Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08235/2013

THE IMMIGRATION ACTS

Heard at Field House
Decision sent to parties on
On 17 January 2017
On 07 February 2017

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

r v (Sri lanka)
(anonymity order made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: In Person
For the Respondent: Mr N Bramble, a Senior Home Office Presenting Officer

DECISION AND REASONS
Anonymity
The First-tier Tribunal made an order pursuant to Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. I continue that order pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008: unless the Upper Tribunal or a court directs otherwise, no report of these proceedings or any form of publication thereof shall identify the original appellant, whether directly or indirectly. This order applies to, amongst others, all parties. Any failure to comply with this order could give rise to contempt of court proceedings.
1. The appellant appeals, effectively with permission granted by the Court of Appeal, against the decision of the First-tier Tribunal Judge Manuel, dismissing his appeal against the respondent's refusal to grant him refugee recognition. The appellant appears in person today, accompanied by his Catholic priest, the Reverend Peter Morgan, who was a witness for him at the First-tier Tribunal.
2. The basis of the appellant's challenge to Judge Manuel's decision in 2014 is that as a person of Sinhalese ethnicity, she is biased against all Tamils. He complains that she made adverse remarks about having disallowed a great many Tamil appeals already, and notes that between the adjourned hearing in December 2013, and the resumed hearing in January 2014, the Judge took her annual leave in Sri Lanka. The appellant's view is that 'he could not have justice from a Sinhalese Judge', even if she is now a British citizen. The Reverend Morgan's evidence is to the same effect: he is emphatic about the allegations as to the Judge's manner, and what she is alleged to have said.
3. Those are very serious allegations against an experienced Judge, who has taken the judicial oath. The Judge has since retired and this may have been one of the last cases on which she sat. The Judge has not had an opportunity to comment on these allegations, since efforts to contact her in retirement have been unsuccessful. If she is asked now about the case, it is most unlikely that the Judge will remember whether she made the observations relied upon, 3 years ago.
Procedural history
4. This application has been in the system a very long time. The appellant made his asylum claim to the respondent in November 2007 and it was refused on 24 February 2009. The appeal was heard before Judge Manuel on 5 December 2013 and 14 February 2014, and may well have been one of the last cases she heard before she retired. Permission to appeal to the Upper Tribunal was granted and on 2 July 2014, Upper Tribunal Judge Rintoul dismissed the appellant's appeal and upheld the decision of Judge Manuel.
5. The appellant appealed to the Court of Appeal which, on 26 October 2016, allowed the appeal for the reasons set out in the statement of reasons quashing the decision of the Upper Tribunal in relation to the fourth ground of appeal only, the appearance of bias. In its statement of reasons, the Court of Appeal noted that the case was to be remitted to the Upper Tribunal, the scope of the remittal being limited to the issue of bias and at paragraph 7 the Court continued
"If upon remittal the Upper Tribunal concludes that the decision of the First-tier Tribunal was tainted by the appearance of bias the parties agreed that the appropriate course would be for the appellant's appeal to be heard de novo. The parties considered that it would be desirable for a case management hearing to take place in the case in order for the Tribunal to give consideration to what evidence is necessary in order to determine fairly the allegation of bias and make constant directions."
6. That is the unsatisfactory basis on which this appeal comes before me for a case management review, over 9 years after the original application was made, and 3 years after the decision of which the appellant complains.
7. After discussing the matter with both parties I have, reluctantly, concluded that in these circumstances the proper outcome is for the appeal to be remitted to the First-tier Tribunal to be heard completely afresh. The limitation relating to the allegation of bias will not be operative if it is heard afresh and all grounds may then be argued.
8. The appeal decision will be remade in the First-tier Tribunal on a date to be fixed, with no findings of fact or credibility preserved.

Signed: Judith A J C Gleeson Date: 6 February 2017
Upper Tribunal Judge Gleeson