Ilirjan Hima v The Secretary of State for the Home Department

A tribunal judge must conduct an immigration appeal with the same fairness required of any judicial hearing. The fact-sensitive and cumulative assessment of fairness does not mean that every procedural error invalidates a decision. It does mean that substantial unfairness, including impermissible judicial cross-examination, reliance on an unheralded adverse issue, and unjustified hostile treatment of an advocate, may make the outcome unsafe.

The tribunal remains entitled to investigate issues beyond an appellant's preferred forensic strategy and may ask necessary questions. It must not enter the arena, compromise even-handedness, or deny a party a fair opportunity to meet a material case.

An Albanian national applied for an EEA residence card after marrying an EEA national. The Secretary of State refused the application, alleging that the marriage was one of convenience. The First-tier Tribunal dismissed his appeal.

The Upper Tribunal dismissed a further appeal. It identified legitimate complaints about aspects of the First-tier Tribunal hearing, but held that the hearing was fair overall and that the decision should stand. The appellant appealed to the Court of Appeal. The central issue was whether the Upper Tribunal had erred in treating the procedural unfairness at the First-tier Tribunal hearing as insufficient to require the decision to be set aside.

1. Appeal allowed. The First-tier Tribunal hearing was affected by substantial procedural unfairness. The decisions of the First-tier Tribunal and Upper Tribunal were set aside, and the appeal was remitted to the First-tier Tribunal for rehearing before a different judge.
2. The Secretary of State bore the legal burden of proving, on the balance of probabilities, that the marriage was one of convenience: Agho v SSHD [2015] EWCA Civ 1198; Sadovska v SSHD [2017] UKSC 54. The First-tier Tribunal process was adversarial. It was not permissible to treat the appellant as carrying the ultimate burden of proving that the marriage was genuine.
3. The Court distinguished apparent bias from objective unfairness. There was no factual basis for a conclusion that the judge was prejudiced for reasons extraneous to the merits. The decisive question was instead whether the conduct of the hearing was objectively unfair. That assessment is cumulative and context-specific. An isolated unfair act may not affect the outcome, but the unfairness here was substantial.
4. The judge's extensive questioning was not clarification. It amounted to cross-examination on matters not raised by the Secretary of State, including the appellant's former marriage and the absence of supporting witnesses. In a short hearing in which the appellant was the only live witness, this was an impermissible descent into the arena. The judge also reached an adverse conclusion that the previous marriage was a sham without putting that proposition to the appellant or his representative. Fairness required warning because the issue had not been raised and contradicted an earlier First-tier Tribunal finding.
5. The judge further treated the appellant's representative unfairly, including by unfounded and inappropriately expressed criticism concerning disclosure and submissions. Although it was permissible to consider the whole of the interview material held by the appellant, the combined effect of the other defects meant that the result could not stand.

• Court of Appeal (Civil Division): Allowed the appeal, set aside the decisions below, and remitted the matter to the First-tier Tribunal for rehearing by a different judge: [2024] EWCA Civ 680.
• Upper Tribunal (Immigration and Asylum Chamber): On 27 January 2022, dismissed the appellant's appeal from the First-tier Tribunal, notwithstanding identified shortcomings in the hearing.
• First-tier Tribunal: On 8 March 2021, dismissed the appeal against the refusal of the residence-card application.