Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/11728/2016

THE IMMIGRATION ACTS

Heard at Field House
Determination & Reasons Promulgated
On 14th March 2017
On 11th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

mr Md Musleh Uddin Chowdhury
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Karim (Counsel)
For the Respondent: Ms Ashika Figiwala (HOPO)

DETERMINATION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge Miller, promulgated on 10th June 2017, following a hearing at Taylor House on 14th December 2016. In the determination, the judge dismissed the appeal of the Appellant, whereupon the Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
2. The Appellant is a male, a citizen of Bangladesh, who was born on 31st January 1980. He appealed against the decision of the Respondent Secretary of State dated 10th October 2016 refusing his application for asylum and humanitarian protection on the basis that if returned to Bangladesh he would be killed due to his political opinion as a member of the Bangladesh National Party (BNP).
Submissions
3. At the hearing before me on 14th March 2017, Ms Figiwala appearing on behalf of the Respondent, submitted, that having considered the grounds of application, and having discussed this matter with Mr Karim for the Respondent, she was content to concede that there had been a procedural unfairness or irregularity in this appeal, in that the judge had expressed himself in a manner that may lead to an appearance of unfairness. Two essential matters had been raised in the grounds of application.
4. First, that the judge had questioned the Appellant how it was, that having been in the UK for eleven years, he was not conversant in English enough so as to enable him to give evidence without the aid of interpreters, stating that it was a matter of some amazement to him that the Tribunal spends so much money on interpreters in such circumstances.
5. Second, that in the Appellant’s re-examination, the judge had questioned his Counsel’s indication that in re-examination he would take twenty minutes, following which Counsel had to explain that this was necessary in view of the matters raised in the Home Office cross-examination by the Presenting Officer.
6. Permission had been granted on 30th January 2016 on the basis of the case of Elayi [2016] UKUT 508 which stood as authority for the proposition that justice must not only be done but manifestly must be seen to be done and there was a perception of bias or of procedural unfairness here such that would have been capable of making material difference to the outcome of the proceedings.
7. At the hearing, I made it clear to both representatives that in themselves, the comments made by the judge did not necessarily lead to a reasonable apprehension of bias on the part of the judge in the conduct of the proceedings. Mr Karim, appearing on behalf of the Appellant, submitted that the Home Office Presenting Officer’s own notes referred to how it was that the judge had said to Counsel appearing on that day that he should “hurry it along” when it came to his side of the conduct of the appeal.
8. I explained to the parties before me that this still did not necessarily lead to a reasonable apprehension of bias. First, it is all too well-known that parties to an appeal, even when fluent in the English language, choose, for reasons that are understandable sometimes, to have a state appointed interpreter, and judges may well express an opinion on this, and not least because it may go to the whole question of integration into British society while they have been here, and the plausibility of the eventual claim. But in any event, there is no indication in the determination that the judge did not allow the use of a interpreter in the manner that the Appellant wanted.
9. Second, as far as the comment on requiring twenty minutes for re-examination was concerned, there is again no indication whatsoever, that the judge intervened to prevent such re-examination taking place over a period of twenty minutes. It is, moreover, not a remiss of the judge to ask a party to confine themselves to the material issues. This brings me to the third point.
10. Thirdly, the fact that the judge may well have said “hurry it a long” to Counsel is not in any way suggestive of there being an appearance of bias because something that may well be disposable in a few minutes, could be handled in a manner that takes far longer, leading to the judge asking a representative to be clear, brief, and to the point. Brevity is a virtue in litigation.
11. To this, Mr Karim pointed out that the judge did also, when considering the presence of the Appellant’s three brothers in Bangladesh, state:
“What I don’t understand is, his three brothers who are politically active in Bangladesh having been killed, why would he be killed.” (At paragraph 41(ii)).
12. Given, however, that Ms Figiwala has conceded that there is a reasonable perception of procedural unfairness and irregularity, I allow the appeal of the Appellant, and it is unnecessary for me to decide this matter any further.
13. It is appropriate in these circumstances that I remit the matter back to the First-tier Tribunal, to be determined by a judge other than Judge Miller, in accordance with practice statement 7.2(a), and I so do.
Error of Law
14. The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is remitted to the First-tier Tribunal to be determined by a judge other than Judge Miller on a de novo basis.
15. No anonymity order is made.

Signed Date

Deputy Upper Tribunal Judge Juss 7th April 2017