Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03639/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5th December 2016
On 29th December 2016

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

W H
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Sellwood, Counsel instructed by Paragon Law Solicitors
For the Respondent: Mr I Jarvis, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge R G Walters, promulgated on 22 September 2016, dismissing his appeal against the decision of the respondent to refuse his protection claim and to remove him from the United Kingdom made on 27 November 2015.
2. The appellant's case is that his father was killed in March 2015 and, although he did not know it at the time, it later transpired that his father had been a drug smuggler. Following his father's death drug smugglers came on several occasions to the appellant's family home seeking to recruit him into the smuggling business but they were chased off by his mother. The police also came to the appellant's family home asking about the father's activities and after several visits, it was decided that the appellant should flee the country and, with the assistance of agents, he was smuggled from Iran to Calais where he remained for about a month before entering the United Kingdom concealed in a lorry, claiming asylum on 24 July 2015.
3. The respondent does not accept the appellant's claim that his father had been killed, or that he was a drug smuggler or that he faced pressure to join a group of drug smugglers. The respondent did not find the appellant to be credible given a number of contradictions within his evidence.
4. The judge heard evidence from the appellant. He also had before him a bundle of material prepared by the appellant's solicitors including an expert report by Ms Roya Kashefi. The appellant was, at the hearing, represented by Ms J Anderson of Counsel; the respondent was also, on this occasion, represented by Counsel.
5. In his decision the judge noted [16] that the appellant was aged 17 when he arrived in the United Kingdom but had turned 18 on 1 January 2016.
6. He had had regard to the respondent's guidance on processing asylum claims for a child and UNHCR's guidance on child asylum claims [17]; and, that he had taken into account Ms Kashefi's report whom he accepted as an expert, noting that she had found the appellant's story consistent with the country evidence.
7. The judge found that: -
(i) the appellant had given inconsistent evidence as to whether his father had had a gun [18]-[24];
(ii) the appellant had been given inconsistent evidence as to whether he had seen his father's body [25]-[27]; and, the appellant had not given a valid reason or not knowing whether he had seen his father's body [28]-[29];
(iii) the appellant had been inconsistent in his explanations as to why he had decided to mention smuggling contrary to his uncle's advice [30]-[33];
(iv) the appellant had been inconsistent as to whether or not he had left his village before [34]-[38], the evidence being discrepant; and, had been inconsistent with the background evidence as to the colour of the uniform worn by the police who had attended the family home [39];
(v) the evidence given even allowing for possible errors with regard to interpretation [45]- [48] the evidence with regard to whether or not his father had had a gun was inconsistent;
(vi) bearing in mind that the appellant was 17 when interviewed but giving him all possible credibility he did not find him to be a credible witness given the number of inconsistencies and contradictions in the evidence, there being an attempt to strengthen and embellish his case as time went on [54];
(vii) the appellant had not given truthful evidence about his father's death and any involvement he may have had in smuggling [55], he did not accept that the appellant had left Iran illegally [56].
8. The appellant sought permission to appeal on the following grounds:-
(i) that the judge had failed to have proper regard to the relevant policies and guidance in assessing the appellant's age and credibility and that although referring to the guidance at [17] the judge had not applied this in his reasoning nor did he engage with the provisions in assessing the appellant's credibility more specifically;
(ii) that the judge had failed to give adequate reasons for rejecting Roya Kashefi's report with specific regard to the police uniform, the absence of a footnote or source not being of sufficient or proper reason to reject the evidence; and, that the judge had failed to take into account properly Ms Kashefi's evidence that his account was plausible and consistent;
(iii) that the judge had carried out an extensive cross-examination of the appellant during the oral hearing both during cross-examination and re-examination; that this did not amount to clarifying evidence and, this was contrary to the relevant guidance given in the case law; the judge's extensive cross-examination on the subject of the appellant's father's gun formed part of the judge's reasoning for rejecting credibility; and,that the judge had entered the arena thus giving rise to an impression of an unfair hearing.
9. On 7 November 2016 First-tier Tribunal Judge Chohan granted permission on all grounds noting:
"I grant permission to appeal, primarily on the basis that there may well have been a procedural unfairness during the proceedings and therefore an error of law. If the judge did indeed undertake extensive questioning of the appellant in respect of events which took place when he was a minor, then that issue has to be explored."
The Hearing on 5 December 2016
10. The appellant provided the following for the hearing:-
(i) Bundle 2 - supplementary bundle containing a witness statement from Ms J Anderson of Counsel exhibiting her record of the proceedings before the First-tier Tribunal.
11. I heard submissions from both representatives and reserved my decision.

Did the decision of the First-tier Tribunal involve the making of an error of law?
12. For the reasons set out below, dealing with the grounds in turn, I am satisfied that it did. I turn first to ground 3.
Ground 3
13. It is evident from the Record of Proceedings attached to Ms Anderson's witness statement, with which Mr Jarvis did not take issue, that at several points during cross-examination and indeed during re-examination the judge asked a number of questions which later formed the basis for findings of credibility adverse to the appellant. Much of the questioning in the appeal related to whether the appellant's father had had a gun; whether the appellant had seen this or was sure about this; and, the type of gun. It is evidence that a number of questions on this issue were asked in interview and the issue is referred to also in the appellant's statement. It is also clear that there are differences between what the appellant has said in his statement, in his interview and in his oral evidence. The judge dealt with this issue at significant length in his decision at [18]- [24] and again at [49]-[53]. A number of the points taken against the appellant in these passages arise out of questions put by the judge during the hearing. A number of these questions were, as Mr Sellwood submitted, closed questions and leading questions in the sense that they encouraged a yes or no answer. Mr Jarvis submitted that in reality the questions were only seeking further clarification and the judge seeking to know why the appellant had departed from what he had said. He submitted also that it was significant that there had in this case been no objection to the line of questioning made by Ms Anderson who had represented the appellant.
14. Mr Jarvis submitted that the questioning had not been unfair nor had it given rise to a perception of bias. He submitted that it could not have been considered by a person observing the proceedings, noting that there had been an objection, that the proceedings gave the impression of unfairness or bias on the part of the judge. Mr Sellwood submitted that on the contrary, there appears to have been no difference in the form and type of questioning between the judge and the Presenting Officer such that a reasonable person would not be able to discern the difference in roles giving rise to an appearance of bias and that thus the hearing was procedurally unfair.
15. Turning to the decision is IS (fair hearing - natural justice) Belarus [2004] UKIAT 00114 (which in return refers to the earlier decision in Oyono [2002] UKIAT 02034) which is summarised at [26]. In summary, the advice is that in general judges should remain silent where there is representation on both sides and the issue of matters arising out of evidence and the time for that is after re-examination and allow further questions arising to be put by the parties. It states, "a judge who intervenes during the course of evidence is running the risk that he will be seen to be taking the side of one party or the other".
16. The panel did, however consider that the guidelines were to be looked at in the context of the primary duty to manage the hearing to ensure that both parties have a fair hearing. It is stated [27] that:
"It is entirely appropriate for a judge to intervene during examination of a witness to ensure that the witness answers the question asked rather than takes the question as an opportunity to add matters which are either irrelevant or would be covered in any event in a proper examination or cross-examination."
17. As Mr Jarvis submitted this case is different from that in IS given that the hearing was considerably longer there [see 29]. It is, I consider with footing assessing at the opinion of the Court of Appeal in Maheshwaran [2002] EWCA Civ 173 [note to self - insert from paragraph 32 of IS].
18. Returning to SW (Adjudicator's questions) Somalia [2005] UKIAT 00037 it is noted, the issue was to fairness of the questioning of the appellant by the judge. Again I bear in mind that the issues are fact-specific and in this case the issue was the late reference to the death of the grandmother. It should also be borne in mind that there was no cross-examination in this case, there being no Presenting Officer. The appellant noted that this was very different [21] in a situation where the Home Office is represented.
19. Again it is noted that there was no objection from the appellant's Counsel at this point and it was noted that the grandmother's death was an entirely new issue which arose out of the blue [31]. The Tribunal also observed that the questions put in SW did not appear to have been asked as in cross-examination, are directly and openly pertinent to what was clearly an important point. [paragraph 28 from SW]
20. In this appeale the judge's questions began not long into cross-examination. The first question is: -
"Why did you decide to change your mind to tell people about the smugglers"? to which the appellant replied that his uncle had asked him not to say anything about the smuggling.
21. In the next question for the judge, it is put to the appellant that his uncle had told him not to tell anybody about the smuggling that he had done, and did not explain why he had decided to ignore the uncle's advice. The question is then repeated and then again the question is asked why did he change his mind. There appears to be no good reason why these questions could not have been asked by the respondent's representative nor at the conclusion of re-examination.
22. Further questions are put, including leading questions at page 7 of the transcript. The questioning resumes at page 10 when a number of questions are asked about the nature of the gun in which the appellant was asked how to describe his brother's gun and questions then asked about the nature of the word used as to whether it would be a pistol and what the appellant meant by that.
23. Whilst those questions are clarificatory and are unobjectionable, the following the question about what prevented him from seeing the gun and it had been good put to him that his father had let him handle it and asking if he was quite convinced that he had seen his father with a gun could not be described in this way. There is also clearly interruption in re-examination in that the judge took over re-examination including at one point stopping the appellant from giving evidence. Specifically, he was asked about his response about question 97 in the interview, the appellant saying that he had not in fact said what was answered there.
24. The issue here is whether the questions could either constitute unfairness in themselves or, as Mr Sellwood has sought to characterise the case, give rise to a situation where a fair-minded and informed observer, having considered the facts, would consider there is a real possibility that the Tribunal was biased. It is thus important at this stage to consider the decision in Singh v SSHD [2016] EWCA Civ 492 albeit in somewhat different circumstances arose in that case.
25. It should be borne in mind that it unfairness which is the focus in this appeal; it is under that rubric and in that context which ground 3 is framed. Much of the observations in Singh are of less relevance here not least that there is no dispute as to what was said so, rather, the issue is whether that was capable of giving rise to an impression of unfairness.
26. The principles to be applied relevant to the fair-minded observer are summarised in Resolution Chemicals v H Lundbeck [2013] EWCA Civ 1515 at [35]: -
35. The following principles relevant to this application are clear. First, the test of apparent bias is whether the fair-minded and informed observer, having considered the facts, would conclude that there is a real possibility that the tribunal was biased: Porter v Magill [2001] UKHL 67, [2002] AC 357 at [103] (Lord Hope). There is no difference between the common law test of bias and the requirements of an independent and impartial tribunal under Article 6(1) of the European Convention of Human Rights ("the Convention"): Lawal at [14] (Lord Steyn). Secondly, underlying both Article 6 of the Convention and the common law principles is the fundamental consideration that justice should not only be done but should manifestly and undoubtedly be seen to be done: R (McCarthy) v Sussex Justices [1924] 1 KB 256, 259. Thirdly, the fair-minded and informed observer is not unduly sensitive or suspicious, but neither is he or she complacent: Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416, at [2] (Lord Hope). Fourthly, the facts and context are critical. Each case turns on an intense focus on the essential facts of the case: Man O' War Station Ltd v Auckland City Council [2002] UKPC 28 at [11] (Lord Steyn). Fifthly, if the fair-minded and informed observer would conclude that there is a real possibility that the tribunal will be biased, the judge is automatically disqualified from hearing the case. The decision to recuse in those circumstances is not a discretionary case management decision reached by weighing various relevant factors in the balance. Considerations of inconvenience, cost and delay are irrelevant: AWG Group Ltd at [6] (Mummery LJ).
27. To these observations, it is noted also that in National Assembly for Wales v Condron [2006] EWCA Civ 1573 it was observed that the court must look at all the circumstances as they appear from the appeal before it, not just the facts known to the objectors or available to the hypothetical observer at the time of decision - see also Turner v Secretary of State for Communities and Local Government [2015] EWCA Civ 582.
28. Applying those principles to the facts of this case, I consider that there was an appearance of bias from the form in which the judge asked questions during cross-examination and, perhaps more importantly, during re-examination. Some of these questions were clearly in the nature of cross-examination, and were closed questions. As is noted above, on viewing the transcript, it is difficult to discern which were questions put in cross-examination and which were questions put by the judge.
29. Given that the answers to those questions formed the basis of a number of the adverse findings of credibility, the number of the questions asked and their nature, I consider that a fair-minded observer would have concluded that there was a possibility that the First-tier Tribunal was biased, given that in an adversarial process, the judge appeared to have taken on the role of the respondent.
Grounds 1 and 2
30. As I have found that ground 3 is made out, and that the hearing before the First-tier Tribunal was procedurally unfair, on that basis alone it is necessary to set aside the decision of the First-tier Tribunal. It is therefore unnecessary to consider these grounds.
Conclusion
31. For the reasons set out above, the decision of the First-tier Tribunal did involve the making of an error of law, and I set it aside. As the error identified resulted in there not being a fair hearing, it must be remitted to the First-tier Tribunal for a fresh decision on all issues.
SUMMARY OF DECISION
1. The decision of the First-tier Tribunal involved the making of an error of law and I set it aside.
2. I remit the appeal to the First-tier Tribunal for a fresh decision on all issues. None of the findings of the First-tier Tribunal are preserved.
3. I maintain the anonymity order made by the First-tier Tribunal.

Signed Date: 23 December 2016

Upper Tribunal Judge Rintoul