Dahir Elmi Abdi & Ors v Entry Clearance Officer
[2023] EWCA Civ 1455
Ilirjan Hima v The Secretary of State for the Home Department
26 June 2024
[2024] EWCA Civ 680
Court of Appeal
A man's immigration appeal was unfair because the judge acted like a prosecutor, not a neutral judge. The judge asked too many questions, criticized his lawyer, and made decisions based on things not properly presented. The higher court said the whole process needs to be redone by a different judge to be fair.
Key Facts
- •Ilirjan Hima, an Albanian citizen, applied for a residence card as the extended family member of an EEA national.
- •His application was refused by the Secretary of State for the Home Department (SSHD) on the grounds of a marriage of convenience.
- •Hima appealed to the First-Tier Tribunal (FTT), which dismissed his appeal.
- •He appealed to the Upper Tribunal (UT), which also dismissed his appeal.
- •Hima appealed to the Court of Appeal, arguing that the FTT hearing was unfair.
Legal Principles
In marriage of convenience cases, the burden of proof lies on the SSHD to show the marriage is not genuine.
Agho v SSHD [2015] EWCA Civ 1198 at [13] and Sadovska v SSHD [2017] UKSC 54
Bias is a prejudice against one party for reasons unconnected with the legal or factual merits.
Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468
The test for apparent bias is whether a fair-minded and informed observer would conclude there was a real possibility of bias.
Porter v Magill [2001] UKHL 67
Determining whether a hearing was unfair requires an objective assessment of the judge's conduct.
Serafin v Malkiewicz [2020] UKSC 23
Judicial unfairness may not always vitiate a decision; the effect of the unfairness on the outcome is relevant.
Jahree v State of Mauritius [2005] UKPC 7
Outcomes
The Court of Appeal allowed the appeal.
The FTT judge's conduct rendered the hearing unfair due to inappropriate cross-examination, reliance on a point not raised with the appellant, and unfounded criticisms of the appellant's representative.
The decisions of the FTT and UT were set aside.
The cumulative effect of the FTT judge's unfair actions meant the outcome could not stand.
The matter was remitted to the FTT for rehearing by a different judge.
To ensure a fair hearing for the appellant.
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