Singh v The Secretary of State for the Home Department

Apparent bias arises where a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. A judge may express preliminary views, scepticism or robustly identify evidential difficulties. Such remarks indicate bias only if they convey a closed mind or an unwillingness to be persuaded by the evidence.

The assessment is objective and considers the proceedings as a whole. The party alleging bias must provide sufficiently particularised evidence. The final determination may assist in assessing the accuracy and context of alleged earlier remarks, although it cannot always remedy an appearance of bias already established.

The appellant sought indefinite leave to remain on the basis of long residence. The First-tier Tribunal dismissed his appeal after rejecting his account of residence and the supporting oral evidence. Counsel subsequently alleged that remarks made by the First-tier Tribunal judge before evidence was heard showed prejudgment or a closed mind.

The Upper Tribunal dismissed the appeal, finding that the hearing had been fair and that prejudgment had not been established. Permission to appeal on the substantive immigration grounds was refused. The sole issue before the Court of Appeal was whether the available evidence established apparent bias and whether the Upper Tribunal had applied the correct legal approach.

1. Appeal dismissed. The objective test was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. The appellant failed to satisfy that test.

2. A judge may identify an apparent weakness in a party’s case, express scepticism or state a preliminary view, including in robust terms. This may help an advocate understand where evidence or submissions should be directed. Such conduct gives rise to apparent bias only where it indicates a concluded view, a closed mind or an unwillingness to be persuaded whatever evidence is given.

3. The alleged remarks had to be assessed in their context and by reference to the proceedings as a whole. Counsel’s statement was made two weeks after the hearing, relied on recollection rather than a contemporaneous note, and did not record the judge’s exact words or the course of any exchange. It was unsupported by further evidence from counsel or any evidence from the appellant.

4. The written determination was relevant to assessing the accuracy and completeness of counsel’s recollection. It showed that the absence of documentation was treated as indicative rather than conclusive. The judge considered the oral evidence, discrepancies between witnesses, the appellant’s limited English and the absence of other supporting witnesses. Although a final judgment cannot invariably retrieve an earlier appearance of bias, the determination in this case supported the conclusion that the judge had not approached the hearing with a closed mind.

5. The Upper Tribunal did not expressly recite the test in Porter v Magill [2001] UKHL 67, but it addressed fairness, apparent fairness and prejudgment in substance. Its conclusion was proper. The Court of Appeal was also able to assess the allegation independently because the appellant’s case depended entirely on counsel’s written statement.

6. By way of non-prescriptive guidance, allegations of bias or misconduct should ordinarily be particularised and supported by evidence before permission to appeal is granted. The Upper Tribunal should normally obtain and disclose the tribunal judge’s written comments, retain those comments for any further appeal, consider obtaining the judge’s hearing note and seek the recollection of the opposing advocate. The parties should consider whether oral evidence is required, and the file should be reviewed for directions before the substantive appeal.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The available evidence did not establish a real possibility of bias, and the Upper Tribunal’s conclusion was upheld.
2. Upper Tribunal (Immigration and Asylum Chamber): The appellant’s appeal was dismissed. The Upper Tribunal found that the First-tier Tribunal hearing had been fair, that prejudgment had not been established and that the determination disclosed no error of law.
3. First-tier Tribunal (Immigration and Asylum Chamber): The appeal against the refusal of indefinite leave to remain was dismissed. The judge rejected the claimed period of residence and found removal proportionate in relation to the appellant’s private life.