AB (Turkey) v Secretary of State for the Home Department

In asylum and immigration proceedings, fairness requires an appellant to have a reasonable opportunity to answer significant adverse concerns on which the decision-maker intends to rely, particularly where those concerns may be met by further evidence. An adjudicator’s premature view does not automatically establish disqualifying bias. The court must assess the judge’s conduct as a whole and whether the view affected the conclusion. Newspaper evidence must be assessed critically, but is not excluded merely because of its form. In evaluating family-related risk, decision-makers must account for materially different family histories. The appeal was allowed and the matter remitted for a complete rehearing.

The appellant, a Turkish citizen, claimed asylum on the basis of alleged PKK involvement, detention and torture, and persecution connected with his family. An adjudicator rejected substantially his account in a determination promulgated on 21 February 2005. The Asylum and Immigration Tribunal dismissed his challenge in a determination entered on 11 December 2006.

He appealed on the grounds that the adjudicator had unfairly refused to recall him after indicating concerns about his evidence, and had demonstrated bias in his treatment of a newspaper article concerning his brother’s alleged killing by security forces. The appeal also raised whether the Tribunal’s alternative assessment of family risk was adequate.

The appeal was allowed and the whole matter was remitted to the Asylum and Immigration Tribunal for a complete rehearing.

1. Procedural fairness. The adjudicator had mounted an extensive attack on the appellant’s evidence and reached adverse conclusions on matters that could potentially have been explained by further evidence. Once counsel requested that the appellant be recalled, fairness and proper scrutiny required an opportunity to address the significant concerns. The further process could have involved cross-examination or questions from the adjudicator and need not have been lengthy. Failure to cross-examine did not, by itself, amount to a concession that the evidence was accepted.
2. Bias. The court distinguished interest bias from subject-matter or adjudicatory bias. An established interest in the outcome, or one that might reasonably be attributed to the judge, disqualifies the judge. A premature view about the merits does not automatically do so. Applying the approach in Porter v McGill [2002] 2 AC 357, the court must examine the judge’s conduct as a whole and ask whether the premature view affected the conclusion so that it should not be upheld. The Tribunal was right to approach the newspaper-article complaint in that way.
3. Newspaper evidence and family risk. The adjudicator had accepted that the newspaper article was authentic and had not excluded it merely because it was a newspaper report. It was open to him to conclude that the article did not sufficiently establish that the attack was carried out by Turkish security forces rather than criminal elements, although Buxton LJ and Laws LJ indicated that they might have reached a different view. Since the case was being remitted in any event, that issue was to be reconsidered. The Tribunal’s alternative reasoning, that the absence of harm to other siblings showed no risk, was insufficient without distinguishing family members who had materially different histories with the authorities.
4. Ward LJ and Laws LJ agreed with the disposition and the remittal on all questions. The matter was to receive an early and complete rehearing.

• Court of Appeal (Civil Division): Appeal allowed; the whole matter remitted to the Asylum and Immigration Tribunal for a complete rehearing.
• Asylum and Immigration Tribunal: Determination entered on 11 December 2006, finding no error of law in the adjudicator’s decision.
• Adjudicator: Determination promulgated on 21 February 2005, rejecting substantially the appellant’s asylum account.