Sivapatham (Appearance of Bias) [2017] UKUT 00293 (IAC) is a vivid illustration of what is required to overturn a Tribunal decision when alleging bias, (a topic I’ve previously covered following a recent Court of Appeal decision).

President McCloskey of the Upper Tribunal found that there was a real possibility that the Immigration Judge was biased. The decision was set aside and the case sent back for a rehearing before a different Judge.

The Appellant’s lawyer’s account of the Immigration Judge’s conduct reads like a grotesque caricature from a judicial handbook entitled “How not to behave when you are sitting in Court”:

…the Judge appeared to be in no mood to listen to me but seemed to have firmly made up his mind; that this case was a non-starter.

Things didn’t get much better from there:

I also informed the Judge of the Appellant’s right to be heard… [the Judge] then retorted the following: “Don’t lecture to me the principles of natural justice.”

At this stage, a more reflective Judge might have taken some time out, had a breath of fresh air and promptly recused themselves from sitting in the case. But not this Judge, who pressed on, heard the appeal and later dismissed it.

Inevitably, the Appellants complained of the appearance of bias and went to the Upper Tribunal.

Those interested in the mechanics of bias appeals should read §§ 13 to 16 of the Upper Tribunal’s judgment, which builds on the Court of Appeal’s guidance in Singh v Secretary of State for the Home Department [2016] EWCA Civ 492.

In this case, the Judge’s response to the bias allegations were pretty vague. The Judge didn’t deny saying the things that were attributed to them by one of the Appellants and their lawyer.

Not for the first time, the value of having a good contemporary note of what went on in the Tribunal was at the crux of the case.

The Judge also made further errors by:

  • Refusing to allow the Appellants to call relevant witnesses (in this case children) and thus denying them a fair hearing [see § 23 and 25]; and
  • Assuming that Appellants require the Tribunal’s permission to call relevant witnesses. They don’t. [See § 24 and 25].

Not the most re-assuring case in terms of the quality of decision-making in the First-tier Tribunal, but ultimately a good outcome that wipes the slate clean in the interests of fairness and justice.

Posted by Ben Amunwa

Founder and editor of Ben is a commercial and public law barrister with The 36 Group. He gives expert legal advice on employment, public law and commercial disputes to a wide range of clients.

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