Klaus Peter Wagner v Secretary of State for the Home Department

A party has a right to a fair hearing, which centrally requires a proper opportunity to present and answer the case on all material issues. Procedural unfairness is a single question: it is wrong to separate the existence of an irregularity from its possible effect on the outcome.

Advocates must not use aggressive questioning, confrontation, or comments disguised as questions. A judge should intervene where such conduct crosses the boundary of legitimate advocacy. Unchecked improper advocacy can render a hearing unfair.

A tribunal commits a material error where it fails to consider significant evidence bearing on findings central to the appeal. In an Article 8 assessment outside the Immigration Rules, compelling dependency and medical evidence may outweigh the public interest in immigration control.

The appellant, a South African national, appealed against the refusal of leave to remain. The First-tier Tribunal dismissed his appeal on 16 February 2015.

He alleged that the presenting officer had bullied him and his wife, and that the First-tier Tribunal Judge had tolerated this conduct, producing an unfair hearing. The appeal also concerned the First-tier Tribunal’s treatment of medical evidence about the appellant’s British wife and her dependency upon him as her carer.

The Upper Tribunal had to determine whether the hearing was unfair, whether the First-tier Tribunal had erred in its assessment of the medical evidence, and whether removal would be a disproportionate interference with the couple’s Article 8 rights.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside. It had failed to consider a material medical letter confirming that the appellant’s wife required her husband’s assistance, and had overlooked a statement in other medical evidence that she could not cope living alone. Those omissions materially undermined its sceptical findings about her health and dependency and amounted to a failure to ensure a fair hearing.

2. The complaints about the presenting officer’s conduct did not independently establish that the appellant and his wife had been prevented from giving evidence or bullied. The appellant was legally represented, no objection was raised at the hearing, and the Judge had intervened in response to at least one objectionable question. The decisive question was whether the conduct impaired the ability to advance or answer the case; on the evidence, it had not.

3. Nevertheless, the Tribunal gave guidance that aggressive questioning, confrontation, and comments presented as questions are outside legitimate advocacy. Judicial intervention is appropriate where such conduct occurs. Improper advocacy which is left unchecked may render a hearing unfair.

4. Remaking the decision, the Tribunal accepted the unchallenged medical evidence. The appellant’s wife was heavily and increasingly dependent upon him and her health was deteriorating. The statutory public-interest considerations under Part 5A of the Nationality, Immigration and Asylum Act 2002 were largely favourable to him. The likely short and successful settlement-application process if he returned to South Africa engaged the Chikwamba principle. In the exceptional facts, removal would be disproportionate under Article 8, and the appeal was allowed.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision, and remade it by allowing the appellant’s appeal.

• First-tier Tribunal: Dismissed the appeal in a decision promulgated on 16 February 2015.