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Upper Tribunal finds that justice must be seen to be done

The case of Elayi (India) v Secretary of State for the Home Department [2016] UKUT 508 has highlighted the importance of the appearance of justice in immigration cases, as well as the implementation of justice itself.

The Background.

The appeal concerned an appeal of the Home Office’s refusal, in January 2015, to grant leave to remain to the Appellant under Article 8 of the Human Rights Act.

A review had been carried out of the Appellant’s English language test, and the organisation ETS (the Educational Testing Service) and the conclusion was reached that their test certificate was ‘obtained by deception’. Their application was therefore rejected under Appendix FM Section S-LTR, the immigration rules governing family members, specifically Rule S-LTR.2.2. This states that an applicant ‘will normally be refused on grounds of suitability’ if:

‘Whether or not to the applicant’s knowledge –
(a) false information, representations or documents have been submitted in relation to the application (including false information submitted to any person to obtain a document used in support of the application); or
(b) there has been a failure to disclose material facts in relation to the application.’

The Appeal to the Upper Tier Tribunal (‘the UTT’)

The Appellant’s appeal against this decision was rejected in the First Tier Tribunal. However, the Appellant’s Appeal against the First Tier Tribunal’s decision was successful. This was due to the unorthodox behaviour of the judge. Evidence was given which demonstrated that the judge had:

  1. Engaged in a private conversation with the Appellant’s representative, relating to the Appellant’s case, without the Respondent’s representative being present;
  2. This was done in the within the court room and partly out of sight and earshot of the Appellant and his spouse;
  3. It was also done before the Appellant’s hearing began;
  4. The contents of this conversation were not shared with the Appellant;
  5. The only part of the conversation that was shared was a comment concerning the Appellant’s religion, which the UTT did not consider appropriate for the judge to ask.

The Hypothetical Observer Test.

The UTT considered that this conduct failed the “hypothetical observer test”, namely whether or a reasonable person, observing this behaviour would feel as if the proceedings were lacking a due, orderly and impartial judicial process. They felt that in this case the hypothetical observer “would be gravely disturbed by the events under scrutiny”. As established in MM v SSHD [2014] UKUT 105 [14]-[18], this amounts to a material error of law which requires the judgement to be set aside.

Discretion in Rule S-LTR 2.2.

The UTT felt that it was an error to find that a breach of Rule S-LTR.2.2 was grounds for automatic refusal of the application. The rule was in fact discretionary. As the refusal letter had made it clear that the decision maker did not appreciate this, and the judge also failed to recognise this as an error, this was further grounds to allow the appeal.

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