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Upper Tribunal cases on fair hearings in immigration cases


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Three recent cases on fair hearings in immigration cases, all from President McCloskey. All make interesting reading.

Firstly, the headnote from AM (fair hearing) Sudan [2015] UKUT 656 (IAC):

(i) Independent judicial research is inappropriate. It is not for the judge to assemble evidence. Rather, it is the duty of the judge to decide each case on the basis of the evidence presented by the parties, duly infused, where appropriate, by the doctrine of judicial notice.

(ii) If a judge is cognisant of something conceivably material which does not form part of either party’s case, this must be brought to the attention of the parties at the earliest possible stage, which duty could in principle extend beyond the hearing date.

(iii) Judges are entitled to form provisional views in advance of a hearing provided that an open mind is conscientiously maintained.

(iv) Footnotes to decisions of the Secretary of State are an integral part of the decision and, hence, may legitimately be considered and accessed by Tribunals.

(v) Fairness may require a Tribunal to canvas an issue which has not been ventilated by the parties or their representatives, in fulfilment of each party’s right to a fair hearing.

In AM the Home Office appealed on the basis that the judge had — horror of horrors — looked up the footnotes in a reasons for refusal letter and had somehow pre-judged the appeal, although it is not clear how. The President gives this short shrift, finding that there was “no vestige of merit or substance” in the latter ground. One suspects that the civil servant who drafted the grounds of appeal did not have possession of the full file, only the determination, as I understand is standard (and very poor) practice in the appeals unit.

It would have been nice to see an award of costs for such a poor and absurd appeal being brought despite previous warnings by the President.

The next case, Wagner (advocates’ conduct – fair hearing) [2015] UKUT 655 (IAC), concerns the conduct of the Presenting Officer at the appeal hearing. The Presenting Officer in question is not named, nor is she referred to her “regulator”. The headnote:

(i) Legitimate advocacy does not extend to aggressive questioning of, or confrontation with, a party or witness. The Tribunal should intervene where this occurs. 

(ii) Similarly, mere comments by an advocate under the guise of questioning are improper and may also require judicial intervention.

(iii) Improper conduct on the part of an advocate, unchecked and unrestrained by judicial authority and hearing management, can potentially render a hearing unfair.

This one involved a very poorly 71 year old South African. Questions and comments by the Presenting Officer were found by the Upper Tribunal to be “improper” and “inappropriate” and the judge had failed to ensure a fair hearing. On remaking the decision, the appeal was allowed.

The last case to mention here is Alubankudi (Appearance of bias) [2015] UKUT 542 (IAC). In this case, involving a 7o year old Nigerian lady, the judge had commented 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”. This was not found to be sufficient to indicate bias by the judge, but was described as “unfortunate”.

The headnote:

(i) One of the important elements of apparent bias is that the hypothetical fair minded observer is properly informed and possessed of all material facts.

(ii) The interface between the judiciary and society is of greater importance nowadays than it has ever been. Judges must have their antennae tuned to the immediate and wider audiences, alert to the sensitivities and perceptions of others, particularly in a multi-cultural society. Statements such as that made by the FtT Judge in this case that “the United Kingdom is not a retirement home for the rest of the world” had the potential to cause offence and should be avoided. 

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.