It appears that there is currently no Tribunal Rule nor other Practice Direction issued in the Upper Tribunal (Immigration and Asylum Chamber) dealing with conduct or alleged bias on the part of an Immigration Judge. The Court of Appeal in Singh v The Secretary of State for the Home Department [2016] EWCA Civ 4, although finding in that particular case that the allegation of bias against an Immigration Judge had not been made out, offered in a postscript, some suggestions stated to be neither prescriptive nor exhaustive on how to address the issues. The Court of Appeal’s view was that if this kind of appeal is to become more prevalent in this context then it would be much better for the Chamber Presidents, with their specialist expertise and their knowledge of the practicalities and in conjunction with the Senior President of Tribunals as appropriate, to decide whether or not to formulate any Practice Direction or Practice Statement or Guidance Note which may be considered necessary or desirable.
In Singh, an appeal reached the Court of Appeal with the argument being focused on an assertion of apparent bias. It was said that the First-tier Tribunal Judge made remarks at the outset of the appeal hearing before him which indicated that he had a closed mind and/or had prejudged the appeal. The argument was that the hearing was in consequence unfair.
So what is it that the First Tier Tribunal Judge was supposed to have said?
In the course of his appeal, the Appellant sought to rely on the 14year long residence rule. The Appellant’s appeal was heard on 19 February 2014 in the First Tier Tribunal, however it was only on 7 March 2014 that the relevant Advocate who appeared on the Appellant’s behalf made a statement which said this:
” I was the advocate at the above appellant’s hearing on 19th February 2014 at Hatton Cross before Immigration Judge Cohen instructed by Gramdan Solicitors.
At the beginning of the hearing I handed my skeleton argument to IJ Cohen. He addressed the appellant in the usual way and introduced himself. During his introduction he stated to the appellant that he did not agree with my skeleton argument that documentary evidence was of lesser importance in such appeals. In his view documentary evidence was of utmost importance and the absence of documentary evidence could not satisfy him that the appellant had been in the UK. He went on to say that if I did not agree with him then I could appeal his decision.
In my view the IJ’s comments were wholly inappropriate as he was addressing the appellant before hearing any evidence and giving a clear indication that he had already made his decision. The IJ’s comments visibly unsettled the appellant.
During the course of the hearing the IJ continually interrupted both examination in chief and cross examination to ask his own questions to the appellant. The IJ was aggressive in his tone and manner, which I believe affected the evidence of the appellant”.
What were the Court of Appeal’s observations?
Although the appellant was being represented by a new firm of Solicitors, the Advocate, Mr Aslam, was not tendered to give oral evidence in the Upper Tribunal. No explanation was provided.
The appellant himself put in no witness statement and gave no evidence about what had happened at the first hearing or to support Mr Aslam’s assertions about the impact on the appellant.
The Upper Tribunal was given no information, either in the form of a statement or note or even on instructions, of the recollections of the Home Office advocate who had appeared before the First Tier Judge.
Although the First Tier Judge had provided a Note dated 22 July 2014, the Note, or any copy, could no longer be located. The Upper Tribunal seemed to have misplaced it. When eventually contacted on this, the First Tier Judge himself by then no longer had retained any of his papers. The parties had no copy. The Court of Appeal was thus reliant on the Upper Tribunal Judge’s description of that Note.
What was the summary of the First Tier Judge’s Note?
The Upper Tribunal Judge’s description was this:
“The Judge replied, and I have a note dated the 22nd July 2014. He noted that there had been in fact no complaint about his behaviour to the Resident Judge at Hatton Cross and it follows obviously therefore no application to the First-tier that the hearing should simply be reheard by somebody else. He confirms that he had stated to the Appellant and the representative that in long residence cases documentation was of great importance as one would expect someone who had resided in the UK for fourteen years to have gathered significant documentation during that time, although I recognise that for someone [not] residing in the UK legally documentation may be more difficult to produce. He addressed both the Appellant and the representatives. Obviously if there was a disagreement then that would lead to an appeal.”
The Court of Appeal’s considerations and conclusions:
- The Court noted that the arguments being advanced before them were that , Mr Aslam’s statement showed that the initial remarks to the appellant by the First Tier Judge– made before any evidence had even been received – were, such as to give rise to a reasonable apprehension of bias. Such remarks gave rise to a perception, that the Judge had either prejudged the case or had a closed mind. The Judge was indicating at the outset a settled view that the lack of documentation was fatal to the case: and the subsequent determination was simply the product of a mind which had been closed. The Judge’s views were not stated to be preliminary or provisional and were expressed in unqualified terms: as reinforced by the reference to appealing.
- The Court of Appeal considered that the relevant principle and required approach was conveniently encapsulated in Porter v Magill [2002] 2 AC 357, [2001] UKHL 67. The ultimate question was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.
- In general terms, there need be no bar on robust expression by a judge, so long as it is not indicative of a closed mind. 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.
- It is necessary to consider the proceedings as a whole in engaging in the objective assessment of whether there was a real possibility that the tribunal was biased.
- It was regrettable that the way in which this case was dealt with below meant that the Court of Appeal was in effect being required to construe the witness statement of Mr Aslam as though it were some statute or commercial contract. The statement was made some two weeks after the hearing. It will have been based on Mr Aslam’s recollection (he exhibited no contemporaneous note). He did not purport to set out the precise words which the First Tier Judge used; nor did he make clear if what was said was all said in one go or whether it was the product of an exchange.
- In circumstances such as these, the actual words used, just as much as the context and manner in which they are said, are all important. The Court could see no objection at all to the First Tier Judge stating, and at any early stage, that he did not agree with Mr Aslam’s submission in his skeleton argument that documentary evidence was of lesser importance in these kinds of appeal. Not only was that a perfectly proper view for the Judge to hold, it was entirely in order for him so to say with a view to avoiding any misapprehension on the part of Mr Aslam in thereafter conducting the appeal to the appellant’s best advantage.
- The appellant himself, had given no evidence as to his understanding, of what the First Tier was saying.
- What Mr Aslam sought to say was also not consistent with the actual promulgated determination. It may be that there are cases where the statements or behaviour, as established, of a judge at the earlier stages of a hearing are such that they simply cannot be retrieved by the ultimate judgment itself. But reference to that judgment may, as in this case, be appropriate where the court considering an allegation of bias is seeking to ascertain the precise words which have given rise to the allegation. The promulgated determination of itself cast doubt on the accuracy and completeness of Mr Aslam’s recollections.
- The approach advanced on behalf of the appellant scarcely acknowledged a judge’s proper functions in accordance with his judicial oath.
- It was aslo a noteworthy and relevant point that it seemed that Mr Aslam at no stage at the hearing sought to protest or to ask the First Tier Judge to recuse himself. Nor was any subsequent application made to have a re-hearing.
- Ultimately it is for an appellant to show, on the facts, that there is a real possibility of bias, applying the objective test set out in Porter v Magill. The witness statement of Mr Aslam, unsupported by any supplementary evidence of Mr Aslam or any evidence of the appellant himself and when set in the context of the First Tier Judge’s own Note (as summarised by the Upper Tribunal Judge ) and in the context of the proceedings taken as a whole, in the Court’s judgment was insufficient to show a real possibility of bias.
Conclusion
The Court of Appeal’s message is quite clear- when seeking to make allegations of bias on the part of an Immigrations Judge, a party must take up such an approach and progress it fully prepared in all material aspects.
A view that the Home Office Presenting Officer will subsequently “back up” what happened at a particular hearing is misplaced unless perhaps, the complaint is put forward on the same day or very soon after the hearing. As it emerged in Singh, when the Presenting Officer was contacted for a re- collection of the events at the hearing, the Court of Appeal noted that it was wholly unsurprisingly, that she now had no recollection of events at the hearing before the First Tier Tribunal Judge.