The decision as a whole displays cogent evidence based reasoning. However, the grounds argue bias and lack of a fair hearing rooted in the Judge’s remark at paragraph 51 that ‘there is a great deal of authority to the effect that the United Kingdom is not a retirement home for the rest of the world’ . While this by no means discloses any clear error of law, particularly taken against the content of the rest of the decision, the need for justice to be seen to be done on balance renders the ground arguable. ” [Emphasis added] Thus the issue for us is whether the decision of the FtT is tainted by apparent bias . Governing Legal Principles 6. Every litigant enjoys a common law right to a fair hearing. This entails fairness of the procedural, rather than substantive, variety. Where a breach of this right is demonstrated, this will normally be considered a material error of law warranting the setting aside of the decision of the FtT: see AAN (Veil) Afghanistan [2014] UKUT 102 (IAC) and MM (Unfairness; E&R) Sudan [2014] UKUT 105 (IAC). The fair hearing principle may be viewed as the unification of the two common law maxims audi alteram partem and nemo judex in causa sua , which combine to form the doctrine of natural justice, as it w a s formerly known . These two maxims are, nowadays, frequently expressed in the terms of a right and a prohibition, namely the litigant’s right to a fair hearing and the prohibition which precludes a Judge from adjudicating in a case in which he has an interest. 7. Further refinements of the fair hearing principle have resulted in the development of the concepts of apparent bias and actual bias. The latter equates with the prohibition identified immediately above. In contrast, apparent bias, where invoked, gives rise to a somewhat more sophisticated and subtle challenge. It entails the application of the following test: “ The question is whether the fair minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was bias. ” See Porter v Magill [2001] UKHL 67, at [103]. In Re Medicaments [2001] 1 WLR 700, the Court of Appeal provided the following exposition of the task of the appellate, or review, court or tribunal: “ The Court must first ascertain all the circumstances which have a bearing on the suggestion that the Judge was bias. It must then ask whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility … that the Tribunal was bias. The material circumstances will include any explanation given by the Judge under review as to his knowledge or appreciation of those circumstances. ” In Lawal v Northern Spirit [2003] UKHL 35, the House of Lords reiterated the importance of first identifying the circumstances which are said to give rise to apparent bias. 8. The authorities place due emphasis on the requirement that the hypothetical reasonable observer is duly informed . This connotes that the observer is in possession of all material facts. See, for example, Taylor v Lawrence [2002] EWCA Civ 90, at [61] – [63]. Furthermore, the hypothetical fair minded observer is a person of balance and temperance, “ … neither complacent nor unduly sensitive or suspicious ”, per Lord Steyn in Lawal at [14]. Finally, it is appropriate to emphasise that the doctrine of apparent bias has its roots in a principle of some longevity and indisputable pedigree, namely the requirement that justice not only be done but manifestly be seen to be done: see, for example, Davidson v Scottish Ministers [2004] UKHL 34. Decision 9. On behalf of the Appellant Ms Charlton submitted that the “ retirement home ” comment was indicative of the Judge’s adverse inclination against her client’s case which, she suggested, was manifest in certain other parts of the operative passages in the determination. In developing this argument, she relied on: (a) The Judge’s statement that there was no evidence that the Appellant spoke English and that this would be considered a barrier to integration. (b) His observation that if the Appellant were to find medication and personal assistance expensive in Nigeria , her daughter’s financial resources could be deployed to this end and, in particular, her daughter’s second home in the United Kingdom could be sold if necessary. (c) The indifference to the interests of others viz the daughter and grandchildren which this statement displayed. Focusing particularly on the “ retirement home ” comment, Ms Charlton submitted that this was belittling to and insulting of both the Appellant and her daughter and, further, overlooked that thanks to the daughter the Appellant had at all times been fully self-supporting. 10. The question in this appeal is whether the decision of the FtT is vitiated by apparent bias and, hence, unsustainable in law by re ason of the passage quoted in [5 ] above. We are satisfied that the assessment of the hypothetical fair minded, reasonable and properly informed observer would be as follows. First, there is no suggestion (much less any evidence) that the Judge has , or had, any predisposition against persons such as this Appellant or is anti-immigrant or anti-immigration generally. Second, as the permission Judge noted, the determination, read as a whole, displays “ cogent evidence based reasoning ”. To this we add the modest adjustment that, at the stage of the Judge’s reasoning, evidence had, of course, matured into