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Upper Tribunal rejects claim of bias against Judge Geraint Jones QC


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Judge Geraint Jones QC is well known to lawyers appearing at the Hatton Cross immigration tribunal hearing centre. In the case of Ortega (remittal; bias; parental relationship) [2018] UKUT 298 (IAC) the Upper Tribunal has rejected claims that one of his determinations showed bias against an appellant.

Amongst other things the judge described the appellant as displaying “criminal tendencies and lack of moral fibre”. On the facts of the case, these comments were said to be “robust” but not partial. The determination seems to have been “robust” on a number of other fronts, including finding deception by a witness in their acquisition of British citizenship, and rejection of an independent social worker report as being “self serving”.

For what it is worth, the assumption underpinning a deception finding in the FTT determination that a marriage to a British citizen has to be subsisting for the applicant to qualify for naturalisation appears to me to be mistaken (see para 32 of UT determination). All that is required to qualify for section 6(2) BNA 1981 naturalisation, which is slightly quicker than section 6(1) naturalisation where not married to a British citizen, is that the marriage exists and has not been dissolved. If it is right that this mistaken assumption was the basis of the finding of deception then it appears there was an error of law in the FTT determination, albeit perhaps not hugely material given the other findings.

The official headnote:

  1. In an Upper Tribunal error of law decision that remits an appeal to the First-Tier Tribunal, a clear indication should be given if the appeal is to be re-made de novo. If that is not the case, the error of law decision should set out clearly the issues which require re-making and any preserved findings of particular relevance to the re-making of the appeal.
  2. As set out in BW (witness statements by advocates) Afghanistan [2014] UKUT 568 (IAC) at paragraph (v) of the headnote of that case: “(v) Where an advocate makes a witness statement in the circumstances outlined above, a change of advocate may be necessary, since the roles of advocate and witness are distinct, separated by a bright luminous line. An advocate must never assume the role of witness.”
  3. As stated in paragraph 44 of R (on the application of RK) v Secretary of State for the Home Department (Section 117B(6): “parental relationship”) IJR [2016] UKUT 31 (IAC), if a non-biological parent (“third party”) caring for a child claims to be a step-parent, the existence of such a relationship will depend upon all the circumstances including whether or not there are others (usually the biologically parents) who have such a relationship with the child also. It is unlikely that a person will be able to establish they have taken on the role of a parent when the biological parents continue to be involved in the child’s life as the child’s parents.
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Colin Yeo

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.