Appellants who appear before Immigration Judges are human beings: their humanness does not cease the minute they enter the Tribunal venue building so as to be picked up again upon leaving the venue.
Appellants need to be treated with dignity, fairness and respect: at all times during proceedings and by ALL persons present.
An Immigration Judge can be stated to have a considerable degree of power over an Appellant’s life. This is because some of the appeals they consider involve life and limb, in particular claims from Appellants seeking protection as well as claims which involve issues of family life separation matters where young children are involved. With that knowledge and having at their grip the power to allow or dismiss an appeal, it surely does not take much for an Immigration Judge to ensure that during proceedings a measure of fairness is accorded to an Appellant at all times.
Although the fresh decision in Elayi (fair hearing – appearance)  UKUT 508 (IAC) is very much welcome in seeking to reiterate the obvious, “Justice must not only be done but must manifestly be seen to be done”, there are issues as set out below regarding the deficiencies within that judgment.
The decision in Elayi:
The issues relevant in Elayi are as follows in summary:
The decision on behalf of the Secretary of State giving rise to the appeal before the Upper Tribunal was made on 26 January 2015. By this decision the Secretary of State refused the application of the Appellant for leave to remain in the UK under Article 8 of the Human Rights Convention. The decision letter asserted that the Appellant had previously undergone an English language proficiency test and that the organisation ETS had conducted a review of the Appellant’s test. ETS, was stated to have confirmed that the Appellant’s test certificate had been “obtained through deception.” The date of the test was 19 October 2011. The basis of the refusal decision by the Home Office was that the Appellant, in making his application for leave to remain on 21 December 2011 had relied on false information, representations or documents, namely his TOEIC proficiency certificates. On appeal before the First Tier Tribunal, the Appellant’s appeal was dismissed. He appealed to the Upper Tribunal. The Upper Tribunal concluded that the Appellant’s appeal succeeded on the basis that he was denied a fair hearing such that it was appropriate to remit the case to the First-tier Tribunal for the purpose of a fresh hearing and decision.
The three grounds upon which the Appellant’s permission application succeeded were:
The conduct of the hearing by the Judge at first instance;
The Secretary of State’s decision failed to recognise that the conclusion that the Appellant’s 2011 leave to remain application had contravened a provision of the Rules, namely a requirement of candour and honesty, did not lead inexorably to the further conclusion that the application had to be refused. Rather there was a discretion to be exercised;
The Judge’s treatment of the so-called “generic” evidence.
The Upper Tribunal’s considerations as regards the First Tier Tribunal Judge’s conduct are more interesting:
“5. We have concluded that this appeal succeeds on the following grounds. The first relates to the conduct of the hearing by the Judge at first instance. This conduct is described in the Appellant’s further witness statement dated 08 September 2015 and specifically paragraph 2 thereof. In this document the Appellant describes conduct which may, uncontroversially, be described as unconventional and unorthodox. There is no dispute about what is recounted in this statement and indeed it is corroborated by the Appellant’s spouse in her separate and further witness statement.
6. In summary, the Judge (a) engaged in a private conversation with the Appellant’s representative (b) in the absence of the other party’s representative (c) in the precincts of the court room (d) partly out of sight and earshot of the Appellant and his spouse (e) in a setting other than that of bench/bar (f) before the Appellant’s hearing began (g) relating to the Appellant’s case and, finally, (h) the contents whereof, other than a question about the Appellant’s religious adherence, itself an improper enquiry made in this fashion, were not divulged to the Appellant.
8.We conclude without hesitation that the undisputed conduct of the Judge offends against the principles rehearsed in Alubankudi. It was manifestly not redeemed by the religious adherence issue raised by the Judge during the hearing. The appearance of fairness principle was very clearly contravened. The hypothetical observer would, in our judgement, be gravely disturbed by the events under scrutiny. The crucial elements of a due, orderly and impartial judicial process were all lacking.”
The problem with the Upper Tribunal’s judgement in Elayi:
The relevant issue is not that the name of the Immigration Judge was withheld- that is irrelevant as what is in issue is conduct. The reader is left with no idea with what it is the Immigration Judge is supposed to have said and in what context. Why has the Upper Tribunal left out full details of his deprecated conduct and left the reader to speculate? It is one thing to leave out the Judge’s name but quite another in effect to refer to a “ whole lot of nothings” at paragraph 6 of the judgement, regarding the Judge’s conduct and yet reach the conclusions that “The appearance of fairness principle was very clearly contravened”.
Why give only an indecipherable “ summary” of the Judge’s conduct rather than detail it more so where the Judge has the benefit of their name being withheld?
The Upper Tribunal in Elayi referred to their own earlier decisions, however it is very clear from those decisions what it is that was being alleged to have given rise to an appearance of unfairness/bias:
Alubankudi (Appearance of bias)  UKUT 542 (IAC):
“5.Permission to appeal was granted in the following terms:
“The decision as a whole displays cogent evidence based reasoning. However, the grounds argue bias and lack of a fair hearing rooted in the Judge’s remark at paragraph 51 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’. While this by no means discloses any clear error of law, particularly taken against the content of the rest of the decision, the need for justice to be seen to be done on balance renders the ground arguable.“
10.The question in this appeal is whether the decision of the FtT is vitiated by apparent bias and, hence, unsustainable in law by reason of the passage quoted in  above. We are satisfied that the assessment of the hypothetical fair minded, reasonable and properly informed observer would be as follows. First, there is no suggestion (much less any evidence) that the Judge has, or had, any predisposition against persons such as this Appellant or is anti-immigrant or anti-immigration generally. Second, as the permission Judge noted, the determination, read as a whole, displays ” cogent evidence based reasoning”. …………..We observe that the presence of any of these vitiating elements could, in principle, lend sustenance to the Appellant’s complaint of apparent bias. However, none is evident.
11.The hypothetical observer would also note the balanced, considered and neutral terms in which the Judge has expressed himself in a series of important passages……….These passages embody statements which are unexceptional, considered and balanced”.
MM (unfairness; E & R) Sudan  UKUT 105 (IAC), provides:
“7. The grant of permission to appeal to the Upper Tribunal was based on a piece of evidence which was not considered at first instance. This consists of a letter dated 9th April 2013 addressed by the Appellant’s solicitors to the UKBA North West Enforcement and Compliance Division in Liverpool. At the outset, we record our finding that, having considered all the evidence and the representations of both parties, we are satisfied that this letter was transmitted by fax on the date which it bears, 9th April 2013 and received by the addressee on that date. We shall describe this document hereinafter as “the solicitor’s letter”.
13. Permission to appeal to the Upper Tribunal was granted on the sole ground that the solicitor’s letter was neither mentioned nor produced at the first instance hearing. The Judge granting permission considered this to be an arguable “procedural irregularity”.
At paragraph 22 the Upper Tribunal concluded as follows;
“We consider it important to emphasise that in appeals of the present kind the criterion to be applied is not that of reasonableness. In this respect, the present case is a paradigm of its type. Judge Levin’s conduct of the hearing at first instance was beyond reproach…… The judge cannot possibly be faulted for the non-emergence of the solicitor’s letter. On any showing, the judge acted responsibly and reasonably throughout. However, as the authorities demonstrate clearly, the criterion to be applied on review or appeal is fairness, not reasonableness”.
And paragraph 24:
“We apply the principles rehearsed above to the matrix of this appeal in the following way. The solicitor’s letter was, on any showing, an important piece of evidence……..The Judge made a positive finding that there was no such letter. Building on this finding, he found that this reinforced “a material inconsistency”, namely the evident discrepancy between the contents of the asylum interview record and the Appellant’s witness statement. The Judge plainly disbelieved the Appellant’s claim concerning her instructions to her solicitors and their response that they would write a letter. This belief was founded substantially on a mistake of fact, namely the erroneous belief that no such instructions had been given by the Appellant and no such letter had been written. When one considers the key passages in paragraphs  –  in their full context, the conclusion that this was a material error is inescapable. The Judge, in terms, found the Appellant to be mendacious and this became one of the important building blocks in his overall assessment that her claims were not worthy of belief. The resulting unfairness to the Appellant is palpable”.
25. The pivotal importance of the error of fact upon which the reasoning of the judge was demonstrably based helps to explain why, in appeals raising issues of international protection, there is room for departure from an inflexible application of common law rules and principles where this is necessary to redress unfairness. …..Plainly that cannot be said here because the letter was written by the very solicitors who were presenting the case before the Tribunal and so it was available………..We consider that this appeal must succeed accordingly”.
The respective Immigration Judges’ conduct complained of in Alubankudi and MM was clearly set out by the Upper Tribunal and the basis of their reasoning justifying their conclusions with that particularised conduct in mind is clear…………but not so in Elayi.
It was important that the detail of the Immigration Judge’s exact conduct be disclosed – in light of the judgment in Elyai and the heavy criticism levelled against the Judge, how else is justice to be manifestly seen to be done unless through that criticised conduct, the mind-set and thoughts of Judges found to have unfairly adjudicated upon affairs of immigrants is also known?