Sarabjeet Singh v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis,Lord Justice Beatson,Lord Justice Lindblom |
| Judgment Date | 27 May 2016 |
| Neutral Citation | [2016] EWCA Civ 492 |
| Docket Number | Case No: C5/2015/0527 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 May 2016 |
[2016] EWCA Civ 492
Lord Justice Davis
Lord Justice Beatson
and
Lord Justice Lindblom
Case No: C5/2015/0527
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
IA/31101/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Anton Van Dellen (instructed by Abbott Solicitors LLP) for the Appellant
Christopher Staker (instructed by the Government Legal Department) for the Respondent
Hearing date: 11 th May 2016
Introduction
This appeal is founded on an assertion of apparent bias. It is said that the First-tier Tribunal Judge ("FTTJ") of the Immigration and Asylum Chamber made remarks at the outset of the appeal hearing before him which indicated that he had a closed mind and/or had prejudged the appeal. It is said that the hearing was in consequence unfair. It is further said that, on appeal to the Upper Tribunal, the Upper Tribunal Judge ("UTJ"), in dismissing the appeal, failed to apply the correct legal test to the issue raised and, in consequence, failed properly to address the relevant points.
Leave to appeal to this court was granted by Burnett LJ on 19 May 2015.
Before us the appellant was represented by Mr Van Dellen. The respondent Secretary of State was represented by Mr Staker. Neither of them appeared below. I would say at the outset that the way in which this issue was approached by the parties below and those who represented them has scarcely helped in its resolution, whether by the UTJ or by this court.
Background
(1) The decision of the FTTJ
The appellant was born in India in 1967. On 5 July 2012 he made an application to the Secretary of State for Indefinite Leave to Remain, on the basis of asserted 14 year long residence in the United Kingdom. The appellant claimed to have arrived in the United Kingdom clandestinely and unlawfully in March 1997 and to have resided in the United Kingdom since then. By a decision letter dated 5 August 2013 the Secretary of State refused the application. It was not accepted that the applicant had arrived in the United Kingdom in 1997 as he claimed. It was noted, among other things, that the appellant had provided no documentary evidence of residence prior to July 2008, notwithstanding a prior request by the Home Office for any such documentation. There was also a lack of other evidence relating to the alleged residence. Overall, the application was rejected by reference to Paragraphs 276B and 276D of the Immigration Rules. The application was also refused on family life/private life grounds.
The appellant appealed. The matter came on for hearing before FTTJ Cohen sitting at Hatton Cross on 19 February 2014. The appellant was represented by counsel, Mr Mohsin Aslam. The Secretary of State was represented by counsel (although described on the front page of the determination as a Presenting Officer).
At the conclusion of the hearing, the FTTJ took time – as is the required practice – to produce his determination in writing. It was promulgated on 28 February 2014. It is, on its face, a detailed, careful and thorough determination, extending to 32 paragraphs.
The FTTJ recorded, in summary, the contents of the Secretary of State's decision letter. He then fully summarised the appellant's evidence and case. Among other things it had been said that the appellant had only secured long-term accommodation in 2008 and so only had documentation from then: although he did produce at the hearing (although not previously produced to the Secretary of State) one medical attendance record for 2005. He said that he had lived and worked illegally, being paid in cash, keeping no bank account, paying all his bills in cash and not claiming benefits. From 1997, on his arrival in the United Kingdom, he had been offered accommodation by Sikh friends met at the Gurdwara in Hounslow.
In the course of his determination the FTTJ noted that the appellant had produced no documentary evidence to support his claim that he had arrived in the United Kingdom in 1997. The FTTJ said that there would be at least some documentation to support the claim of arrival before 2005. He said: "I find the fact that there is not to be indicative of the fact that the appellant simply did not come to the UK in 1997 as claimed by him."
The FTTJ further noted that, notwithstanding the asserted length of his residence, the appellant spoke only very broken English and required an interpreter. It was also noted that, aside from one witness (Mr Rashpal Singh Sidhu), the appellant adduced no evidence or even letters from people he had met at the Gurdwara or otherwise or with whom he had lived to support his claims.
It was the appellant's case and evidence that he had resided with Mr Rashpal between 1997 and 2002 at a room at his house. Mr Rashpal gave evidence to like effect, even claiming in oral evidence that he remembered the precise date – 5 April 2002 – when the appellant moved out. The FTTJ recorded, at some length, numerous and significant discrepancies both in and between the oral evidence of the appellant and of Mr Rashpal. The FTTJ did not find them to be witnesses of truth. He found as a fact that they did not reside together between 1997 and 2002. The FTTJ further found that the appellant had not started continuously to reside in the United Kingdom until 2008.
There was no evidence of the appellant having a family life in the United Kingdom. It was accepted that he had established a private life: but interference with that by removal was adjudged to be proportionate, in the circumstances of the case.
On the face of it, therefore, this was a thorough and properly reasoned determination, which had made unassailable findings of fact and which had drawn conclusions appropriate to those findings of fact.
(2) The appeal to the Upper Tribunal
The appellant sought permission to appeal to the Upper Tribunal.
After the hearing before the FTTJ and for the purposes of the proposed appeal Mr Aslam made a witness statement. It is dated 7 March 2014 (that is, over 2 weeks after the hearing). It reads as follows:
"1. I was the advocate at the above appellant's hearing on 19 th February 2014 at Hatton Cross before Immigration Judge Cohen instructed by Gramdan Solicitors.
2. At the beginning of the hearing I handed my skeleton argument to IJ Cohen. He addressed the appellant in the usual way and introduced himself. During his introduction he stated to the appellant that he did not agree with my skeleton argument that documentary evidence was of lesser importance in such appeals. In his view documentary evidence was of utmost importance and the absence of documentary evidence could not satisfy him that the appellant had been in the UK. He went on to say that if I did not agree with him then I could appeal his decision.
3. In my view the IJ's comments were wholly inappropriate as he was addressing the appellant before hearing any evidence and giving a clear indication that he had already made his decision. The IJ's comments visibly unsettled the appellant.
4. During the course of the hearing the IJ continually interrupted both examination in chief and cross examination to ask his own questions to the appellant. The IJ was aggressive in his tone and manner, which I believe affected the evidence of the appellant.
I declare that this statement is true to the best of my knowledge and belief."
Grounds of Appeal were lodged. Among other things, it was said that the FTTJ had demonstrated bias in prejudging the appeal and addressing his views directly to the appellant at the outset of the hearing. It was also said that "undue pressure" was placed on the appellant during the hearing "adversely affecting his evidence." It was said that the appellant was "unsettled as a result of the judge's inappropriate comments and behaviour".
Those allegations comprised two paragraphs of the Grounds. The remaining nine substantive paragraphs of the Grounds were devoted to an attack on the FTTJ's findings and reasoning and on asserted failures on his part to deal properly with the evidence or with the appellant's Article 8 rights.
Permission to appeal to the Upper Tribunal was granted by another judge on 6 June 2014. It was said: "Subject to establishing the facts, the way the Judge conducted the hearing arguably amounts to an error of law". It was further stated that the remaining Grounds could also be argued.
(3) The hearing before the UTJ
The appeal came on for hearing before Deputy Upper Tribunal Judge Parkes on 21 August 2014. The appellant had by now instructed new solicitors. He was (perhaps unsurprisingly) represented at the appeal by other counsel: not Mr Aslam. The Secretary of State was represented by a Presenting Officer: not the advocate who had appeared before the FTTJ.
Mr Aslam was not tendered to give oral evidence. No explanation for that is recorded in the UTJ's subsequent determination: and we ourselves, on enquiry, were given no explanation. There is, at all events, no suggestion that the respondent had stated in advance of the hearing that she agreed Mr Aslam's evidence and did not require his attendance. It looks, therefore, as though the appellant had simply proposed to proceed by reference, on this issue, to Mr Aslam's written statement: and the hearing then proceeded accordingly.
It may also be noted that the appellant himself put in no witness statement and gave no evidence about what had happened at the first hearing or to support Mr Aslam's assertions about the...
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