Case No. UKUT-00293-(IAC)

[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 was 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.” In [8], this Tribunal emphasised that one of the important attributes of the hypothetical reasonable observer is that he is duly informed. What this means is that the reasonable observer is aware of everything bearing on the question of the judge’s impartiality. In short the hypothetical reasonable observer is endowed with greater and fuller attributes than his jurisprudential predecessor, the innocent bystander. 16. I turn to consider another dimension of this appeal. The judicial duty of impartiality, one aspect whereof is the maintenance of an open mind, does not preclude the formation of tentative, provisional views in advance of adjudication. In AM (Fair Hearing) Sudan [2015] UKUT 656 (IAC), this Tribunal stated, at [7](iii): “The assiduous judge who has invested time and effort in reading all of the documentary materials in advance of the hearing is entitled to form provisional views. Provided that such views are provisional only and the judge conscientiously maintains an open mind, no unfairness arises.” In Arab Monetary Fund v Hashim [1993] 6 Admin LR 348, Sir Thomas Bingham MR stated at page 356: “ But on the whole the English tradition sanctions and even encourages a measure of disclosure by the Judge of his current thinking …. A judge does not act amiss if, in relation to some feature of a party’s case which strikes him as inherently improbable, he indicates the need for unusually compelling evidence to persuade him of the fact. ” On the other hand, the English tradition – “ … certainly does not sanction the premature expression of factual conclusions or anything which may prematurely indicate a closed mind …. An expression of scepticism is not suggestive of bias unless the judge conveys an unwillingness to be persuaded of a factual proposition whatever the evidence may be. ” More recently, in Singh ( supra ) the Court of Appeal added, at [35]: “ Indeed, such statements sometimes can positively assist the advocate or litigant in knowing where particular efforts may need to be pointed …. In fact, sometimes robust expression may be positively necessary in order to displace a presumption or misapprehension, whether wilful or otherwise, on the part of an advocate or litigant on a point which has the potential to be highly material to the case. ” The decision in Singh also draws attention to the importance of considering the proceedings as a whole in conducting the objective assessment of whether there was a real possibility that the Tribunal was biased: see [36]. My Conclusions 17. In my judgement the hypothetical reasonable observer would, balancing the key elements of the evidence outlined above, take particular note of any challenge to, or disagreement with, sustainable or otherwise, the evidence pertaining to the conduct of the hearing at first instance via the judge’s decision and his later response to the appeal. From this point of departure the observer would scrutinise with care the evidence said to demonstrate apparent bias on the part of the judge concerned. This exercise would include taking note of the words and descriptions employed by all concerned – in this instance the Appellant, his first instance advocate and the judge – and would be alert to the use of reported speech and verbatim quotations. The observer, in forming his overall view, would also be conscious of the absence of a recording or transcript of the proceedings under scrutiny. Thus the tools available would not include evidence of voice inflection or intonation. In such circumstances any ex post facto attempts to recreate the atmosphere in which a first instance hearing was transacted will invariably be difficult. 18. At the next stage the hypothetical observer would inform himself of what “bias” means in this context. In short it denotes an absence of judicial impartiality, an ingrained inclination in favour of one party to the detriment of the other. 19. Finally, the hypothetical observer would ask himself not whether the FtT judge was biased in this sense but whether this was a real possibility . In performing this exercise the observer would stand back, surveying the relevant landscape in the round and in its totality and would be cognisant that the burden of proof rests on the appellant, to the standard of the balance of probabilities. 20. The task of – and challenge for - this appellate tribunal is to don the clothing and wear the shoes of the hypothetical reasonable observer. This duty must be undertaken in every case of this genre. I have undertaken this exercise, juxtaposing in particular the evidence compiled on behalf of the Appellant with the FtT judge’s decision and his later response. As I have noted above, there is no, or no sustainable, controversy about certain key averments in the witness statements in question, particularly that of former instructed counsel. This per se, I acknowledge, is not determinative since it is incumbent upon this Tribunal to nonetheless evaluate this evidence. 21. However, I cannot overlook that the FtT Judge, when presented with the opportunity of responding to the two witness statements in question, did not challenge some of the key averments. While I acknowledge that the witness statement of the Appellant is couched in somewhat general terms – see [9] above – I would have expected the judge to respond in particular to the quoted speech contained in [1] and [2]. However the judge’s response is silent on these matters. I would also have the same expectation in relation to the main averment in counsel’s witness statement – see [8] above – in particular the quoted speech in [5] thereof and the suggestion that, in exchanges, counsel submitted that the judge appeared to have decided the facts before hearing any evidence. It is also significant that counsel was driven to invoke the audi alteram partem principle at this stage of the hearing. The Judge’s response to this is set forth in [11](b) above. It makes no reply to the suggestion clearly implicit in counsel’s witness statement that the judge was proposing to decide the appeal summarily, without receiving any evidence (the judge “ … then decided to hear the appeal. ”) Finally, I take into account that while the two witness statements were not made in the immediate aftermath of the appeal hearing, their contents convey to me that the authors had a clear recollection of events and the statements do not suffer from either unparticularised assertions or bland generalities. 22. Giving effect to the analysis above, I conclude that the Appellant has established, on the balance of probabilities, the real possibility of bias on the part of the FtT Judge. 23. My second conclusion is that the conduct of the appeal was vitiated by unfairness having regard to [15] of the decision of the FtT Judge: see [12] supra . In my judgement the FtT judge could not properly or fairly have formed the view that the evidence of the two children of the family could not conceivably inform the inter-related judicial duties of determining the Article 8 ECHR and section 55 issues. As no crystal ball was available this “ruling”, whereby evidence from these two parties was prohibited, is manifestly unsustainable in law. Furthermore, in thus ruling the judge did something which he expressly disavowed in his post-hearing response to the witness statements: contrary to his claim in [11](b) above, the judge was “ preventing the representative from calling his evidence ” and was challenging “ his running of the appeal ”. A twofold consequence follows. First, this fortifies the appearance of bias conclusion above. Second, since the evidence which the Judge excluded could have influenced the outcome – a possibility being sufficient in this context, by well established principle – the hearing was rendered unfair. 24. The further, related error of law into which the judge lapsed in this respect was to adopt the stance that parties to an appeal require the permission of the tribunal to give evidence in support of their case. I think it best to describe this approach as prima facie unlawful. I do not exclude the possibility that in certain circumstances it may be appropriate for a judge to refuse evidence to be adduced from a particular person. The ethos of tribunal litigation clearly recognises the validity of transparent and productive communication between the presiding judge and a party or his representative concerning the presentation of any given appeal, the calling of witnesses, the relevance and/or likely potency of certain proposed evidence and kindred issues. Furthermore, the presiding judge is the guardian against misuse of the tribunal’s process. None of this is unfair or improper. All of it forms part of the legitimate judicial function and is harmonious with the overriding objective. 25. However in the circumstances of this appeal the persons concerned were parties, they were the third and fourth Appellants. It was proposed to adduce evidence from them bearing on the issues concerning Article 8 of the Human Rights Convention and those issues in turn feed into section 55 of the Borders, Citizenship and Immigration Act 2009. On this freestanding separate basis I conclude that the refusal to permit the adoption of evidence from these two Appellants fully documented in paragraph 15 of the Tribunal’s decision denied the Appellants their right to a fair hearing. 26. In conclusion it seems timely to remind both judges and practitioners of what this Tribunal stated in [14] of Alubankudi : “The interface between the judiciary and society is of greater importance nowadays than it has ever been. In both the conduct of hearings and the compilation of judgments, Judges must have their antennae tuned to the immediate and wider audiences. As the decision in AAN demonstrates, Judges must be alert to the sensitivities and perceptions of others, particularly in a multi-cultural society.” In the real world of the United Kingdom in the year 2017 acute judicial alertness to what is stated above will enhance fairness, promote justice and, ultimately, further and fortify the rule of law. Decision and Order 27. For these reasons the appeal succeeds to the following extent. I set aside the decision of the FtT and given the grounds upon which I have determined to do so I remit the case to the FtT for the purpose of a further hearing to be conducted by a different judge. THE HON. MR JUSTICE MCCLOSKEY PRESIDENT OF THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER Date: 28 June 2017