Alubankudi (Appearance of bias)

JurisdictionUK Non-devolved
JudgeTHE HON. MR JUSTICE MCCLOSKEY
Judgment Date16 September 2015
Neutral Citation[2015] UKUT 542 (IAC)
CourtUpper Tribunal (Immigration and Asylum Chamber)
Date16 September 2015

[2015] UKUT 542 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

The President, The Hon. Mr Justice McCloskey

Upper Tribunal Judge Canavan

Between
Alhaja Alarape Alubankudi
Appellants
and
Secretary of State for the Home Department
Respondent
Representation:

Appellant: Ms C. Charlton of Bhogal Partners Solicitors

Respondent: Ms J. Isherwood, Senior Office Home Presenting Officer

Alubankudi (Appearance of bias)

  • (i) One of the important elements of apparent bias is that the hypothetical fair minded observer is properly informed and possessed of all material facts.

  • (ii) The interface between the judiciary and society is of greater importance nowadays than it has ever been. Judges must have their antennae tuned to the immediate and wider audiences, alert to the sensitivities and perceptions of others, particularly in a multi-cultural society. Statements such as that made by the FtT Judge in this case that “the United Kingdom is not a retirement home for the rest of the world” had the potential to cause offence and should be avoided.

DECISION AND REASONS
Framework of Appeal
1

This appeal originates in a decision made on behalf of the Secretary of State for the Home Department (the “ Secretary of State”) dated 28 February 2014, whereby the application of the Appellant, a national of Nigeria now aged 71 years, for Indefinite Leave to Remain in the United Kingdom outwith the framework of the Immigration Rules (hereinafter “ the Rules”) was refused.

2

The decision maker first considered whether the Appellant qualifies for leave to remain under the Rules. In doing so, the relevant history summarised was that the Appellant last entered the United Kingdom on 16 July 2009, pursuant to a 180 day multi-entry visitor visa issued on 26 August 2008 and valid until 26 August 2013. The application made on behalf of the Appellant was dated 24 October 2013. It was decided, firstly, that a refusal under paragraph 322(1) of the Rules was appropriate on the basis that variation of leave to enter or remain was sought for a purpose not covered by the Rules. Next, having regard to the terms of the multi-entry visitor visa and the Appellant's failure to honour any declaration or undertaking given orally, or in writing, as to the intended duration and/or purpose of …. stay”, the application was further refused under paragraph 322(7). The third conclusion made was that the application did not satisfy the Article 8 ECHR provisions of the Rules, specifically paragraphs 276ADE, 277C and Appendix FM. The decision continues:

Notwithstanding the above your application has also been considered on compassionate and compelling factors”.

The considerations which were then identified are the Appellant's age (70); her state of health (general age related ailments only); her family connections with the United Kingdom (a daughter only); the death of her husband in 1997; her ability to live in Nigeria during most of the period between 1997 and 2009; and the absence of evidence that she would be exposed to ill treatment in the event of returning there. The decision continues:

It is not considered that you have provided any evidence showing that your circumstances have significantly changed since you last left Nigeria on 16 July 2009, or that you would be living in the most exceptional compassionate circumstances should you return to Nigeria. All your representations have been taken into consideration and it is the view that you have not raised any exceptionally compelling or compassionate factors that would warrant a grant of leave in the UK.”

The application was refused accordingly.

3

The First-tier Tribunal (the “ FtT”) dismissed the ensuing appeal. Its assessment was that the impugned decision interfered with the Appellant's right to respect for private and family life but was “ in accordance with the law and necessary for the economic well being of society”. In considering the issue of proportionality, the Judge noted the applicability of section 117A of the Nationality, Immigration and Asylum Act 2002 (the “ 2002 Act”), proceeding to highlight the following facts and factors: the absence of evidence that the Appellant speaks English; her “ accessing” NHS medical treatment, to which her daughter knew she was not entitled, since first registering with a General Medical Practitioner in 1997; the inevitability of further recourse to free NHS treatment; the absence of evidence of “ substantial integration” into life in the United Kingdom or of an extensive private life outside the family unit.

4

Next, having highlighted the evidence, including several doctors' letters, relating to the Appellant's state of health, the Judge noted the absence of any claim that she required long term personal care to perform everyday tasks. The Judge was satisfied that such longer term personal care as the Appellant may require, will be available to her in Nigeria. He also noted the ability of the Appellant's daughter to continue to support her mother financially, evidenced by, inter alia, her second home in the United Kingdom. The Judge further found that the Appellant would not be at risk of any ill treatment in Nigeria, noting in particular the evidence of both the Appellant and her daughter that in 2009 the Appellant fully intended to return there. In summary, the status quo ante 2009 would be re-established upon the Appellant's return to Nigeria.

5

Permission to appeal was granted in the following terms:

The decision as a whole displays cogent evidence based reasoning. However, the grounds argue bias and lack of a fair hearing rooted in the Judge's remark at paragraph 51 that ‘there is a great deal of authority to the effect that the United Kingdom is not a retirement home for the rest of the world’. While this by no means discloses any clear error of law, particularly taken against the content of the rest of the decision, the need for justice to be seen to be done on balance renders the ground arguable.”

[Emphasis added]

Thus the issue for us is whether the decision of the FtT is tainted by apparent bias.

Governing Legal Principles
6

Every litigant enjoys a common law right to a fair hearing. This entails fairness of the procedural, rather than substantive, variety. Where a breach of this right is demonstrated, this will normally be considered a material error of law warranting the setting aside of the decision of the FtT: see AAN (Veil) Afghanistan [2014] UKUT 102 (IAC) and MM (Unfairness; E&R) Sudan [2014] UKUT 105 (IAC). The fair hearing principle may be viewed as the unification of the two common law maxims audi alteram partem and nemo judex in causa sua, which combine to form the doctrine of natural justice, as it was formerly known. These two maxims are, nowadays, frequently expressed in the terms of a right and a prohibition, namely the litigant's right to a fair hearing and the prohibition which precludes a Judge from adjudicating in a case in which he has an interest.

7

Further refinements of the fair hearing principle have resulted in the development of the concepts of apparent bias and actual bias. The latter equates with the prohibition identified immediately...

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22 cases
  • Mr Victor Omar Ortega v The Secretary of State for the Home Department
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 6 August 2018
    ...to the best interests of the child was not, in substance, erroneous. Discussion Ground 1 22 . The Upper Tribunal decision of Alubankudi (Appearance of bias) [2015] UKUT 00542 sets out in paragraphs 6 to 8 the “Governing Legal Principles” to be applied when considering an allegation of bias:......
  • Upper Tribunal (Immigration and asylum chamber), 2016-12-22, IA/13564/2015
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 22 December 2016
    ...I would, for future reference, say this. This is not a matter in which the facts are agreed: cf. Alubankudi (Appearance of Bias) [2015] UKUT 542 (IAC). Where a party relies, as a ground of appeal, on disputed assertions of fact about what might have happened at a hearing, that party should ......
  • Mr Anton Sivapatham (Anonymity Direction Not Made) v The Secretary of State for the Home Department
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 7 July 2017
    ...to prove, on the balance of probabilities, that the first instance judicial decision is infected by apparent bias. 15 In Alubankudi (appearance of bias) [2015] UKUT 542 (IAC) this Tribunal dilated on the governing legal principles in the following terms: “[6] Every litigant enjoys a common ......
  • Upper Tribunal (Immigration and asylum chamber), 2021-01-06, HU/07942/2017
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 6 January 2021
    ...of Ortega where the Upper Tribunal (Lane J, President and UTJ Pitt) adopted the UT’s reasoning in Alunbankudi (appearance of bias) [2015] UKUT 542 (IAC) at [6]–[8] as follows: “22. The Upper Tribunal decision of Alubankudi (Appearance of bias) [2015] UKUT 542 sets out in paragraphs 6 to 8 t......
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