Hossain v Secretary of State for the Home Department [2024] EWCA Civ 608 (05 June 2024)
The Court of Appeal held in this case that FTTJ Beg's persistent questioning of an immigration appellant, Mr Tareque Hossain, a Bangladeshi national, who had been found to have fraudulently obtained an English language competence test did not indicate that she had "descended into the arena" such as to adversely affect her evaluation of the evidence. FTTJ Beg's questions concerned matters that fell within the areas previously covered by the evidence and were clearly directed to the central issue of whether Mr Tareque Hossain had undertaken the test. There was no evidence that she was unable to consider the evidence objectively. It was fairer that she asked questions about the matters going to the central factual issue rather than leave her concerns unaddressed, and without giving Mr Hossain and his witnesses an opportunity to deal with them. Mr Tareque Hossain had appealed against a decision upholding the refusal of his application for leave to remain in the UK. He entered the UK on a student visa but his leave to remain was curtailed on the basis that he had relied on an English language test ("TOEIC") which was fraudulently obtained from the Educational Testing Service ("ETS"). He could not appeal and did not challenge that finding by way of judicial review but claimed asylum (later withdrawn) and made a series of applications the last of which was a further application for leave to remain on the basis of his family and private life made on 21 October 2020. His application was refused on the basis that his TOEIC exam involved cheating.
He appealed to the First-tier Tribunal and at the hearing, he and two supporting witnesses gave evidence. They were all cross-examined on the choice of college where the test was taken, why one of the witnesses had accompanied him to the test and what had happened on the day of the test. The FTTJ did not find Mr Hossain to be a credible witness and did not accept the evidence of the other witnesses. Subsequently, Mr Hossain appealed to the Upper Tribunal on the basis that the FTTJ had embarked upon cross-examination which involved questioning in a very aggressive manner and went beyond the judge's remit of an independent adjudicator. Dismissing the appeal, the UT determined that the FTT hearing had not been unfair. Mr Hossain relied on extracts from the transcript of the FTT hearing in submitting that the UT had erred in concluding that the FTT hearing was procedurally unfair because the judge had departed from her "proper, supervisory role"and improperly "descended into the arena", which had adversely affected her evaluation of the evidence. He also submitted that the UT had been wrong to rely on the fact that his counsel had not raised concerns concerning the judge's conduct during the course of the hearing. But the Court of Appeal dismissed the appeal and explained that the FTTJ did not descend into the arena" in the manner suggested and she did not assume "the robe of an advocate" and she did not pick up the baton on behalf of the SSHD and run with it.
In Serafin v Malkiewicz and others (Media Lawyers Association intervening) [2020] 1 WLR 2455, the Supreme Court considered the approach the court should take when considering the effect of a judge's interventions during the course of a hearing. The court noted that the "leading authority on inquiry into the unfairness of a trial remains" Jones v NCB. Lord Wilson noted that trial judges are "more proactive and interventionist" and the observation that "interventions during oral evidence … continued to generate a risk of their descent into the arena, which should be assessed not by whether it gave rise to an appearance of bias in the eyes of the fair-minded observer but by whether it rendered the trial unfair".
Lord Wilson referred to what Hildyard J had said in M & P Enterprises (London) Ltd v Norfolk Square (Northern Section) Ltd [2018] EWHC 2665 (Ch) about the difference in the approach to an allegation that a trial had been unfair and to an allegation that the judge had been biased. Lord Wilson noted that Hildyard J "added that they required appraisal from different perspectives for, while the fairness of a trial required objective judicial assessment, the appearance of bias fell to be judged through the eyes of the fair-minded and informed observer".
Procedural fairness
As to the first issue, Moylan LJ (with whom Asplin and Elisabeth Laing LJJ agreed) said that it was clear from authorities such as Keane v Sargen [2023] EWCA Civ 141 that the courts have repeatedly warned of the dangers of judges intervening when witnesses are giving evidence. But the court was also referred to some authorities in which unfairness was alleged because a point had not been raised during the course of the hearing. These cases did not deal directly with the issues raised by the present appeal, but they provided an additional perspective because they demonstrated that a judge can also be criticised if they do not raise matters on which their decision was based. The cases were HA v SSHD (No 2) [2010] CSIH 28 and Abdi and Ors v ECO [2023] EWCA Civ 1455. In HA v SSHD the critical question was whether or not the immigration judge was entitled to base his conclusion to some extent upon a matter which had not been raised during the course of the hearing before him.
The opinion of the court in HA, given by Lord Reed, considered a number of authorities which had addressed the fairness of proceedings including R v SSHD, ex p Doody and Ors [1994] 1 AC 531. He noted Lord Mustill's observation in that case (in a speech with which the other members of the House expressed their agreement) at p. 560D that "what fairness requires is essentially an intuitive judgment. Although it is possible to identify a number of general principles, they cannot be applied by rote identically in every situation, 'what fairness demands is dependent on the context of the decision'". It is fact-specific and context-specific. One such example given by Lord Reed was that "the tribunal may identify an issue which has not been raised by the parties to the proceedings, but it will be unfair, ordinarily at least, for it to base its decision upon its view of that issue without giving the parties an opportunity to address it upon the matter". Moylan LJ noted that in one of the cases to which Lord Reed referred on that issue, Sahota v IAT [1995] Imm AR 500 at p. 504 one of the grounds on which judicial review had been sought had been that there had been "a breach of natural justice because the Adjudicator failed to put to the applicant before her critical questions which related to her determination". Moylan LJ held that:
68. The authorities make clear that the issue is context and fact-specific. This can again be seen from, among other cases, HA v SSHD (No 2) in which Lord Reed quoted what Lord Mustill had said in R v Secretary of State for the Home Department, ex p Doody and Ors [1994] 1 AC 531, namely, I repeat, that: "Although it is possible to identify a number of general principles, they cannot be applied by rote identically in every situation, 'what fairness demands is dependent on the context of the decision".
69. The question of whether a hearing was unfair is an objective assessment. This can be seen, for example, from Lord Wilson's evident approval of Hildyard J's observation that "the fairness of a trial required objective judicial assessment".
70. I also agree with Mr Biggs' submission that a written transcript does not provide a complete picture of what transpired during a hearing because, for example, it does not convey intonation or the full effect of the manner in which questions were asked (and answered).
71. I do not, however, agree with his submission that a trial will be unfair whenever a judge, as it is described in short, descends into the arena. A trial is not unfair, as he submitted, because of the risk (as he emphasised) that a judge will not be able to undertake an objective evaluation of the evidence or that he will be unable properly and fairly "to complete his task".
72. As set out in Keane v Sargen, at [59], "excessive interventions by the judge during oral evidence will not necessarily render a trial unfair" and, at [66], the "ultimate question, however, is whether the Judge's interventions madethe trial unfair".
Moylan LJ explained that judge's questioning which was challenged occurred after the examination of each witness by counsel and after she had expressly given counsel an opportunity to ask further questions. She asked a significant amount of questions, and at times her questioning was persistent. Although there might have been an unusual number of questions, Moylan LJ said it was necessary to look at what happened qualitatively as well as quantitively. Moylan LJ further held as follows:
74. … There is nothing to suggest that her questioning could be described overall as hostile. Further, I agree with Mr Tabori's submission that the FTTJ was not pursuing her own line or lines of inquiry but was asking questions about matters that fell within the areas previously covered by the evidence including the SSHD's cross-examination and, indeed, were questions directed to the central issue of whether the Appellant had undertaken the language test.
75. Looking at the conduct of the hearing overall, I have come to the clear conclusion that the FTTJ stayed well within the bounds identified in the cases including Jones v NCB. Her conduct did not begin to impact on the course of the hearing in the manner which happened in that case or other similar cases. She did not "descend into the arena" in the manner described by Mr Biggs; she did not assume "the robe of an advocate"; and she did not pick up the baton on behalf of the SSHD and run with it. As referred to above, she did not interfere with the evidence-in-chief or the cross-examination and it could not possibly be said that she took over the conduct of the case or acted as a second advocate on behalf of the SSHD.
76. As for her judgment, the FTTJ clearly, and rightly, took into account the evidence given by the Appellant and his witnesses in the answers they gave to her questions but this does not, as Mr Biggs submitted, suggest that she was not able to consider the evidence objectively nor that she focussed on these parts of the evidence. The FTTJ clearly, and appropriately, took all the evidence into account when reaching her conclusions.
Moylan LJ concluded that it was fairer that she asked questions about the matters going to the central factual issue she had to decide, namely whether Mr Hossain had taken the test, rather than leave her concerns unaddressed without giving him and his witnesses an opportunity to deal with them. Accordingly, the UT had not erred in law in deciding that the hearing before the FTT was fair.
Counsel's duty
As to counsel's duty, Moylan LJ said that in general counsel had a duty to raise concerns about the fairness of a hearing during the course of it. However, the absence of such a complaint could not make an unfair trial fair —and its relevance would depend on the particular circumstances. The court applied PA (protection claim: respondent's enquiries; bias) Bangladesh [2018] UKUT 337 (IAC) and held that absence of a complaint was a material factor which the UT was entitled to take into account when deciding whether the FTT hearing had been unfair.
Comment
Interestingly, by contrast, in Hima v SSHD [2024] EWCA Civ 680, the Court of Appeal found that the FTTJ's cross-examination of the applicant, Ilirjan Hima (an Albanian) was not a minor departure from ideal practice. The cross-examination showed that FTTJ Mills had entered the arena to an impermissible extent, and that his treatment of the appellant's legal representative when he objected to such questioning also impacted on the overall fairness of the hearing.