Case No. UKUT-00293-(IAC)

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