QA, R (on the application of) v Secretary of State for Foreign, Commonwealth and Development Affairs

A decision is unlawful where a fair-minded and informed observer would conclude that there was a real possibility of bias or predetermination. The assessment requires intense focus on all relevant circumstances. A decision-maker may ordinarily reconsider an earlier decision, but repeated involvement, misleading or incomplete disclosure, assurances about a new panel, and the decision-maker’s prior firm defence of the challenged decision may together create an appearance of predetermination. If one member of a panel is tainted by apparent bias, the unanimous decision of the panel is vitiated. The court may quash the decision on procedural unfairness without deciding an alternative irrationality ground.

QA challenged the Secretary of State’s fifth refusal to resettle 15 members of his extended family from Afghanistan under the Afghan Relocations and Assistance Policy. Earlier decisions had been challenged, reconsidered and replaced. During the litigation, the identities and prior involvement of panel members were disclosed only belatedly. One panel member, Ms Ferguson, had previously participated in the decision under challenge, had given evidence strongly defending it, and had stated that she would not expect a different outcome on reconsideration.

QA alleged irrationality and procedural unfairness arising from apparent bias and predetermination. The central issue was whether, viewed cumulatively, the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the fifth decision had been predetermined.

1. Apparent bias and predetermination. The applicable test was whether a fair-minded and informed observer, having considered all the facts, would conclude that there was a real possibility of bias or predetermination. The court had to focus intensely on the circumstances. If the test was met, the decision-maker was disqualified and the decision was liable to be quashed.
2. A decision-maker’s prior determination of an issue does not invariably prevent a fresh decision. In ordinary circumstances a decision-maker may reconsider a decision while remaining open to persuasion. The position may differ where the decision-maker has committed themselves to a view, particularly after a detailed assessment of disputed material, or where the circumstances undermine public confidence in the process.
3. The relevant circumstances included secrecy about panel membership, the failure initially to disclose an earlier decision and the incomplete evidence before an earlier panel, representations that reviews would be undertaken by a new panel, the repeated involvement of panel members, and Ms Ferguson’s witness statement. Although her statement expressed an expectation rather than an unshakeable view, it went beyond chronology, strongly defended the earlier decision and assessed the further evidence while wrongly suggesting that she had not participated in the decision.
4. Viewed cumulatively, those matters would lead the fair-minded and informed observer to conclude that there was a possibility that Ms Ferguson had predetermined the outcome. They also demonstrated wider unfairness in the decision-making process.
5. It was immaterial that Ms Ferguson was only one member of the panel or that the decision was unanimous. A panel decision is vitiated where one member is disqualified by apparent bias. The fifth decision was therefore quashed. A sixth decision was necessary.
6. The court did not determine whether the decision was irrational. That issue involved detailed merits-based argument, and deciding it might influence the Secretary of State’s fresh decision. No separate order was made concerning the closed proceedings.

First instance judicial review proceedings. The court granted permission, gave judgment for QA on ground 2, and quashed the fifth decision.