Hot on the heels of Celik and Batool comes another case dealing with the complex mess of post-Brexit free movement law. The case is Elais (fairness and extended family members) [2022] UKUT 300 (IAC). You can read more about the cases of Celik and Batool here.

In this case, the Upper Tribunal considered three issues:

1. What is the relevance of a post-Brexit marriage in a durable partner appeal?
2. When can an appeal be allowed due to the apparent bias of the First-tier Tribunal judge who first heard the case?
3. When can an appeal be allowed due to the First-tier Tribunal hearing being unfair?

The second and third issues arose due to the way the First-tier Tribunal judge conducted the hearing, which was influenced by his misunderstanding of the first issue.

Post-Brexit marriage

Both Celik and Batool concerned what happens when someone has failed to marry, or make an application as a durable partner under EU free movement law, before 31 December 2020. Mr Elais did make an application as a durable partner of an EEA national before 31 December 2020. However, the Home Office did not accept that his relationship was durable.

By the time the appeal was heard, Mr Elais and his partner had married. This was after the end of the Brexit transition period on 31 December 2020. The First-tier Tribunal judge decided that this was not a “new matter” which required the Home Office’s consent to be considered. He also seems to have formed the view that, unless the marriage was a sham, Mr Elais should win his appeal.

At the outset of the hearing the judge expressed the preliminary view that the marriage was “compelling evidence” that the couple were durable partners. He also intervened during the Home Office’s cross examination to question the relevance of what was being asked, leading to some testy exchanges. At least, that’s how it comes across in the transcript appended to the judgment.

The Upper Tribunal agreed that the marriage was not a new matter. This is because it could not constitute a ground of appeal (breach of the EU Treaties):

“By definition, it could not have been a breach of the EU Treaties, as applied by the EU withdrawal agreement, to refuse to grant an application for a residence card as a family member on the grounds of a marriage that did not take place until after the implementation period came to an end, when Union law no longer applied to the parties to the marriage. The appellant was outside the personal scope of the rights of residence conferred on “family members” by Part 2 of the EU withdrawal agreement, since he had not resided in the UK under Union law prior to the end of the implementation period: see Article 10(1)(e)(i) of the EU withdrawal agreement.

The Tribunal doesn’t say so, but this is essentially an application of the reasoning in Celik on post-Brexit marriages.

Although the First-tier Tribunal judge was correct that it was not a new matter, he was wrong to think that the marriage was determinative of the appeal:

“…we consider that he fell into error by holding that Mr Fazli [Counsel for the Home Office] could only question whether the marriage was genuine and subsisting by reference to the established EU law jurisprudence concerning marriages of convenience, or, to use the judge’s terminology, “sham” marriages.   This was not a marriage of convenience case, and the burden was on the appellant to establish that (i) the sponsor was his partner; and (ii) their relationship was durable, to the satisfaction of the decision maker. That being so, the mere fact of the marriage between the appellant and the sponsor could not be a development that, without more, would be capable of shedding the determinative light on the issue that the judge announced at the outset of the hearing that it could.”

If the marriage had taken place before 31 December 2020, the Home Office would need to prove that it was a marriage of convenience. As this wasn’t being alleged, the judge’s interventions would have reflected a sound understanding of the law under the previous legal framework.

However, the marriage took place after 31 December 2020. As such, the judge was required to approach the case on the “legally correct but somewhat artificial footing” that the marriage is merely evidence of the prior durability of the relationship. Within this post-Brexit legal framework, the Home Officer are entitled to scrutinise the genuineness of the marriage as this is relevant to the existence and durability of the claimed relationship.

Apparent bias

The Home Office argued that the judge’s comments at the outset of the hearing, and interventions during cross examination, gave the appearance of bias. The Upper Tribunal did not agree:

“…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. 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.” [28]

The Tribunal emphasises that dialogue between the parties and the judge is valuable. I agree. I’ve often appeared before judges who seem to have already made up their mind before the hearing has concluded.

Sometimes that is in my favour, in which case it is great; nothing beats going into court and discovering you are pushing at an open door. Sometimes it isn’t, in which case it makes presenting my client’s case more difficult. But I’ve never interpreted this as bias. The preliminary views are not a result of prejudice against one party. They are invariably based on the judge’s analysis of the legal or factual merits of the case. As long as they remain open to persuasion, there is nothing wrong with this.

In relation to the interventions, the Upper Tribunal decided that a fair-minded and informed observer (the hypothetical person used to assess the appearance of bias) would have concluded that these were motived by a misunderstanding of the law, rather than prejudice against the Home Office. This aspect of the Home Office’s appeal therefore failed.

Procedural unfairness

The Home Office also argued that the hearing was procedurally unfair. There is no need to resort to a hypothetical observer when it comes to the fairness of a hearing. Either the hearing was fair, or it was not.

The tribunal notes that cross-examination loses much of its effectiveness if the witness is given time to think about the answers to awkward questions: “…the very gist of cross-examination lies in the unbroken sequence of question and answer”.

The judge should supervise the taking of evidence but should be slow to intervene.

To use the militaristic language of the case law, the judge must not descend into the arena as, if they do so, they are liable to have their vision clouded by the dust of conflict.

The Upper Tribunal held that, in Mr Elais’s case, the judge had descended into the arena by interfering in the Home Office’s cross-examination and the hearing was therefore unfair. The case was sent back to the First-tier Tribunal to be heard again.

Alleging that a judge has acted unfairly is never easy. However, this case shows that sometimes it is justified and can form the basis of a successful appeal.