Anton Sivapatham v The Secretary of State for the Home Department

An apparent-bias challenge requires the Tribunal to establish the relevant circumstances and then ask whether a fair-minded and informed observer would see a real possibility of bias. The assessment is objective, takes account of the proceedings as a whole, and recognises the appellant’s burden to prove the allegation on the balance of probabilities.

A judge may express a provisional view after preparation, including scepticism about a case. The hearing becomes unfair where the judge indicates a closed mind or a pre-determined outcome. Parties do not require the Tribunal’s permission to give evidence, subject to fair case management and protection against misuse of process. Evidence relevant to Article 8 and children’s interests must not be excluded on a speculative assumption that it cannot assist.

The appellant, a Sri Lankan national, appealed against the First-tier Tribunal’s dismissal of his asylum and Article 8 claims. The refusal of asylum had principally rested on adverse credibility findings concerning his account of past persecution and continuing risk arising from an alleged family connection with the LTTE.

On appeal, the principal issue was whether the conduct of the First-tier Tribunal hearing gave rise to apparent bias and procedural unfairness. The appellant and his former advocate gave evidence that the judge had treated the case as a non-starter before hearing evidence. The First-tier Tribunal judge responded that he had merely identified matters requiring attention. A further issue arose from the judge’s refusal to receive evidence from the appellant’s two children concerning Article 8.

1. The appeal was allowed. The First-tier Tribunal decision was set aside and the appeal was remitted for a fresh hearing before a different judge.

2. The applicable apparent-bias inquiry was whether the fair-minded and informed observer, having considered all relevant circumstances, would conclude that there was a real possibility of bias. The reviewing tribunal had first to establish the factual matrix, bearing in mind the absence of a transcript and the appellant’s burden of proof on the balance of probabilities. The assessment required the proceedings to be considered as a whole: Porter v Magill [2001] UKHL 67; Re Medicaments [2001] 1 WLR 700; Alubankudi (appearance of bias) [2015] UKUT 542 (IAC).

3. A judge may form and disclose tentative views after studying the papers. Robust questioning or scepticism is permissible if the judge remains open to persuasion. It is not permissible to express factual conclusions prematurely or to convey an unwillingness to be persuaded whatever evidence is given: AM (Fair Hearing) Sudan [2015] UKUT 656 (IAC); Arab Monetary Fund v Hashim [1993] 6 Admin LR 348; Singh v SSHD [2016] EWCA Civ 492.

4. On the evidence, the judge’s failure to answer material allegations that he had proposed to decide the appeal without hearing evidence, coupled with the advocate’s need to invoke the right to be heard, established a real possibility of bias. The hearing was therefore unfair.

5. The separate refusal to hear evidence from the appellant’s children was also unlawful and unfair. They were parties to the appeal and their evidence could have informed the assessment under Article 8 of the Human Rights Convention and section 55 of the Borders, Citizenship and Immigration Act 2009. An appellant does not need permission to give evidence. Case management may regulate the presentation of evidence and prevent misuse of process, but it cannot exclude relevant evidence on a pre-emptive assumption that it cannot assist.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the First-tier Tribunal decision for apparent bias and procedural unfairness, and remitted the case for a fresh hearing before a different judge.
• First-tier Tribunal: Dismissed the family’s asylum and Article 8 appeals. No citation for that decision is stated in the judgment.