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Hima v The Secretary of State for the Home Department
Factual and Procedural Background
The Appellant, a citizen of Albania, applied in October 2019 for a residence card as the extended family member of an EEA national, Ms. Ruse. They married on 19 November 2019. The Secretary of State for the Home Department ("SSHD") refused the application, concluding the marriage was one of convenience. The Appellant appealed to the First Tier Tribunal ("FTT"), which dismissed the appeal in March 2021. The Appellant then appealed to the Upper Tribunal ("UT"), alleging procedural unfairness by the FTT judge. The UT dismissed the appeal in January 2022, finding some legitimate complaints but concluding the hearing was fair overall. The Appellant was granted permission to appeal to the higher court on three grounds related to fairness and bias in the FTT hearing.
The Appellant has a poor immigration history, involving previous use of false identities, refused asylum claims, illegal entries, and a prior marriage found genuine by the FTT in 2017. The SSHD’s refusal was based on alleged inconsistencies between the Appellant’s and Ms. Ruse’s accounts during interviews and insufficient evidence of cohabitation. The FTT hearing was conducted remotely, with the Appellant represented by counsel. The FTT judge questioned the Appellant extensively, which led to objections from the Appellant’s representative. The judge admitted a prior FTT decision from 2017 into evidence over objection. The SSHD’s representative cross-examined the Appellant on visits by officials and lack of supporting evidence from others. The judge also questioned the Appellant about witnesses not called and his previous marriage, drawing adverse inferences.
The FTT judge dismissed the appeal, finding the Appellant an unreliable witness and concluding the marriage was not genuine. The UT reviewed the fairness of the FTT hearing, admitted fresh evidence about Home Office visits, and concluded there was no real possibility of bias but acknowledged some shortcomings. The UT found the hearing, viewed as a whole, was fair and did not require setting aside the FTT’s decision. The Appellant’s appeal to the higher court focuses primarily on whether the UT erred in law in its fairness assessment.
Legal Issues Presented
- Whether the Upper Tribunal erred in concluding that the Appellant had a fair hearing despite finding aspects of the FTT judge’s conduct open to criticism.
- Whether the Upper Tribunal should have found that the FTT judge approached the hearing with a predetermined mindset (apparent bias).
- Whether the Upper Tribunal erred in law by making findings of fact without setting aside the FTT decision.
Arguments of the Parties
Appellant's Arguments
- The FTT hearing was unfair due to the judge’s conduct, including cross-examination of the Appellant by the judge, inappropriate responses to objections, and adverse findings without opportunity to respond.
- The UT erred in law by concluding the hearing was fair despite these procedural unfairnesses.
- The FTT judge had a predetermined mindset, amounting to apparent bias.
- The UT improperly made factual findings regarding Home Office visits without setting aside the FTT decision.
Respondent's Arguments (SSHD)
- The appeal to the UT was based on apparent bias, not unfair hearing, and the Appellant cannot raise unfairness in this appeal.
- The FTT hearing was quasi-inquisitorial, allowing the judge to question witnesses and investigate beyond the Appellant’s case.
- Judges of the FTT must be free to conduct hearings to elicit evidence necessary for decision-making without being overly constrained by parties’ strategies.
- The UT’s findings of fairness and absence of bias were correct and entitled to respect given its specialist expertise.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Agho v SSHD [2015] EWCA Civ 1198 | Burden of proof lies on SSHD to prove marriage of convenience on a balance of probabilities; evidential burden may shift to applicant. | Confirmed the burden of proof framework applied in the case regarding marriage genuineness. |
| Sadovska v SSHD [2017] UKSC 54 | He who asserts must prove; SSHD must prove marriage of convenience; FTT must be satisfied on balance of probabilities. | Reinforced that SSHD bears the ultimate burden and the FTT must weigh evidence accordingly. |
| Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468 | Definition of bias as prejudice unrelated to merits of the case. | Used to distinguish bias from unfairness and guide analysis of alleged bias by the FTT judge. |
| Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117 | Authority on definition and assessment of bias. | Supported the legal framework distinguishing bias and unfairness. |
| Secretary of State for the Home Department v AF (No 2) [2008] EWCA Civ 117 | Further authority on bias and procedural fairness. | Referenced in discussion of bias standards. |
| Serafin v Malkiewicz [2020] UKSC 23 | Distinction and overlap between bias and unfairness in judicial conduct. | Applied to assess whether judge’s conduct rendered hearing unfair or biased. |
| Porter v Magill [2001] UKHL 67 | Test for apparent bias: whether a fair-minded and informed observer would conclude a real possibility of bias. | Used as the standard for assessing alleged bias by the FTT judge. |
| Jahree v State of Mauritius [2005] UKPC 7 | Unfair conduct by a magistrate may not necessarily vitiate trial if not central to fairness. | Illustrated that unfairness must be significant to affect outcome. |
| R v Dean Cole [2008] EWCA Crim 3234 | Repeated unjustified criticism of counsel by judge can amount to unfairness warranting overturning conviction. | Supported finding that criticism of Appellant’s counsel was unfair and affected hearing fairness. |
| SSHD v Maheshwaran [2002] EWCA Civ 173 | Failure to alert parties to inconsistencies used in decision does not necessarily amount to unfairness. | Applied to assess whether FTT judge’s adverse inference on previous marriage without warning was unfair. |
| Abdi v Entry Clearance Officer [2023] EWCA Civ 1455 | Procedural fairness depends on context and is fact-specific; not all procedural errors affect outcome. | Referenced to emphasize fact-specific nature of fairness and caution against overgeneralization. |
Court's Reasoning and Analysis
The court undertook a detailed review of the FTT hearing transcript and recordings, focusing on whether the FTT judge acted fairly. It acknowledged the specialist nature of the UT but emphasized that fairness is a universal judicial principle applicable to all courts and tribunals. The court found that the FTT judge’s extensive questioning of the Appellant went beyond clarification and amounted to cross-examination, which is inappropriate for a judge in that context. The judge’s dismissive and critical treatment of the Appellant’s representative was also found to be unfair and likely to impact the fairness of the hearing.
The court noted that the judge introduced adverse findings relating to the Appellant’s previous marriage without prior notice or opportunity for the Appellant to respond, which was unfair. While the judge was entitled to investigate beyond the Appellant’s case, this did not justify procedural unfairness. The court rejected the UT’s conclusion that the hearing was fair overall, finding that unfairness in multiple respects cumulatively undermined the hearing’s fairness.
Regarding bias, the court found no factual basis for concluding there was a real possibility of bias, distinguishing unfairness from bias. The court also considered the SSHD’s burden of proof and the evidential standards applicable, reaffirming that the SSHD must prove the marriage was one of convenience on the balance of probabilities.
The court declined to decide on the subsidiary issue concerning the UT’s factual findings on Home Office visits, as it was unnecessary given the findings on fairness.
Holding and Implications
The court ALLOWED the appeal. It held that the FTT hearing was unfair in multiple respects, thereby invalidating the outcome of the appeal. The decisions of both the FTT and the UT were set aside. The matter was remitted to the FTT for rehearing by a different judge.
The decision underscores the necessity for FTT judges to conduct hearings fairly and avoid conduct that may amount to cross-examination or unfair criticism of parties and their representatives. It reinforces that procedural fairness is a fundamental requirement in immigration appeals, despite the quasi-inquisitorial nature of the FTT. No new legal precedent was established beyond reaffirming established principles of fairness and burden of proof in this context.
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