MG (Pakistan) v Secretary of State for the Home Department

On a renewed application for permission to bring a second appeal, procedural unfairness may provide a compelling reason for permission where a procedural irregularity has tainted the earlier hearing and rendered it unfair. A refusal to accept a late skeleton argument is not unfair where the advocate remains able to make the relevant submissions. Witness statements may be admitted through confirmation and adoption, or through evidence given by reference to them. Judicial questioning on relevant matters, including Article 8 proportionality, is permissible when it remains within proper limits. A judge’s critical assessment of the evidence, or allegations of discourtesy lacking clear contextual support, does not by itself establish procedural unfairness.

MG sought renewed permission to appeal from a decision of the Upper Tribunal (Immigration and Asylum Chamber). The proposed second appeal alleged that the hearing had been procedurally unfair because the judge refused to accept a skeleton argument, did not allow witnesses to adopt their statements, asked excessive or improper questions, and displayed a rude or offensive demeanour.

The Court of Appeal considered whether those matters disclosed a compelling reason for a second appeal under the approach recognised in Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60. The central issue was whether the Upper Tribunal hearing had been materially tainted by procedural unfairness.

The renewed application for permission to bring a second appeal was refused.

1. Second appeal test. The usual second appeal test applied. A procedural irregularity may constitute a compelling reason for permission where there are good grounds for concluding that it tainted the earlier hearing and rendered it unfair. The reference to a real prospect of success in Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60 was understood as referring to the merits of the proposed appeal apart from the procedural issue.
2. Skeleton argument. The Upper Tribunal was justified in declining to accept the skeleton because it had not been served before the hearing. The advocate was not prevented from making the submissions contained in it and was under no relevant time constraint.
3. Witness statements. The appellant had been allowed to adopt his statements after confirming their contents and wishing to rely on them. Although Mrs Aziz’s statements were not literally adopted in the same way, she was permitted to give evidence by reference to them. The statements were therefore before the judge for consideration.
4. Questioning and demeanour. Most questioning came from the parties’ representatives, and the judge’s questions were directed to clarification. Questions about a daughter’s ability to use a washing machine and about the proportionality of removal were relevant to the Article 8 claim. Alleged comments about overstaying, the preparation of statements, or the judge’s manner could not establish unfairness without clearer evidence of their precise terms and context.
5. The judge’s adverse view of the evidence and the case was not itself a compelling reason for a second appeal. Even leaving aside the merits, the alleged procedural defects did not justify permission.

• Upper Tribunal (Immigration and Asylum Chamber: decision challenged on the proposed ground of procedural unfairness.
• Court of Appeal (Civil Division): renewed application for permission to bring a second appeal refused.