Tareque Hossain v The Secretary of State for the Home Department

A judge’s intervention in oral evidence does not automatically make a hearing unfair. The question is an objective, fact- and context-specific one: whether the interventions, assessed both quantitatively and qualitatively, impaired the judge’s ability to evaluate the evidence or otherwise made the hearing unfair. Judges may ask questions after examination and cross-examination about matters that trouble them, including issues not raised by counsel, provided they do not adopt a party’s case, act hostilely or take over the proceedings. They should allow further questions where appropriate. Counsel’s failure to object may be relevant, but cannot cure unfairness. On the facts, the questioning remained within the evidential issues and the appeal was dismissed.

The appellant challenged the refusal of his application for leave to remain based on private and family life. The critical issue before the First-tier Tribunal was whether he had used a fraudulently obtained English-language test certificate. The First-tier Tribunal dismissed the appeal after questioning the appellant and his witnesses following counsel’s examination and cross-examination.

Upper Tribunal Judge Gleeson dismissed the appeal, finding that the hearing had been fair. The appellant appealed to the Court of Appeal, arguing that the First-tier Tribunal judge had descended into the arena and that the Upper Tribunal had wrongly relied on the absence of an objection by his former counsel. The central issue was whether the judge’s conduct made the hearing unfair.

The appeal was dismissed. Lord Justice Moylan gave the judgment, with which Lady Justice Asplin and Lady Justice Elisabeth Laing agreed.

1. Applicable standard. The question whether judicial intervention made a hearing unfair is an objective assessment, determined by the context and facts of the case. The court must consider the hearing as a whole and assess both the quantity and the quality of the interventions. Excessive intervention, or the risk that a judge has descended into the arena, does not by itself establish unfairness. The ultimate question is whether the conduct impaired the judge’s ability to evaluate the evidence or prevented a party from properly presenting its case. The approach in Jones v National Coal Board [1957] 2 QB 55, Southwark LBC v Kofi-Adu [2006] HLR 33 599, Serafin v Malkiewicz [2020] 1 WLR 2455 and Keane v Sargen [2023] EWCA Civ 141 was applied.
2. Permissible questioning. A judge may ask questions about matters that trouble the judge and may affect the decision, even where counsel has not raised them. The judge must nevertheless remain neutral, avoid developing a different case or pursuing an own theory, and avoid hostile, leading or disproportionate questioning. The phrase that a judge’s role is merely supervisory during evidence cannot be applied literally. Where questions are asked after counsel’s examination, the parties should have an opportunity to ask further questions. The guidance in JK (Conduct of Hearings) Côte d’Ivoire [2004] UKIAT 00061 and related authorities was accepted.
3. Application. The First-tier Tribunal judge asked a significant number of questions and was sometimes persistent, but the questions were asked after counsel’s examination, were not hostile, concerned matters already within the evidence and were directed to the central issue. The judge neither took over the case nor acted as a second advocate for the Secretary of State. The judge was entitled to take the answers into account when evaluating the evidence. The hearing was fair.
4. Counsel’s failure to object. It was unnecessary to decide the second ground. However, counsel generally has a duty to raise concerns about the fairness of a hearing during the hearing. The absence of an objection may be a material factor, although it cannot make an unfair hearing fair.

• Court of Appeal (Civil Division). On 5 June 2024, the appeal was dismissed. The court upheld the Upper Tribunal’s conclusion that the First-tier Tribunal hearing had been fair.
• Upper Tribunal (Immigration and Asylum Chamber). Upper Tribunal Judge Gleeson dismissed the appellant’s appeal from the First-tier Tribunal decision in case UI-2022-000769.
• First-tier Tribunal (Immigration and Asylum Chamber). Judge Beg dismissed the appellant’s appeal against the Secretary of State’s refusal of leave to remain.