Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001496
First-tier Tribunal No: PA/59935/2024
LP/02926/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 6th of July 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE HILLS

Between

RHM
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Heybroek, Counsel instructed by Barnes, Harrild & Dyer
For the Respondent: Ms Clewley, Home Office Presenting Officer

Heard at Field House on 27 May 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellant is a citizen of Iraq, from the Kurdish Region of Iraq (“KRI”). He appealed the decision of the respondent to refuse his asylum claim to the First-tier Tribunal (“FtT”).
2. The basis of the appellant’s claim is that he fears he will be persecuted for reasons of his imputed or actual political activity and opinions, both in Iraq and the UK. He further claims that the respondent’s decision breached Articles 2 and 3 of the European Convention on Human Rights and was a disproportionate interference with his Article 8 rights.
3. The FtT Judge dismissed the appeal on asylum and humanitarian protection grounds, and on human rights grounds.
4. The appellant now appeals to the Upper Tribunal. Given the nature of the appeal, I have decided it is appropriate to maintain the anonymity order.
Grounds of Appeal
5. The appellant advances three grounds of appeal, namely:
a. The FtT Judge “entered the arena” in cross-examining the appellant in a manner which arguably indicated a possible appearance of bias against him and which was manifestly unfair;
b. The FtT Judge made findings and comments that were not reasonably open to him in light of the evidence; and
c. The determination overall arguably demonstrates a starting point of disbelief rather than an assessment of credibility to the lower standard. Further, the FtT Judge, despite citing the relevant authorities in respect of credibility, has arguably not applied the lower standard of proof to the evidence.
6. Permission to appeal was granted by the FtT. The reasons for decision note that the grounds principally assert that the FtT Judge erred in the conduct of the hearing by entering the arena. While additional points are raised concerning the findings made on the evidence, the primary basis of the application, and the main reason asserted, is the FtT Judge’s conduct during the hearing, which is claimed to render the decision unsound and to be a material error of law.
7. At the hearing before me, the representatives’ submissions focussed primarily on the first ground of appeal. The appellant does, however, rely on all grounds.
The Law
8. The parties referred to the decision of the Upper Tribunal in Elais (fairness and extended family members) [2022] UKUT 300 (IAC). That decision considered whether a hearing before the FtT was fair based on the conduct of the FtT Judge. The decision rightly points out that allegations of this sort will always be sensitive, regardless of which party raises them and it is necessary for the Upper Tribunal to approach them with the utmost care.
9. Elais provides a summary of the law in relation to bias and unfairness at [25] to [37]. Those paragraphs read:
“25. The grounds of appeal allege bias and unfairness. As the Supreme Court held in Serafin v Malkiewicz [2020] UKSC 23 at [38], it is important to distinguish the two; although they overlap, they are distinct. A hearing may be unfair for any number of reasons, including as a result of the conduct of the judge, without there being any suggestion of actual or apparent bias. If there is the appearance of, or actual, bias that will have rendered the hearing unfair, but the primary error of law will be the actual or apparent bias.
26. The test for establishing unfairness differs from determining the presence of the appearance of bias. Whether a hearing was fair is an objective judicial question; either the hearing was fair, or it was not. By contrast, the question of whether there is the appearance of bias is determined by asking whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased: Porter v Magill [2001] UKHL 67 at [103] per Lord Hope.
27. The working definition of bias accepted by the Supreme Court in Serafin was taken from Bubbles and Wine Ltd v Lusha [2018] EWCA Civ 468, in which Leggatt LJ said, at [17]:
"Bias means a prejudice against one party or its case for reasons unconnected with the legal or factual merits of the case."
Bias and preliminary judicial indications
28. As to the propriety of a judicial preliminary indication and its relationship to the appearance of bias, in Arab Monetary Fund v Hashim (1993) 6 Admin LR 348, Sir Thomas Bingham MR held:
"…the English tradition sanctions and even encourages a measure of disclosure by the Judge of his current thinking. It certainly does not sanction the premature expression of factual conclusions or anything which may prematurely indicate a closed mind. But a Judge does not act amiss if, in relation to some feature of a party's case which strikes him as inherently improbable, he indicates the need for unusually compelling evidence to persuade him of the fact. An expression of scepticism is not suggestive of bias unless the Judge conveys an unwillingness to be persuaded of a factual proposition whatever the evidence may be."
29. In Harada Ltd v Turner [2001] Civ 599 at [31], Pitt LJ identified the importance of preliminary judicial indications in directing the parties to the focus on the issues of greatest concern to the judge:
"Provided a closed mind is not shown, a judge may put to counsel that, in the view of the judge, the counsel will have difficulty in making good a certain point. Indeed, such comments from the Bench are at the very heart of the adversarial procedure by way of oral hearing which is so important to the jurisprudence of England and Wales. It enables the party to focus on the point and to make such submissions as he properly can."
30. The headnote to Sivapatham (Appearance of Bias) [2017] UKUT 293 (IAC) summarises the relevant principles in these terms:
"(i) Indications of a closed judicial mind, a pre-determined outcome, engage the appearance of bias principle and are likely to render a hearing unfair.
(ii) Provisional or preliminary judicial views are permissible, provided that an open mind is maintained."
31. In summary, the common law tradition of the courts and tribunals in England and Wales (and, indeed, the United Kingdom as a whole) values dialogue between the parties and the Bench. The purpose of preliminary indications is not for the judge to indicate a closed judicial mind, or a predetermined outcome. Rather it is to enable the parties to focus on the issues of greatest concern to the judge. Preliminary indications may enable the parties to make submissions on the essential issues that, in the judge's preliminary view, lie at the heart of the case, and which may present the greatest obstacles to a party's case. Provided a judge maintains an open mind to the conduct of the hearing and the determination of the issues, there can be no objection to the judge giving an indication of the tribunal's preliminary or provisional judicial view.
The fairness of a trial
32. In Serafin, the Supreme Court held that the leading authority on inquiry into the unfairness of a trial remains the judgment of the Court of Appeal in Jones v National Coal Board [1957] 2 QB 55. Mrs Jones' husband had been killed in a mining accident. She brought proceedings against the National Coal Board. Her claim was dismissed at first instance. She appealed on the basis that the judge, Hallett J, had adopted an overly interventionist approach to cross-examination. He prevented questions from being put on behalf of Mrs Jones to the defendant's witnesses and took over large parts of the examination himself. The Coal Board made similar complaints to the Court of Appeal. Denning LJ said, at page 65, that:
"…such interventions should be as infrequent as possible when the witness is under cross-examination. It is only by cross-examination that a witness's evidence can be properly tested, and it loses much of its effectiveness in counsel's hands if the witness is given time to think out the answer to awkward questions; the very gist of cross-examination lies in the unbroken sequence of question and answer. Further than this, cross-examining counsel is at a grave disadvantage if he is prevented from following a preconceived line of inquiry which is, in his view, most likely to elicit admissions from the witness or qualifications of the evidence which he has given in chief."
33. It is often said that a judge must not "descend into the arena". The phrase is said to find its origins in this context in Yuill v Yuill [1945] P. 15, 20 per Lord Greene MR. Denning LJ said in Jones, at page 65:
"If a judge, said Lord Greene, should himself conduct the examination of witnesses, he, so to speak, descends into the arena and ' is liable to have his vision clouded by the dust of conflict '." (emphasis added)
34. The phenomenon of judicial vision being "clouded by the dust of conflict" was illustrated in London Borough of Southwark v Kofi-Adu [2006] EWCA Civ 281. In contrast to Jones, the focus of the court was less on whether the judge's conduct prevented the parties fully from participating in the proceedings (although the court was highly critical of the trial judge's attitude towards one of the barristers), but rather concerned the judge's descent into the arena through extensive participation in cross-examination, which impaired his ability to perform his role properly. The court found that certain of the judge's findings were irrational. He failed to take into account the oral evidence that had been given, despite his own extensive participation in cross-examination, and had based his findings almost entirely on the written evidence, with minimal if any regard for what had happened during the trial. At [146], Jonathan Parker LJ identified the consequences from a judge falling into such error in these terms:
"It is, we think, important to appreciate that the risk identified by Lord Greene MR in Yuill v Yuill does not depend on appearances, or on what an objective observer of the process might think of it. Rather, the risk is that the judge's descent into the arena (to adopt Lord Greene MR's description) may so hamper his ability properly to evaluate and weigh the evidence before him as to impair his judgment, and may for that reason render the trial unfair…" (emphasis supplied)
35. In Serafin, the judge's extensive interventions aimed at the Claimant litigant in person were characterised by the Supreme Court as a "barrage of hostility", which had been "fired by the judge in immoderate, ill-tempered and at times offensive language". In turn, that meant that the judge did not allow the claim to be properly presented, and that he could not fairly appraise it, thereby rendering the trial unfair: [48].
36. One facet of a fair trial is the exercise of judicial restraint during the taking of evidence. In WA (Role and duties of judge) Egypt [2020] UKUT 127 (IAC), the first paragraph to the headnote states:
"During the taking of evidence a judge's role is merely supervisory."
At [6], the Presidential Panel gave further practical guidance as to the conduct of the judge during evidence being taken:
"…while evidence is being taken, [a judge] should limit himself to making sure that the evidence is given as well as may be. He should be alert to the witness's welfare; he should check that there are no obvious problems with interpretation. He will ensure that there are no undue interventions from the other side, reminding representatives, if necessary, that they will have an opportunity in due course to ask their questions. When both sides have finished their examination, he may ask questions of his own by way of clarification; if he does, he should give both sides an opportunity to ask any further questions arising from his."
37. In summary, interventions that stray beyond the merely supervisory role of a judge during the taking of evidence risk a judge descending into the arena and so clouding their vision by the dust of conflict.”
Discussion and Findings
10. At the hearing before me, the parties relied on the notes of attendance taken by the appellant and respondent’s representatives (together, the “attendance notes”). Ms Heybroek and Ms Clewley agreed the content of the two notes was accurate and that I could base my decision on them.
11. I have considered whether the FtT Judge should be invited to give his views on the appellant’s grounds of appeal. Such practice was endorsed by Lord Wilson in Serafin at [44] and outlined in Sarabjeet Singh v Secretary of State for the Home Department [2016] EWCA Civ 492. The Upper Tribunal noted in Elais that guidance was given in the context of FtT proceedings that were not recorded, and the Upper Tribunal was content to proceed in that case without inviting the FtT Judge’s views because there was a transcript of the proceedings which could be assessed. I have considered if it is necessary to obtain the transcript of the proceedings. Given the attendance notes are agreed between the parties and in the interests of reaching a decision as expeditiously as possible, I have decided to proceed on the basis of the agreed attendance notes.
12. At the heart of the appellant’s submissions is the FtT Judge’s interventions during cross-examination of both the appellant and a witness. Ms Heybroek submitted that the FtT Judge engaged in extensive participation, interrupted the Home Office Presenting Officer’s (“HOPO”) line of questioning and effectively asked questions before the HOPO could do so. She pointed to the tone of some of the FtT Judge’s questions. In addition, the FtT Judge asked a witness questions about his engagement with DAKOK and commented that he had heard other cases which involved DAKOK. During that questioning Ms Heybroek raised her concerns about the interventions and said that the FtT Judge’s decision needed to be based on the evidence before him. Ms Heybroek said that after that the FtT Judge stopped intervening. She acknowledged that she did not raise her concerns with the FtT Judge as early as she could have.
13. Ms Clewley submitted that the FtT Judge’s questions were clarificatory in nature, when clear answers had not been given. She also noted that the appellant’s representative only raised concerns about the interventions during cross-examination of the witness, not the appellant himself, and that as soon as those concerns were raised the FtT Judge stopped intervening. She noted there was not the “barrage of hostility” identified in Elais and in any event, she submitted the issue was not in the FtT Judge asking questions but rather whether that impacted his ability to evaluate the evidence which might make the trial unfair. By way of additional context, Ms Clewley said the HOPO on the day had been brought in from the standby list and did not have the usual amount of time to prepare. She argued it was not unfair for the FtT Judge to assist with clarificatory answers where they were unsatisfied with what they heard. In response to this point, Ms Heybroek submitted that it was not the role of the FtT Judge to fill in the gaps for an ill-prepared representative.
14. The attendance notes record a number of questions from the FtT Judge that were asked in the course of cross-examination by the HOPO. Some of those questions seek to clarify answers, while others point out apparent inconsistencies in the answers given. On some occasions the FtT Judge concludes his question by saying that it requires a “yes or no” answer.
15. I shall begin with the question of whether or not the FtT Judge has demonstrated apparent or actual bias. I must decide whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. It is apparent from the attendance notes and the determination that the FtT Judge asked questions in order to obtain clearer responses from the appellant and the witness, and to ensure he understood the evidence. Those questions do not demonstrate a pre-determined view or that the FtT Judge did not have an open mind to the conduct of the hearing. The decision sets out consideration of a range of factors taken into account and a wholistic assessment of the evidence before the FtT Judge reached his conclusion. A fair-minded observer would not conclude that there was a real possibility the FtT Judge was biased. I find that the FtT Judge has not demonstrated actual or apparent bias.
16. The authorities make clear that whether a hearing was fair is an objective judicial question; either the hearing was fair, or it was not. Ms Clewley submitted that it is not simply a matter of the FtT Judge asking questions during cross-examination, but whether that impacted his ability to evaluate the evidence. That is an important point. I must decide whether the FtT Judge’s ability to properly evaluate and weigh the evidence was hampered by any descent into the arena, such that it impaired his judgement and rendered the hearing unfair.
17. While judicial interventions should always be kept to a minimum during cross-examination, I am not persuaded that either the nature or timing of the FtT Judge’s questions in this case produced unfairness. That is because those interventions have not resulted in the FtT Judge being unable to fairly assess the evidence before him.
18. There were gaps in the evidence given by the appellant. The FtT Judge asked questions seeking to address those gaps. In substance, those questions were not unreasonable and indeed could have been of assistance to the appellant. The FtT Judge reached his determination that the appellant would not be at risk on return based on a number of factors including his assessment of the oral evidence, the absence of evidence on certain points (see for example [41], [42], [43], [46], [47]), and the appellant’s actions subsequent to allegedly being detained and assaulted (see for example [44], [45] and [48]). Similarly, in relation to the sur place activities, the FtT Judge accepted the appellant had attended demonstrations in the UK. He considered the timing of the sur place activities after arriving in the UK, the prominence of any role he played and the likelihood of the appellant having been subjected to surveillance that might put him at risk. I do not see how the FtT Judge’s ability to weigh the evidence and reach his conclusions was unfairly impacted in this case by the questions he asked. I find that the hearing was not unfair.
19. The appellant relies on two other grounds, namely that the FtT Judge made findings and comments which were not reasonably open to him and that his decision demonstrates a starting point of disbelief, including not applying the lower standard of proof. There was less focus on these grounds at the hearing before me, however I have fully considered them nonetheless.
20. The FtT Judge correctly identified the lower standard of proof at [26] and applied that standard throughout the determination. He has summarised the guidance in MAH (Egypt) v Secretary of State for the Home Department [2023] EWWCA Civ 216 and explained how he applied it in this case. I am not persuaded that the FtT Judge began from a position of disbelief. He set out the evidence, explained what he accepted and what he did not, including the reasons for that, and how it weighed in his decision. The specific findings which the appellant challenges from the decision at [42], [28], [40]-[43] were all reasonably open to the FtT Judge to make and, in any event, any error in this regard is not material to the overall outcome. I do not uphold the second or third ground of appeal.
21. In light of the above, I find that the grounds of appeal fail to show that the FtT Judge erred in law for the reasons argued by the appellant. The appeal is dismissed.
Notice of Decision
The appeal is dismissed.

N Hills

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 29 June 2026