Court of Appeal Enforces Procedural Fairness in Hima v SSHD

The Court of Appeal has handed down a judgement addressing procedural fairness in First-tier Tribunal (FTT) proceedings. This case highlights the need for ensuring procedural fairness in immigration appeals. The judgment emphasises that judicial conduct must not only be impartial but also perceived as such to maintain the integrity of the legal process. It was not the role of the Judge to descend into the arena to an impermissible extent and questions should be neutral inquiries. Further, and perhaps importantly, unfairness in the treatment of a party’s representative will impact on the fairness of the hearing.

 

There is a contrast to be drawn from a recent authority from the Court of Appeal in Hossain v Secretary of State for the Home Department [2024] EWCA Civ 608 wherein it was found that despite the FTT asking a litany of questions the proceedings were not vitiated by procedural unfairness. The contrast between these cases is considered in this article as well.

What happened in Hima v Secretary of State for the Home Department [2024] EWCA Civ 680?

 Background:

The case of Hima v Secretary of State for the Home Department [2024] EWCA Civ 680 revolves around Mr Hima, an Albanian national who applied for a residence card as an extended family member of an EEA national, Filicia Ruse. The Secretary of State for the Home Department (SSHD) invited the couple to an interview which they attended and rejected the application on the grounds that Hima’s marriage to Ruse was one of convenience, intended solely to circumvent immigration controls.

Hima’s legal strategy was centred on contesting this allegation by demonstrating the genuine nature of his marriage. Initially, he provided a marriage certificate and other documentation to establish a prima facie case that his marriage was legitimate. However, the SSHD highlighted several inconsistencies during interviews with Hima and Ruse, such as differences in their accounts of family interactions and the timeline of their relationship. These inconsistencies formed the basis of the SSHD’s decision to reject the application, concluding that the marriage was not genuine.

Hima appealed the decision to the First Tier Tribunal (FTT). His legal representative, Mr. Hussain, adopted a sharp strategy focused on challenging the evidential burden placed on Hima by the SSHD. The primary submission was that the SSHD had not provided sufficient evidence to establish a prima facie case that the marriage was one of convenience. Furthermore, Hussain argued that the inconsistencies pointed out by the SSHD were minor and did not undermine the overall genuineness of the marriage. To support this argument, Hussain presented a witness statement from Hima and documentary evidence, including utility bills and council tax documents, to prove that Hima and Ruse lived together.

At the FTT hearing, Judge Mills questioned Hima extensively, which Hussain argued was excessive and unfair. The Appellant contended that the FTT judge overstepped by cross-examining Hima on points not raised by the SSHD, including details about his previous marriage, which were not relevant to the current case. Despite these arguments, the FTT dismissed Hima’s appeal, leading to an appeal to the Upper Tribunal (UT).

The UT, while acknowledging some procedural issues, upheld the FTT’s decision. The challenge was brought to the Court of Appeal, arguing that the UT erred in its conclusion that the FTT hearing was fair despite recognizing procedural issues.

What was found to be procedurally unfair in Hima?

The Court of Appeal’s decision hinged on several critical legal points. The key points are distilled below:

(1) Entering the arena to an impermissible extent:

The court examined whether the FTT judge conducted the hearing in a manner that ensured procedural fairness. This included evaluating the judge’s behaviour, the treatment of Hima’s legal representative, and the handling of evidence. The Court of Appeal found that the FTT judge’s conduct was indeed unfair, primarily due to excessive cross-examination and inappropriate criticism of Hima’s representative, Mr. Hussain. Lord Justice William Davis noted:

“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” (§45).

The court scrutinized the extent to which the FTT judge “descended into the arena,” thereby compromising the impartiality of the proceedings. The judge’s active questioning and critical remarks were deemed to overstep the bounds of judicial conduct. The court emphasised:

 “Any judge may be irritated by what the judge considers to be a bad point. The judge is entitled to draw the advocate’s attention to the view being taken by the court or tribunal. That is what the FTT judge did at the outset of the hearing in this case. There is no proper criticism to be made of that. What the judge is not entitled to do is thereafter unfairly to criticise the advocate or to engage in wider procedural unfairness” (§47).

(2) Unequal treatment of the Appellant:

The Court noted that there were other instances where the Judge had demonstrated unfair treatment. The SSHD had sought to adduce a previous decision from 2017 which was said to be “of some significance” only at the hearing to which the FTTJ said nothing by way of criticism however, took issue with the Appellant for failing to provide in advance a document which ought to have been in the hands of and disclosed by the SSHD. In addition, the Judge was critical of the Appellant’s representative for the delay in having to read the document disclosed by the SSHD at the hearing when there was no reason for the Appellant o have been in possession of that decision which dated back to 2017, see §49:

“The further instances of unfair treatment of Mr Hussain were in relation to the production of the document arising from the January 2021 visit and his submissions about the failure of the SSHD to disclose material relating to either visit. When Ms Mepstead sought leave to introduce the FTT decision of 2017, the judge said nothing by way of criticism even though it was material of some significance. In contrast, Mr Hussain was upbraided for failing to provide in advance a document which ought to have been in the hands of and disclosed by the SSHD. This was combined with an observation that the hearing had been delayed for Mr Hussain to look at a document (the previous FTT decision) which supposedly he should have seen before the hearing. There was no reason for Mr Hussain to have been in possession of a decision dating back to 2017. Later in the hearing Mr Hussain made proper submissions about the failure of the SSHD to disclose material. The UT judge considered that the submissions could have been made in a more neutral tone. She found that the FTT judge clearly found Mr Hussain’s approach to be unhelpful. I consider that the substance of the submissions is not open to criticism. What can be criticised is the reaction of the FTT judge. When he accused Mr Hussain of making an allegation against Ms Mepstead personally, Mr Hussain’s denial of the allegation was put politely. The judge’s treatment of that was unsympathetic. His question about whether Mr Hussain as a legal professional had approached the case in an appropriate way was rhetorical. It can only have been seen by the appellant as expressing animus towards his case. The judge dealt with the matter unfairly.”

(3) Taking points against the Appellant which were not raised by the SSHD:

The court evaluated whether the FTT judge appropriately considered evidence beyond what was presented by the SSHD and whether the judge relied on unsubstantiated points. The Court stated:

 “There was no reference in the decision letter to the genuineness of the appellant’s previous marriage. It was not suggested that the nature of that marriage was such as to affect the view to be taken of the marriage to Ms Ruse” (§50).

Comment:

The Court of Appeal’s ruling in Hima v. SSHD underscores the importance of maintaining strict procedural fairness in immigration appeals, particularly in cases alleging marriages of convenience. Several key legal insights emerge from this decision:

The decision reinforces that judges must not only be fair but must also appear fair to an objective observer. The perception of bias can be as detrimental as actual bias. In this case, the FTT judge’s extensive cross-examination and critical remarks towards Mr. Hussain compromised the fairness of the hearing. As the court noted:

 “Unfairness in the treatment of a party’s representative will impact on the fairness of the hearing” (§48).

While judges in the FTT may have a more active role due to the quasi-inquisitorial nature of some proceedings, this must not extend to taking over the role of cross-examination or showing partiality. The judge’s role should be to ensure that the evidence is clear and understood without compromising the tribunal’s impartiality. Lord Justice Underhill emphasised:

 “While I do not accept Ms Anderson’s submission that the role of a judge hearing immigration and asylum appeals in the FTT is quasi-inquisitorial, I recognize that the characteristics of such cases may mean that it may more often be appropriate for judges to intervene during the evidence than it is in typical High Court litigation” (§56).

The court’s decision highlights the need for proper handling and consideration of evidence. The FTT judge’s reliance on unraised points and the criticism of Hima’s representative for introducing new documents were deemed inappropriate. The Court stated:

“What the judge is not entitled to do is thereafter unfairly to criticise the advocate or to engage in wider procedural unfairness” (§47).

The judgment emphasises that judicial conduct must not only be impartial but also perceived as such to maintain the integrity of the legal process. By remitting the case for a new hearing before a different FTT judge, the Court of Appeal underscored the importance of fair treatment and the proper allocation of the burden of proof in immigration cases involving allegations of marriages of convenience. Lord Justice William Davis concluded:

“For all of the reasons I have set out I am satisfied that the appeal in this case was subject to substantial unfairness such that the outcome cannot stand” (§54).

Furthermore, Lord Justice Underhill added,

 

“I agree that this appeal should be allowed, for the reasons given by William Davis LJ, and that the appellant’s appeal should be remitted to the FTT for hearing by a different judge. The hearing by the FTT was unfair for essentially three reasons, though they are to some extent related. First, the judge asked the appellant a series of questions which went well beyond an attempt to seek clarification and amounted to cross-examination on points not raised by the Secretary of State: see in particular paras. 45-46 of William Davis LJ’s judgment. Second, he based his conclusion in part on a point which had not been raised with the appellant or his representative (and which was contrary to the finding of the FTT in an earlier case): see paras. 50-51. Third, his criticisms of Mr Hussain not only were unfounded but were expressed in inappropriate language which evinced (to put it to no higher) serious irritation and some personal animus: paras. 48-49. It is unnecessary to decide whether any one of those features by itself would have been enough to render the hearing unfair: taken cumulatively, they certainly did. I do not doubt that this experienced judge was making a conscientious effort to get to the bottom of the issues as he saw them, but that involved him in ‘descending into the arena’ in a way which led him into the errors in question” (§59).

How does this case sit with the recent authority of Hossain v. Secretary of State for the Home Department[2024] EWCA Civ 608?

The case of Hossain v. Secretary of State for the Home Department [2024] EWCA Civ 608 offers an insightful comparison to Hima v SSHD. In Hossain, the Appellant, Mr. Tareque Hossain, challenged the decision of the Upper Tribunal (UT) which upheld the First-tier Tribunal (FTT) dismissal of his appeal against the SSHD’s decision to refuse him leave to remain. Hossain’s appeal was based on procedural unfairness, arguing that the FTT judge had overstepped their role by “descending into the arena” and conducting inappropriate cross-examination.

The Court of Appeal in Hossain’s case provided a detailed examination of the role of judges in maintaining procedural fairness. The critical distinction between Hima and Hossain lies in the nature and impact of judicial conduct. The key differences between the two cases are addressed below:

(1) Extent of Judicial Questioning:

In Hima, the Court of Appeal found that the FTT judge’s questioning went beyond mere clarification and amounted to cross-examination, which was not the role of the judge (§§45-46 of Hima).

In Hossain, although the FTT judge asked many questions, these were primarily aimed at clarifying evidence rather than assuming the role of an advocate. The Court noted that the judge’s questions were persistent but did not reach the level of hostility or bias that would render the hearing unfair (§74 of Hossain).

(2) Nature of Judicial Conduct:

The FTT judge in Hima was criticised for expressing irritation and personal animus towards Hima’s representative, which contributed to an unfair hearing environment (§§48-49 of Hima).

In contrast, the FTT judge in Hossain, despite extensive questioning, maintained a neutral tone. The Court of Appeal found that the judge’s conduct did not impair their ability to evaluate the evidence objectively (§74 of Hossain).

(3) Fair Opportunity to Respond:

In Hima, the Court highlighted that the appellant was not given a fair opportunity to respond to new points raised by the judge, which were not previously addressed by the SSHD (§50 of Hima).

In Hossain, the Court observed that the judge’s questions were within the scope of issues already discussed, and both parties had the opportunity to address these points (§74 of Hossain).

(4) Impact on Judicial Decision:

The cumulative effect of the FTT judge’s conduct in Hima led the Court of Appeal to conclude that the hearing was substantially unfair, necessitating a remittal for a new hearing (§59 of Hima).

In Hossain, despite the extensive judicial intervention, the Court determined that the trial was fair and that the judge’s conduct did not adversely affect their decision-making (§75 of Hossain).

Conclusion:

In conclusion, the key reasons the Court of Appeal ruled differently in Hossain compared to Hima were based on the qualitative assessment of judicial conduct and its impact on the fairness of the hearing. While both cases involved allegations of judges overstepping their roles, the degree of intervention, the context of the questioning, and the maintenance of neutrality were pivotal in determining the fairness of the proceedings. These cases collectively underscore the delicate balance judges must maintain to ensure procedural fairness and impartiality in judicial hearings. Ultimately, questions of procedural fairness depend on the context and facts of a particular case as these two judgements demonstrate.