SINGH v Secretary of State for the Home Department
| Jurisdiction | Scotland |
| Judgment Date | 24 December 2003 |
| Date | 24 December 2003 |
| Docket Number | No 31,No 24 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
Lord Mackay of Drumadoon
Judicial review - Immigration - Impartiality of tribunal - Whether common law test falls to be applied at the date of the hearing - Whether common law test a lower test than the requirements of Art 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms
Section 8(5) of the Asylum and Immigration Appeals Act 1993 (cap 23) gave the Lord Chancellor power to appoint part-time special adjudicators. Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides that everyone is entitled to a fair hearing by an independent and impartial tribunal.
The petitioner, an Indian citizen, applied for leave to remain in the United Kingdom. The Secretary of State refused his application by letter dated 17 September 1997. The petitioner appealed. The appeal was heard by a special commissioner on 21 November 1997, that is before the coming into force of the Human Rights Act 1998 (cap 42). At the end of the hearing, the special commissioner announced that the appeal was refused. He issued his written decision on 27 February 1998. At the date of the hearing, the special adjudicator held an appointment as a part-time immigration adjudicator. His appointment was for one year and was due to expire on 31 January 1998, and although it was renewable, had not been renewed as at the date of the hearing. He had been appointed by the Lord Chancellor, who, like the Secretary of State, was a member of the government. In April 2000, the Lord Chancellor adopted a new procedure for part-time judicial appointments in terms of which the appointment of a part-time immigration adjudicator was to be for a renewable period of five years in order to comply with Art 6 of the Convention. The Lord Ordinary reduced the decisions of 17 September 1997 and 21 November 1998. The Secretary of State reclaimed and argued that the Lord Ordinary had misapplied the common law test of apparent bias and had failed to consider the effect of the relevant primary legislation on the application of the common law test and that the common law test of apparent bias fell to be applied on the basis of the facts and perceptions which existed in 1997, without any reference to later Convention law or subsequent development of the common law. The petitioner argued that the Convention standard was not now higher than the common law standard, and that post 1997 developments in respect of the perceived bias of tribunals could not be ignored.
Held that: (1) the common law test for bias falls to be applied at the date of the hearing, in the light of the circumstances which existed at that time, the question was whether the observer would have concluded that there was a real possibility that the particular tribunal was biased when the hearing took place, and the question of impartiality had to be judged from the moment the judge or tribunal first became seised of the case (para 34); (2) the common law test for apparent bias and the Art 6(1) requirement of an independent tribunal are effectively the same and can be expected to produce the same result (paras 35, 37); (3) in the circumstances the Lord Ordinary had been entitled to conclude that the common law test for bias had been met (para 38); and appeal refused.
CHARANJIT SINGH raised judicial review proceedings in the Court of Session seeking, inter alia, reduction of a decision by the Secretary of State for the Home Department dated 17 September 1997 and of the special adjudicator dated 27 February 1998. The petition called before the Lord Ordinary (Mackay of Drumadoon) for a first hearing. On 10 December 2001 the Lord Ordinary reduced the decisions and remitted the matter to a different adjudicator for a fresh hearing. The Secretary of State reclaimed.
The cause called before the First Division comprising the Lord President (Cullen), Lord Kirkwood and Lord Weir for a hearing on the summar roll.
Cases referred to:
Advocate (HM) v MontgomerySC 2000 JC 111
Attorney General v Times NewspapersELR [1990] AC 109
Barrs v British Wool Marketing BoardSC 1957 SC 72
Boncza-Tomazewski v HM AdvocateSC 2000 JC 586
Borgers v Belgium (1991); 15 EHRR 92
Bradford v McLeod 1986 SLT 244
Clancy v CairdSC 2000 SC 441
Davidson v Scottish MinistersSC 2003 SC 103
Delcourt v Belgium (1970); 1 EHRR 355
Hoekstra v HM AdvocateSC 2000 JC 391
Johnson v JohnsonUNK (2000) 200 CLR 488
Law v Chartered Institute of Patent AgentsELR [1919] 2 Ch 276
Lawal v Northern Spirit LtdUNK [2004] 1 All ER 187
McFarlane v Gilchrist 2002 SLT 521
Medicaments and Related Classes of Goods (No 2) (Re)WLR [2001] 1 WLR 700
Millar v DicksonSC 2002 SC (PC) 30
Porter v MagillELR [2002] 2 AC 537
R v Bow Street Mags, ex p Pinochet Ugarte (No 2)ELR [2000] 1 AC 119
R v GoughELR [1993] AC 646
R v Income Tax Special Commissioners, ex p Morgan Grenfell & Co LtdELR [2003] 1 AC 563
R v Secretary of State for the Home Department, ex p SimmsELR [2000] 2 AC 115
Rimmer, PetrUNK 2002 SCCR 1
Starrs v RuxtonSC 2000 JC 208
Textbooks etc referred to:
Stair Memorial Encyclopaedia: The Laws of Scotland (Butterworths/Law Society of Scotland, Edinburgh, 1991 and 2002), vol 5, paras 663-667
At advising, on 24 December 2003, the opinion of the Court was delivered by Lord Kirkwood -
OPINION OF THE COURT -[1] The petitioner, who was born on 10 November 1963, is an Indian citizen, and is married with three children. In 1995 he left India and in July 1995 he entered the United Kingdom. In his petition for judicial review he sets out the circumstances in which he left India. He avers, inter alia, that he was assaulted by members from one of the movements for an independent Khalistan and that he was also threatened by the police in the Punjab. On or about 19 July 1995 the petitioner applied for leave to remain in the United Kingdom as a refugee. By letter dated 17 September 1997 his application was refused by the Secretary of State for the Home Department (hereinafter referred to as 'the respondent'). The petitioner appealed against the respondent's decision. The appeal was heard in Glasgow on 21 November 1997 by a special adjudicator who, at the conclusion of the hearing, announced that the appeal was refused. The special adjudicator's written decision was issued on 27 February 1998.
[2] In the petition the petitioner seeks reduction of (1) the decision by the respondent dated 17 September 1997 refusing the petitioner's application for asylum in the United Kingdom and (2) the determination of the special adjudicator dated 27 February 1998 refusing the petitioner's appeal against that decision.
[3] The petition came before the Lord Ordinary at a first hearing, and the submissions of the parties focused on one issue, namely whether the determination of the special adjudicator, Mr Frank Pieri, should be reduced on the ground that the special adjudicator had not constituted an 'independent and impartial tribunal' when he heard and decided the petitioner's appeal.
[4] The factual background relating to the appointment of the special adjudicator, and his conditions of service, were not in dispute. Mr Pieri is a qualified lawyer and a member of the Faculty of Advocates. Throughout the period when he considered and determined the petitioner's appeal, namely from 21 November 1997 to 27 February 1998, he was in private practice as an advocate.
[5] By letter dated 2 January 1997, the Lord Chancellor had offered Mr Pieri an appointment as a part-time immigration adjudicator. That letter contained a paragraph in the following terms:
'The appointment would initially be for a term of approximately one year made on the understanding that while the Lord Chancellor would normally hope to renew it upon its expiry, it will be understood that this cannot always be possible, and indeed there may be reasons sometimes for terminating an appointment before its expiry. If the Lord Chancellor decided to stand you down at any time, he would endeavour to give you reasonable notice but such notice might not be practicable in every case.'
The letter went on to state that, subject to the availability of work, the Lord Chancellor hoped that Mr Pieri would be able to sit as an immigration adjudicator for between 20 and 50 days a year.
[6] A memorandum giving details of the conditions of service for part-time immigration adjudicators was enclosed with the letter. Certain parts of that memorandum are of relevance.
'2. Qualifications
The primary qualification for appointment is the ability to conduct hearings and decide appeals impartially and in a judicial spirit. Legal qualifications are now essential and relevant legal experience is desirable.
5. Length of appointment
Appointments in the first instance are normally made for a period of one year, but thereafter may be renewed from time to time at the discretion of the Lord Chancellor for such periods as he may determine. This memorandum applies on appointment and re-appointment. Each appointment is made on the understanding that there is no legitimate entitlement to renewal upon its expiry. An appointment may be terminated at any time by one month's notice in writing on either side, without cause assigned. In addition, the Lord Chancellor reserves the right to suspend or terminate an appointment at any time if, in his opinion, the person appointed becomes unsuitable to perform the duties of the office by reason of inability, misbehaviour, or any other cause, or there is any likelihood that public confidence in his impartiality would be impaired.
8. Availability
The services of part-time Adjudicators are called upon as the need arises; their own commitments are borne in mind but they may at present be expected to do this work for an average of one day a week Like those doing other part-time judicial work, they are not normally permitted to do more than 50 days a year
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11. An Adjudicator should not...
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