Ilirjan Hima v The Secretary of State for the Home Department
[2024] EWCA Civ 680
Tareque Hossain v The Secretary of State for the Home Department
5 June 2024
[2024] EWCA Civ 608
Court of Appeal
Someone appealed a decision saying a judge asked too many questions at their hearing, making it unfair. The higher court said the judge asked a lot of questions but it was still a fair hearing because the questions were relevant and didn't show the judge was biased. The appeal was dismissed.
Key Facts
- •Tareque Hossain appealed a decision refusing him leave to remain in the UK.
- •The appeal focused on whether the First-tier Tribunal (FTT) hearing was procedurally unfair due to the judge's extensive questioning.
- •Hossain's application for leave to remain was initially refused due to allegations of deception in a previous application, involving a fraudulently obtained English language test certificate.
- •The Upper Tribunal Judge (UTJ) dismissed the appeal, finding the FTT hearing fair.
- •Hossain's main argument was that the FTT judge 'descended into the arena' by excessively questioning witnesses, exceeding her supervisory role.
Legal Principles
Judges should maintain a detached, supervisory role during evidence, avoiding excessive intervention that might cloud their judgment (descending into the arena).
Yuill v Yuill [1945] P 15; Jones v National Coal Board [1957] 2 QB 55
The fairness of a trial is assessed objectively; excessive interventions don't automatically render a trial unfair. The key question is whether the interventions made the trial unfair.
Southwark LBC v Kofi-Adu [2006] HLR 33 599; Keane v Sargen [2023] EWCA Civ 141
Judges have latitude in conducting proceedings, but this is not unlimited; the process must serve the judicial function of dealing with cases justly.
Southwark LBC v Kofi-Adu [2006] HLR 33 599
While a judge's role is primarily supervisory during evidence, they may ask clarifying questions after examination and cross-examination, giving both sides further opportunity to question.
WA (Egypt) [2020] UKUT 127 (IAC); Elais [2022] UKUT 00300 (IAC)
Counsel has a duty to raise concerns about inappropriate judicial conduct during a hearing.
PA (Bangladesh) [2018] UKUT 0337 (IAC)
Outcomes
The Court of Appeal dismissed Hossain's appeal.
The Court found that while the FTT judge asked many questions, her questioning, though extensive, did not make the hearing unfair. Her questions were relevant to the central issue and did not amount to taking over the case or showing partiality. The judge stayed within the bounds of acceptable judicial intervention, and the hearing was objectively fair.
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