Alhaja Alarape Alubankudi v Secretary of State for the Home Department

The test for apparent bias asks whether a fair-minded and properly informed observer, having considered all material circumstances, would conclude that there was a real possibility of bias. The observer reads the decision as a whole and is neither complacent nor unduly sensitive or suspicious.

An insensitive judicial expression may cause legitimate offence and should be avoided. It does not, however, establish apparent bias where the decision otherwise displays balanced, evidence-based, impartial reasoning and there is no indication of predisposition, irrationality, disregard of material evidence, or reliance on irrelevant matters.

The appellant, a Nigerian national aged 71, applied for indefinite leave to remain outside the Immigration Rules. The Secretary of State refused the application, including under the Rules and on Article 8 grounds.

The First-tier Tribunal dismissed her appeal. In its proportionality assessment it found that adequate care and financial support would be available in Nigeria. It also stated that the United Kingdom was not a retirement home for the rest of the world.

Permission to appeal was granted on the arguable ground that this statement created apparent bias. The central issue before the Upper Tribunal was whether, read in its full context, the First-tier Tribunal determination was vitiated by apparent bias.

1. Appeal dismissed. The First-tier Tribunal decision was affirmed. The Upper Tribunal held that the challenged statement did not give rise to a real possibility that the First-tier Tribunal Judge was biased.

2. The applicable test was that in Porter v Magill [2001] UKHL 67. The court must identify all circumstances bearing on the allegation and ask whether a fair-minded and properly informed observer would find a real possibility of bias. That observer has all material facts and is balanced, rather than complacent, unduly sensitive or suspicious.

3. The observer would find no evidence of a predisposition against the appellant, immigrants, or immigration generally. The determination as a whole contained cogent, evidence-based findings. No irrationality, failure to consider material evidence, or reliance on immaterial considerations was established. Its relevant passages used balanced and dispassionate language and fairly summarised the evidence.

4. The phrase concerning a retirement home was unfortunate, insensitive, and capable of causing offence and unease. Judges should avoid such expressions. Judicial office-holders must remain alert to the perceptions and sensitivities of litigants and wider audiences, especially in a multicultural society.

5. Nevertheless, the properly informed observer would recognise the phrase as reflecting comparable statements in higher-court authority and would assess it alongside the whole determination. The observer would therefore conclude that the determination was fair, balanced, considered and impartial. The apparent-bias challenge had no merit.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and affirmed the First-tier Tribunal decision: [2015] UKUT 542 (IAC).
• First-tier Tribunal: dismissed the appellant's appeal against the Secretary of State's refusal of her application for indefinite leave to remain.