Upper Tribunal (Immigration and asylum chamber), 2017-08-30, AA/06906/2014 & Ors.
| Jurisdiction | UK Non-devolved |
| Date | 30 August 2017 |
| Published date | 20 September 2017 |
| Hearing Date | 27 June 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | AA/06906/2014 & Ors. |
Appeal Number: AA069062014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06906/2014
& Others
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 27 June 2017 |
On 30 August 2017 |
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Before
MR C M G OCKELTON, VICE PRESIDENT
UPPER TRIBUNAL JUDGE O’CONNOR
UPPER TRIBUNAL JUDGE SMITH
Between
MM v SSHD (AA/06906/2014)
EDO AND OTHERS v SSHD
(HU/01879/2015; HU/01881/2015; HU/01882/2015; HU/01883/2015)
SSHD v KHATTAB (HU/13552/2015)
SSHD v COMERY (IA/00866/2016)
SSHD v BOATENG-DANSOH (IA/23617/2015)
SSHD v KAUR (IA/30887/2015)
SSHD v BOPOLONGA (IA/31116/2015)
SSHD v BOATENG AND BEMPONG (IA/31918/2015)
SSHD v WANG (IA/32046/2015)
SSHD v OKPALA (IA/32286/2015)
PATEL v SSHD (IA/32901/2015)
ECO v STEPHEN (OA/07779/2015
SSHD v SHINWARI (RP/00104/2016)
DECISION AND REASONS
INTRODUCTION
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The Tribunal has arranged to hear in the same list a number of appeals from a single judge, Judge Majid. This no doubt unusual arrangement has been prompted by the following factors. First, many decisions by judge Majid give rise to successful applications for permission to appeal. Secondly, the grounds of appeal have considerable similarities: they frequently include assertions that insufficient reasons are given for even a well-informed reader to work out the reasons for the decision, that there is no reference in the decision to the relevant law or the contested facts, and sometimes that there were problems of communication or of fairness during the hearing. Thirdly, the determinations themselves are very short and substantial parts of them are word for word the same, or nearly so, from determination to determination, leaving only relatively small parts dealing with the individual case. Thus, despite the dissimilarities between the appeals before the First-tier Tribunal that are determined by Judge Majid’s decisions, the numerous appeals from them to this Tribunal are essentially similar and raise similar issues.
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We are aware of the dangers that may be posed by collecting together a number of appeals in this way. There is the possibility that we will be influenced in making our decision on any appeal by factors that do not in truth belong to that appeal. There is also the difficulty of reputation: parties and judges may, whether consciously or not, attribute faults to a judge only for the bad reason that there is a weight of opinion against him. On the other hand, when a body of appeals sharing characteristics such as those set out above are heard together, we have the advantage of comparison, and in the present case we have decided that it is necessary in the interests of justice that as well as deciding the individual appeals on their own merits we should consider the Judge’s work as it appears in these decisions as a whole. It is only by making comparisons that it is possible to say whether a particular paragraph or series of paragraphs is indeed common to several determinations. It is only by making comparisons that it is possible to say whether a particular apparent error is the result merely of a slip, or whether it pervades a judge’s work.
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There is a further factor, which we express with considerable caution. It is this. In the Upper Tribunal we hear numerous appeals in which a single point of error or omission is said to be discoverable in the determination under appeal. We have, of course, no duty to the First-tier Tribunal or its judges, other than perhaps to be clear in any guidance we give to them: our duties are to the law, the parties and the interests of justice. Nevertheless, in undertaking those duties we are likely to make our decisions on the assumption that each appeal is from a decision of a judge who has been duly appointed and trained, and, broadly speaking, may be considered to know and do the job with a degree of skill and competence. The overwhelming majority of decisions under appeal are capable of giving the reader confidence that that is the case. Where there is an omission or slip in an otherwise apparently wholly competent and careful judgment it may well be that on appeal the proper conclusion is that the judge did have the correct facts, or law, or principle in mind, and that the point on which the appeal is brought is therefore without merit. That is one of the reasons why any alleged error must be looked at in the context of the decision as a whole. This is the universal experience of those who take judicial decisions on the work of others, whether on appeal or review.
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It would, however, be quite wrong for those determining appeals to make assumptions about the merits of a particular ground of appeal in a context that does not apply to the judge in question. If, therefore, it should be that review of a judge’s decisions leads to the conclusion that there is something lacking in the skill or competence that he brings to his task, it is right that we should say so. A suspicion that might arise from examining only one case, as is normally the position on appeal, may be either confirmed or wholly dispelled by examining a group of cases.
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We are also aware that Judge Majid has a physical disability: he is blind. Indeed, he mentions that expressly or by implication in several of the decisions under appeal. We understand that the statutory duty to make reasonable adjustments is carried out by the provision of an assistant to help him to appreciate the contents of documents. It may be wholly unreasonable to expect him to assimilate a complex matter in writing at short notice. But it is not, and indeed cannot reasonably be, suggested that blindness prevents a person learning or applying law, or performing the crucial judicial tasks of hearing both sides and reaching, and expressing, a properly reasoned conclusion. It is failure in these areas that form the grounds of appeal we have to consider.
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We each have considered all the issues raised by each of the appeals, and we have each made substantial contributions to this decision. In this general part of our decision (paras [7] – [47]), we consider those issues that appear to us to be common to many or all of the decisions under appeal. It is to be read with the decisions on the individual appeals, which follow.
THE JUDGE’S TASK
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In every one of the decisions under appeal there occurs the following paragraph, word for word or very nearly so:
“I reminded myself of the judgment of Henry J (later on promoted to be a Lord Justice) in ex parte Gondolia [1991] Imm A.R. 519. It is not incumbent upon me to isolate every single piece of evidence and indicate whether I have found it relevant to the issue. I am only obliged by the superior precedents to give “sufficient and adequate” reasons and I am not under a duty to refer to each and every piece of evidence and it therefore does not follow that because I have not referred to certain facts, they have not been taken into account.”
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It is perhaps worrying that the judge finds it necessary to resist the hypothetical critic of his decision on the ground of lack of detail; it would in addition be surprising if a sentiment in an extempore judgment on judicial review of the Immigration Appeal Tribunal refusing permission to appeal in a primary purpose appeal in the late 1980s were today to be regarded as the locus classicus on the duties of a Judge of the First-tier Tribunal. In fact, not merely does the judgment in Gondolia not appear to contain any such guidance as that cited, but it is impossible to draw such general wisdom from it either. The decision of this Tribunal in Kalim v SSHD (IA/30716/2014) contains a careful examination and analysis of Gondolia by Deputy Upper Tribunal Judge O’Ryan, which we endorse and adopt with gratitude. That was an appeal by an appellant against a decision of Judge Majid, so although it is unreported it is highly likely that it was brought to the Judge’s attention. The appellant complained that the Judge had failed to consider the relevant Immigration Rules, failed to consider the evidence, failed to make findings of fact, and failed to give adequate reasons for his conclusion. The judge found that the inadequacies of the determination demanded that it be set aside, with no findings preserved.
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It is difficult to see that there could be any good reason for the judge to cite Gondolia. His doing so, and the words surrounding the citation, suggest not merely that he has not read (or has forgotten) Gondolia itself, but that he has also not read any of the other numerous decisions on the duties of a judge in this regard. Even if he wanted to confine himself to the era of Gondolia, the judge’s own research ought to have led him to the words of Schiemann J in R v IAT ex p Mohd Khan [1992] Imm AR 367, 374, another primary purpose case:
“In my judgment adjudicators should indicate with some clarity...
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