CD (DR Congo) v Secretary of state For the home department

A judge who has expressed views at an earlier error-of-law stage need not recuse himself merely because the same evidence will later be considered when remaking the decision. The question is whether, in all the circumstances, a fair-minded and informed observer would conclude that there was a real possibility of bias. Inappropriate language in an earlier decision is not conclusive when read with directions for a further hearing and oral evidence. Recusal is required only where the judge has prejudged the issue and there is a reasonable apprehension that he cannot or will not reconsider it with an open mind.

CD’s original asylum claim was rejected. His fresh claim, based on political activities in the United Kingdom, succeeded before the First-Tier Tribunal, but the Secretary of State appealed. Deputy Judge Alis of the Upper Tribunal found a material error of law and directed a resumed hearing with oral evidence. CD then sought the Deputy Judge’s recusal, alleging that his earlier comments showed predetermination. The application was refused, the decision was remade against CD, and his asylum and humanitarian protection claims were dismissed. The central issue before the Court of Appeal was whether the earlier language created apparent bias or required recusal.

Appeal dismissed. Lord Justice Jackson gave the leading judgment. Lord Justice Rimer and Sir Nicholas Wall agreed.

1. Sections 11 and 12 of the Tribunals, Courts and Enforcement Act 2007, together with Part 3 of the applicable practice directions, provide the procedural context. After finding an error of law, the Upper Tribunal may remake the decision and may direct oral evidence for that purpose.
2. The Deputy Judge’s language in paragraphs 28 and 39 of his initial decision was inappropriate. Read in context, however, it did not show that he had finally decided the issues reserved for the resumed hearing. He had identified an error of law, treated certain factual findings as unsustainable, and directed that the matters be reconsidered after further evidence.
3. The apparent-bias test is whether all the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased, as stated in Porter v McGill [2001] UKHL 67, [2002] 2 AC 357. Although the language might initially alarm such an observer, its proper context dispelled that concern. The case therefore did not fall within the recusal situation identified in Locabail (UK) Limited v Bayfield Properties Limited [2000] QB 451.
4. A judge may decide a case in which he has expressed views at an earlier stage unless there is a reasonable apprehension that he will approach it with a closed mind. That apprehension arises where he appears to have prejudged the issue and it is reasonably feared that he cannot or will not revisit it with an open mind: Sengupta v Holmes [2002] EWCA Civ 1104. The Deputy Judge did revisit the relevant issues with an open mind. The absence of an interpreter at the earlier hearing did not affect the recusal issue. He was right not to recuse himself, and the appeal was dismissed.

• Court of Appeal (Civil Division): Considered CD’s appeal against the refusal to recuse Deputy Judge Alis. Held that there was no apparent bias or predetermination and dismissed the appeal.
• Upper Tribunal, Immigration and Asylum Chamber: On the Secretary of State’s appeal, Deputy Judge Alis found a material error of law in the First-Tier Tribunal’s decision. After a resumed hearing, he refused recusal, remade the decision, and dismissed CD’s asylum and humanitarian protection claims.
• First-Tier Tribunal: Allowed CD’s appeal concerning his fresh asylum claim, finding that his activities in the United Kingdom had generated a real risk of persecution on return.
• Immigration and Appeal Tribunal: Dismissed CD’s original asylum appeal.