Are You Not Entertained?

The recent Court of Appeal decision in Ilirjan Hima v The Secretary of State for the Home Department [2024] EWCA Civ 680 serves as a reminder to Judges that their role is not to “[descend] into the arena” (William David LJ at [11], Underhill LJ at [59]) and not to cross-examine witnesses, or make findings on points not raised by the parties.

The case concerned the appellant’s application for a residence card, which was refused by the respondent, whereupon the appellant appealed to the First Tier Tribunal (“FTT”). FTT Judge Mills was the Judge at the appeal hearing.

During the hearing, the appellant gave evidence-in-chief and was cross-examined. After his legal representative confirmed there was no re-examination, the Judge asked some twenty-five questions. These included asking whether the reason the appellant had not gone to live with his first wife when he came to the UK in 2017 was because they were struggling with their relationship, which was why they were now divorced (a point not previously raised in any of the proceedings). The Judge further asked why the appellant’s brother and stepsons did not appear as witnesses. The Judge overruled an objection from the appellant’s legal representative that he was cross-examining the appellant, characterising his questions as seeking clarification. The Judge’s questions took more time than any other part of the appellant’s evidence.

The appellant appealed to the Upper Tribunal (“UT”) on the basis that the hearing had been conducted unfairly. The UT concluded that the procedure was, as a whole, fair. The appellant appealed to the Court of Appeal.

The Court of Appeal concluded that the hearing in the FTT was unfair for three reasons:

  1. The Judge asked the appellant questions which amounted to cross-examination on points not raised by the respondent;
  2. The Judge based his conclusions in part on a point not raised by the appellant, which was contrary to a finding of the First Tier Tribunal in a previous case; and
  3. The Judge’s criticisms of the appellant’s legal representative were unfounded and expressed in inappropriate language which evidenced some personal animus.

Arguments that the role of a Judge hearing immigration and asylum appeals in the FTT was “quasi-inquisitorial” were rejected, although Underhill LJ stressed that the decision should not discourage FTT Judges from asking their own questions of witnesses to clarify the evidence being presented. While the Judge may have been making an effort to understand the issues as he saw them, he did so by descending into the arena, which resulted in procedural unfairness.

The judgment was set aside and remitted for re-hearing by a different Judge.

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