Upper Tribunal Considers Allegation of Bias
The case of Alubankudi (Appearance of bias) [2015] UKUT 542 was heard at Field House on 16th September 2015 before The President, The Hon. Mr Justice McCloskey and Upper Tribunal Judge Canavan. The decision was promulgated on 23rd September 2015. The case involved a 71 year old national of Nigeria who had applied for Indefinite Leave to Remain out with the Immigration Rules, having arrived in the United Kingdom in 2009. The headnote reads:
(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 multicultural 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.
The appeal was dismissed at the First-tier with the Judge concluding that although the decision interfered with the Appellant’s right to a private and family life, the decision was “in accordance with the law and necessary for the economic well-being of society“.
The First-tier Tribunal Judge had considered:
- the lack of evidence that the Appellant spoke English;
- the access to the NHS and further recourse to NHS treatment; to which the Applicant’s daughter knew she was not entitled;
- no evidence of “substantial integration” into life;
- no evidence of an extensive private life outside of the family unit; and
- no evidence that the Appellant required long term personal care; the Appellant’s daughter could continue to provide financial support.
At paragraph 51 of the determination the Judge had remarked
‘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’
Permission had been granted on the grounds of arguable bias and lack of fair hearing.
The First-tier Tribunal Judge had found: “While [the daughter’s] desire to care for the Appellant in the UK is natural and understandable neither could have had any legitimate expectation that the Appellant would be allowed to remain unless she was able to bring herself within the requirements of the Immigration Rules. There is a great deal of authority to the effect that the UK is not a retirement home for the rest of the world.” It was submitted that the reference to “retirement home”, together with the relevant features identified by the Judge demonstrated the Judge’s predisposition against the Appellant.
The Upper Tribunal emphasised the “common law right to a fair hearing”, at paragraph 6 and recognised “the hypothetical reasonable observer” test; an observer who is in “possession of all material facts”. The Upper Tribunal highlighted “the doctrine of apparent bias has its roots in a principle of some longevity and indisputable pedigree, namely the requirement that justice not only be done but manifestly be seen to be done”.
The Tribunal concluded, at paragraph 10, that there was no suggestion that the Judge had “any predisposition against persons such as this Appellant or is anti-immigrant or anti-immigration generally” and secondly when read as whole the Judge showed “cogent evidence based reasoning“. The Tribunal noted that there was no criticism of the determination in respect of irrationality or ignorance of the material evidence. They concluded that these factors might make a difference to the decision. The decision did consider and conclude that there were no compelling or compassionate circumstances. The Tribunal noted at paragraph 11 the use of “language”, which they concluded was “of the dispassionate, disinterested adjudicator giving primacy to the requirement of impartiality enshrined in the statutory judicial oath of office”.
The Tribunal concluded that the observer would find “an element of empathy in the passages of the FtT’s determination reproduced above” and would consider statements made in terms by superior courts. The Upper Tribunal gave the following examples:
“Just as we cannot provide medical treatment to the world so we cannot educate the world”
Lord Nicholls in N v. Secretary of State for the Home Department [2005] UKHL 31 (5 May 2005) at [17]:
“But, as the Strasbourg jurisprudence confirms, Article 3 cannot be interpreted as requiring contracting states to admit and treat AIDS sufferers from all over the world for the rest of their lives ….
True it is that a person who comes here and receives treatment while his application is being considered will have his hopes raised. But it is difficult to see why this should subject this country to a greater obligation than it would to someone who is turned away at the port of entry and never receives any treatment.”
Finally the Tribunal concluded that “Still further reassurance would be provided by the truism that, day and daily, there are countless examples in the FtT and Upper Tribunal of cases not dissimilar to that of the Applicant failing on Article 8 ECHR grounds, properly so”.
The Tribunal considered the choice of words “unfortunate” and “insensitive” and warns that Judiciary “must have their antennae tuned to the immediate and wider audiences, alert to the sensitivities and perceptions of others, particularly in a multicultural society”. The appeal was dismissed.
The case reaffirms the legal position in respect of the objective bystander; a bystander who is in possession of the relevant and salient facts. This case heeds a word of warning to the judiciary as to their choice, use of language and encourages them to be quick to respond to change and other outside influences. Those who make decisions are encouraged to appreciate the feelings of others and respond to those sensitivities. These principles may become ever more important as society continues to evolve in a difficult legal and political climate.
It may well be the case that despite having established a life in the United Kingdom over the course of a number of years, having established loving and caring relationships, where return or separation may have sad irreversible consequences an assessment of the factual matrix may still lead to the inevitable conclusion that removal or return is a proportionate response and is found to be in accordance with the law. Delivering and explaining these delicate decisions can never be an easy task.
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Alexandra Pease
