MK (Burma) v Secretary of State for the Home Department

In an immigration appeal, apparent bias may arise where tribunal members’ questioning is so extensive and prosecutorial in character that they appear to assume the role of prosecutor. The tribunal’s function is to judge, not to prosecute, and it must avoid conduct creating that appearance. An appeal alleging apparent bias should not be allowed merely by consent without scrutiny by the appellate court. Where the circumstances justify concern about apparent bias, the appropriate order may be to allow the appeal and remit the matter to a differently constituted tribunal.

MK appealed from a decision of the Asylum and Immigration Tribunal dated 5 April 2006, identified as [AIT No. AS/19157/2004], which had dismissed his appeal. Permission to appeal was granted on the ground of apparent bias, based on the number and nature of questions asked by the tribunal panel. No actual bias was alleged.

The Secretary of State did not contest the appeal and proposed remission to a differently constituted tribunal. The central issue was whether the Court should scrutinise the apparent-bias allegation and whether remission was appropriate.

1. Appeal allowed. The Court of Appeal remitted the matter to a differently constituted Asylum and Immigration Tribunal.
2. An appeal alleging apparent bias should not be allowed without judicial scrutiny merely because the respondent does not contest it or the parties consent to remission. The court examined the papers, including the notes of evidence of the appellant and his partner.
3. The questioning by the tribunal panel was unusually extensive. The Secretary of State’s representative asked about 44 questions of the appellant, while the panel asked nearly twice that number. The questions were substantially in the nature of cross-examination. The panel questioned the appellant’s partner in a similar manner and asked more than twice the number of questions asked by the representative.
4. Guidance in two Immigration Appeal Tribunal authorities warned immigration judges against creating the appearance of taking on the prosecutor’s role. Their proper role was that of judge. Although those authorities concerned cases without representation for the Secretary of State, the guidance was relevant to the appearance created in this case.
5. In those circumstances, the Court understood and accepted the Secretary of State’s position that remission to a different tribunal should not be contested. An order was made in the agreed terms.

1. Court of Appeal (Civil Division) — On 20 February 2007, the appeal was allowed and the matter was remitted to a differently constituted Asylum and Immigration Tribunal: [2007] EWCA Civ 187.
2. Asylum and Immigration Tribunal — On 5 April 2006, the tribunal dismissed MK’s appeal: [AIT No. AS/19157/2004].