First-tier Tribunal judge carried out “wholly inappropriate” cross-examination of appellant

The Court of Appeal has, for the third time this year, had to intervene where the Upper Tribunal has failed to do so, in a case involving poor conduct on the part of the First-tier Tribunal. This case is Hima v The Secretary of State for the Home Department [2024] EWCA Civ 680. We have written up the earlier examples here and here.

Background

The appellant is an Albanian national who was appealing against the refusal of a residence card as the extended family member of an EEA national. He had a poor immigration history, having previously unsuccessfully claimed asylum and been removed to Albania before re-entering and being removed again in 2008 and re-entering three months later. In 2012 he made an unsuccessful application for leave to remain based on his relationship with a British citizen, that and a subsequent appeal were both rejected. He returned to Albania in 2014 and then re-entered the UK in 2017, again without permission.

In October 2019 the appellant applied for a residence card as the extended family member of an EEA national. He married his partner in November 2019. The Home Office interviewed the couple in July 2020 and shortly after that refused the application for a residence card, relying on inconsistencies in the answers given during the interview. The Home Office concluded that this was a marriage of convenience.

The appeal to the Tribunals

Mr Hima appealed the refusal, it was correctly pointed out that the burden of proof in a marriage of convenience case lies with the Home Secretary to the civil standard of the balance of probabilities. It was submitted that this burden had not been discharged.   

The hearing took place in the First-tier Tribunal in Birmingham on 10 February 2021. At the outset of the hearing, First-tier Tribunal Judge Mills was critical of the fact that the appellant’s wife was not intending to give evidence, and pressed the point when resisted by the appellant’s representative. He then said that “he could draw an inference that she did not give evidence because Mr Hussain was worried about what her evidence might be”.

When the Home Office’s presenting officer asked for permission to introduce the First-tier Tribunal’s decision from 2017 this was resisted by the appellant’s representative as it had not been relied on in the refusal nor had it been provided by the Home Office earlier, so he had not seen it. The judge allowed it and in doing so provided one of several prompts to the Home Office presenting officer which was then adopted by them.

Following conclusion of the presenting officer’s cross examination of the appellant, the judge asked another 25 questions, raising issues that had not formed part of the refusal decision or been raised previously in the appeal. The judge also queried why others were not attending to give evidence.

Avid readers may recall that I pointed out a couple of weeks ago that challenging a judge during proceedings is easier said than done. In this case, the appellant’s representative did raise an objection and the judge went for him, demonstrating my point perfectly. The judge said:

Mr Hussain, you are not doing your client any favours with your behaviour today, I can tell you that much. The presenting officer asked why no witnesses had come. And the answer was, “Why should I?” Well, that is not a good answer, is it? So, I am clarifying that point. That is clarification, not cross-examination, Mr Hussain. You should know better than to accuse me of cross-examining. You are welcome to apologise. OK. You are not apologising. You are not doing your client any favours at all, Mr Hussain. I will carry on with my perfectly legitimate line of clarificatory questions.

There were also, unsurprisingly given the late appearance of the 2017 determination, other disclosure issues from the Home Secretary’s side, regarding a visit the Home Office had carried out to the appellant’s home in January 2021, a few weeks before the hearing, which the appellant gave evidence about but the presenting officer was unaware of. During this visit, the appellant was not in at the time but there were wedding photos in the home and male clothing and belongings in the bedroom, indicating that the appellant did live there.

The judge took issue with the appellant’s representative saying that an adverse inference should be made against the Home Secretary for the failure to provide evidence of this visit. He said “you have already accused me of being impartial (sic) in this case today. You have already accused me of cross-examining your client. Are you now accusing Ms Mepstead [the presenting officer] of deliberately concealing evidence from the tribunal? Is that what you are doing?” The judge concluded with: “You can say the burden is on the Secretary of State as much as you like. Do you really think as a legal professional that you have approached this case in the appropriate way Mr Hussain?”.

The appellant’s representative accurately “explained that his submission was that the correct approach to the evidence was not to ask the appellant why he had not adduced evidence that he could have adduced. Rather, the question should be why the party bearing the burden of proof had not provided relevant evidence.” In his summing up, the appellant’s representative also noted that in the 2017 determination the First-tier Tribunal had accepted that the appellant’s earlier marriage was genuine.

The judge dismissed the appeal on 8 March 2021. In the decision, the judge raised additional points including that he considered the earlier marriage to have been a sham. While acknowledging that “they were not put to the appellant in the decision or in evidence at the hearing”, the judge nonetheless decided that he could still place some weight on them.

The decision was appealed on the grounds that the judge had “conducted the procedure unfairly” with six examples given. Yet again, we see the Upper Tribunal failing to hold the First-tier properly to account. The judge described the hearing as “at times fractious” and “there was, at one point in particular, a deviation from the norm”. She also queried why the appellant’s representative had been subject to criticism instead of the presenting officer and described the judge’s questioning of the appellant as “entirely unnecessary” and “the most problematic part of the hearing”.

However she concluded that “viewed as a whole the hearing was, to any observer, fair” and “whilst there were some shortcomings in the FTT’s approach on some matters, they were not such that the fair-minded observer would conclude that there was a real possibility of bias here”.

The Court of Appeal did not agree.

The Court of Appeal

Counsel for the Home Secretary had argued in her skeleton argument that the appellant had appealed to the Upper Tribunal on the grounds of apparent bias and not unfair hearing and so the unfair hearing argument could not be raised in the Court of Appeal. This was not pursued at the hearing, a decision the court described as “a realistic approach given the interplay between the two concepts”.

The court set out the different tests for apparent bias and an unfair hearing. The key complaints in the appeal were that the First-tier judge cross-examined the appellant and responded inappropriately to the appellant’s representative’s objection to the cross-examination. The judge had also accused the representative of making an improper submission when none had been made and that he had made an adverse finding against the appellant without giving him the opportunity to address the point. The court said that the appellant’s case here was that the hearing was unfair and not that there was apparent bias.

The issue to be decided by the Court of Appeal was summarised as whether the Upper Tribunal had made an error of law in deciding that any unfairness in the First-tier Tribunal was not enough to mean that the decision should be set aside.

The court rejected the arguments made by the Home Secretary around the nature of tribunal proceedings, saying that “any suggestion that judges of the FTT are not subject to precisely the same requirement to act fairly as any other judge is misconceived” and “The FTT in the field of asylum and immigration inevitably will deal with appeals of huge significance to the parties. That underlines the requirement for proceedings in the FTT to be fair and demonstrably so.”

The court also dismissed the Home Secretary’s argument that “the UT with its specialist knowledge was able to understand the nature of the judicial conduct being scrutinised in the context of an immigration appeal”. In doing so, the court found that there were additional aspects of the hearing that were unfair that the Upper Tribunal had not criticised.

The part of the hearing described by the Upper Tribunal as “unnecessary”, the Court of Appeal found to be “wholly inappropriate”, saying that the appellant’s representative had been correct to describe it as cross-examination. The court said “the cross-examination of the appellant was not a minor departure from ideal practice. In the context of this hearing, it demonstrated that the judge had entered the arena to an impermissible extent.”

The court was also critical of the multiple instances of unfair treatment of the appellant’s representative during the hearing, describing the judge as “unsympathetic” and that he “dealt with the matter unfairly”.

The court also found to be unfair the judge’s failure to alert the appellant’s representative that he intended to take the opposite view to the 2017 First-tier Tribunal judge about the genuineness of the appellant’s first marriage. This meant that no opportunity was given to address the issue, and the Upper Tribunal judge was wrong to conclude that there was no criticism to be made on this point.

The Court of Appeal concluded that “the appeal in this case was subject to substantial unfairness such that the outcome cannot stand” and the appeal has been remitted to the First-tier Tribunal to be heard by a different judge.

Conclusion

The Upper Tribunal must stop nodding through these appalling decisions and conduct by the First-tier Tribunal. The Court of Appeal has made it repeatedly clear this year that it is not acceptable. It should not have to keep doing this. These decisions have been very blatantly poor and the Upper Tribunal needs to do a lot better at holding the First-tier to account.

In the meantime, as ever, we can assume that there will be no consequences for the First-tier Tribunal judge, who at an absolute minimum owes the appellant and his representative an apology. It is worth remembering that he will also be hearing protection appeals from unrepresented litigants. They will be completely unable to challenge the sort of behaviour seen in this case and the consequences for them should there be a repeat may be severe indeed.