Secretary of State for the Home Department v MS

Judicial control of a hearing must be exercised fairly and constructively. Interventions may focus proceedings, but overbearing or intimidatory conduct can create apparent bias and procedural unfairness. Excessive interruption that prevents effective cross-examination may itself amount to a material error of law, particularly where the resulting untested evidence is relied upon. A representative’s personal safety concerns must be investigated promptly, sensitively and in sufficient detail before deciding whether the hearing can continue. A formal complaint about the judge is a separate process and must not be used to determine whether the decision contains an error of law.

The Secretary of State appealed against a First-tier Tribunal decision allowing the respondent’s protection appeal. The appeal had been heard over two days, but cross-examination remained incomplete when the Presenting Officer withdrew after raising concerns about contact with her on social media and her personal safety. The grounds alleged apparent bias, procedural unfairness, excessive judicial intervention and failure to adjourn. A copy of a formal complaint against the First-tier Tribunal judge had also been included with the grounds. The Upper Tribunal considered the hearing recordings and the central questions were whether the hearing had been unfair and whether the appeal should be remitted or retained for remaking.

1. Disposition. The First-tier Tribunal decision was unsafe and was set aside in its entirety for material errors of law. The appeal was remitted to the First-tier Tribunal for a de novo determination.
2. A judge must retain control of proceedings so that they remain focused and efficient, but must also listen, guide participants and enable the parties to present their cases fairly. The conduct of the First-tier Tribunal judge, viewed through the perspective of a fair-minded and informed observer applying Porter v Magill [2001] UKHL 67, indicated apparent bias. The judge appeared to have formed a concluded view before hearing all the evidence and intervened in a manner resembling advocacy for the respondent.
3. The excessive interruptions and criticism of the Presenting Officer prevented her from properly testing the evidence. Applying the principles discussed in Jones v National Coal Board [1957] 2 QB 55, this was itself a material error. The error was compounded because the First-tier Tribunal relied on the defective cross-examination. As explained by Serafin v Malkiewicz [2020] UKSC 33 at [49], sound reasoning in the decision cannot cure an unfair hearing.
4. When the Presenting Officer raised concerns about contact with her on social media and possible stalking, the judge dismissed the concerns without adequately investigating how the contact occurred or its potential effect on the integrity of the hearing. The failure to explore the safety concerns promptly, sensitively and in sufficient detail was procedurally unfair and materially affected the outcome.
5. The formal complaint against the judge was irrelevant to the error-of-law appeal. The complaint process and appeal process should remain separate, and neither the existence nor content of the complaint was considered.
6. Having regard to AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), remittal was appropriate because the Secretary of State had been deprived of a fair hearing and the opportunity to present her case, making a fresh two-tier determination necessary.

• First-tier Tribunal: The respondent’s protection appeal was allowed in a decision signed on 11 December 2021 and promulgated on 18 May 2022.
• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was allowed. The First-tier Tribunal decision was set aside for error of law and the appeal was remitted to the First-tier Tribunal for redetermination de novo.