BW v Secretary of State for the Home Department

A tribunal judge must maintain an open mind until the adjudicative process has concluded. A premature indication that the judge has effectively decided a fundamental issue creates an appearance of unfairness and may deny the party a fair hearing.

In the rare case where evidence of events at a first-instance hearing is needed to establish unfairness, a former advocate may provide a witness statement. Legal submissions must be kept distinct from evidence. Ordinarily, an advocate who becomes a witness should not conduct the subsequent appeal, and the respondent must state clearly whether the witness evidence is disputed.

The appellant appealed against the First-tier Tribunal’s dismissal, promulgated on 18 July 2014, of his appeal against the Secretary of State’s decision to remove him to Afghanistan following refusal of his asylum claim.

The Secretary of State conceded that the First-tier Tribunal’s decision could not stand. The material issue was the judge’s undisputed statement, made before closing submissions, that he had effectively decided whether photographs depicted the appellant. The appeal also raised the proper use of a witness statement from the appellant’s former advocate to prove events at the first-instance hearing.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside and the appeal was remitted to a differently constituted First-tier Tribunal. No findings of fact were preserved.

2. The judge’s undisputed intervention, before the appellant’s closing submissions, showed that he had effectively made up his mind on an issue fundamental to the outcome. An adjudicator must conscientiously retain an open mind until the process is complete. The intervention created a clear appearance of unfairness and denied the appellant a fair hearing.

3. The Tribunal gave guidance on evidence from advocates. A representative may, in a rare and appropriate case, make a witness statement about events at the first-instance hearing where it is needed to establish procedural unfairness and the determination does not itself resolve the point. An application for permission to appeal must distinguish evidence about events from legal submissions and argument.

4. Where an advocate becomes a necessary witness, the advocate should ordinarily not present the Upper Tribunal appeal. The roles of advocate and witness are distinct. A different representative should conduct the appeal unless the relevant facts are undisputed. A rule 24 response should state whether the witness statement is accepted or identify the matters in dispute.

5. The guidance was reinforced by the professional duties in the Bar Standards Board Handbook. The appellant’s former counsel had properly stepped aside after providing the witness evidence.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision, and remitted the matter for a fresh hearing before a differently constituted tribunal.
• First-tier Tribunal: Dismissed the appellant’s appeal against the removal decision on 18 July 2014.