Thajudheen Elayi v The Secretary of State for the Home Department

A tribunal hearing must be conducted so that its fairness, impartiality and detached objectivity are manifestly apparent to the parties and to a hypothetical observer. A private, undisclosed pre-hearing discussion between the judge and one party’s representative about the case can breach that requirement.

Once a hearing is found unfair, the resulting error of law is ordinarily material. Further, a refusal under Immigration Rules Rule S-LTR.2.2 requires recognition of any discretion conferred by the Rule; a decision-maker must not treat refusal as automatic. An unreasoned assertion about the availability of ETS material cannot sustain findings based on generic TOEIC evidence.

The Secretary of State refused the appellant’s human-rights application for leave to remain. The refusal relied on alleged deception in TOEIC English-language certificates used in an earlier Tier 4 student application, under Appendix FM of the Immigration Rules.

The appellant challenged the First-tier Tribunal’s determination. He relied, first, on the first-instance judge’s private pre-hearing conversation with his representative, held without the respondent’s representative and without disclosure of its substance. He also challenged the treatment of the discretionary refusal provision and the assessment of ETS generic evidence.

The central issues were whether the hearing had been fair and whether the First-tier Tribunal had made material errors of law in upholding the refusal.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside and the appeal was remitted for a fresh hearing before a differently constituted First-tier Tribunal.

2. The judge’s private, pre-hearing discussion with the appellant’s representative was fundamentally irregular. It occurred without the other party’s representative, was partly out of the appellant’s sight and hearing, concerned the case, and was not disclosed to him. Applying Alubankudi [2015] UKUT 542 (IAC), the Tribunal held that the appearance of fairness had plainly been breached. A hypothetical observer would be gravely disturbed by the events, and the essential features of an orderly and impartial process were absent.

3. That unfairness was a material error of law. Following MM v SSHD [2014] UKUT 105 (IAC), once a hearing is found unfair, its error is automatically material except in a context of the greatest rarity. There was no scope to treat the defect as immaterial.

4. The First-tier Tribunal made a further error by failing to identify that the Secretary of State had treated refusal under Rule S-LTR.2.2 as obligatory. A finding that an earlier application lacked candour and honesty did not inexorably require refusal. The decision-maker had a discretion, and the failure to recognise it was material. The Tribunal did not need to decide the separate argument concerning the meaning of “the applicant” and “the application”.

5. The First-tier Tribunal also erred in accepting, without adequate reasons, that the Home Office had access to all relevant ETS data and enquiries. That assertion was unsustainable in light of the examination of generic evidence in SM and Qadir [2016] UKUT 229 (IAC) at [63]. The later date of that authority did not prevent it demonstrating the legal error.

6. For the second and third errors, materiality depended on whether avoiding the error could have led to a different result. The Upper Tribunal lacked confidence that the original outcome would have remained unchanged. Remittal was appropriate because the appellant had been denied a fair hearing.

• 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: Made the determination challenged for error of law; that determination was set aside.

• Secretary of State: On 26 January 2015, refused the appellant’s application for leave to remain under Article 8 and Appendix FM of the Immigration Rules.