Case No : C5 / 2011 / 0918 
Neutral Citation Number: [2011] EWCA Civ 1425
IN THE COURT OF APPEAL  (  CIVIL DIVISION  )
ON APPEAL FROM UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
[Appeal No: AA/08297/2010]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date : Wednesday 9th November 2011

Before:

PRESIDENT OF THE FAMILY DIVISION
(SIR NICHOLAS WALL)
LORD JUSTICE RIMER
and
LORD JUSTICE JACKSON
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Between:

	CD (DRC )	
Appellant	
	- and -		
	
Secretary of State 
for the Home Department 	

Respondent	

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( DAR Transcript of 
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Ms Sarah Daley (instructed by Sriharans  ) appeared on behalf of the Appellant.

Mr Colin Thomann  (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
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Judgment

Lord Justice Jackson:

1.	This judgment is in four parts, namely;

Part 1, Introduction

Part 2, The Facts

Part 3, The Appeal to the Court of Appeal

Part 4, Decision.

Part 1. Introduction

2.	This is an appeal against a decision of the Upper Tribunal on the ground that the tribunal Judge wrongly failed to recuse himself.

3.	The proceedings under consideration took place in the Immigration and Asylum chamber of the Upper Tribunal and concerned a claim for asylum.

4.	CD is the appellant before this court, but he has at various stages of the story been both appellant and respondent.  I shall refer to him as "CD".  The Secretary of State is respondent before this court, but she has at various stages of the litigation been both appellant and respondent. I shall refer to her as "the Secretary of State".  I shall refer to the Democratic Republic of Congo as “DRC.”  One opposition movement in the DRC is called Mouvement Uni pour la Republique.  I shall refer to this as “MUR”.  There is an organisation which operates outside the DRC called Alliance De La Patriot de la Refoundation Du Congo.  I shall refer to this organisation as “APARECO”.  APARECO is said to have links with MUR.  I shall refer to the Tribunals, Courts and Enforcement Act 2007 as "the 2007 Act".  

5.	Section 11 of the 2007 Act provides, subject to certain exclusions, that there is a right of appeal to the Upper Tribunal on any point of law arising from a decision made by the First-Tier Tribunal.  

6.	The consequences of a successful appeal to the Upper Tribunal are set out in section 12 of the 2007 Act as follows: 
“(1)Subsection (2) applies if the Upper Tribunal, in deciding an appeal under section 11, finds that the making of the decision concerned involved the making of an error on a point of law.
(2)The Upper Tribunal—
(a)may (but need not) set aside the decision of the First-tier Tribunal, and
(b)if it does, must either—
(i)remit the case to the First-tier Tribunal with directions for its reconsideration, or
(ii)re-make the decision.
...
(4)In acting under subsection (2)(b)(ii), the Upper Tribunal—
(a)may make any decision which the First-tier Tribunal could make if the First-tier Tribunal were re-making the decision, and
(b)may make such findings of fact as it considers appropriate.”

7.	After these introductory remarks I must now turn to the facts.

Part 2.	The Facts.

8.	CD is a citizen of the DRC born in June 1982.  He is now aged 29.  He arrived in the UK on 15 August 2009 and made a claim for asylum. The basis of CD's claim was that whilst in the DRC he had been an active member of the MUR.  He had encountered problems from 10 May 2009 onwards.  He had been arrested at an event in Kinshasa.  He had been detained in Demiap prison for some time.  He had been treated harshly.  Eventually he contrived to escape and through a rather complicated story which I will not narrate had made his way to England.  

9.	The Secretary of State did not believe the story told by CD and rejected his claim for asylum.  CD appealed to the Immigration and Appeal Tribunal against that refusal.  The appeal was heard by Immigration Judge Thornton at Bradford on 1 December 2009.  Immigration Judge Thornton dismissed CD's appeal.  In doing so Immigration Judge Thornton expressed disbelief of CD's evidence.  He regarded the entire story told by CD to be a complete fabrication. He went on to give reasons for taking such an unfavourable view of CD's evidence.

10.	Undaunted, CD in due course made a fresh claim for asylum.  The fresh claim for asylum was based upon the proposition that CD had engaged in activities with APARECO in this country which would have come to the notice of the DRC government and these more recent activities put CD at risk of persecution for a Convention reason in the event of return to the DRC. The Secretary of State accepted that this was a fresh claim since it was based on more recent events than the original claim.  However, the Secretary of State rejected that fresh claim.  CD appealed to the First-Tier Tribunal.  That appeal came on for hearing before Immigration Judge Cruthers on 26 July 2010.  CD gave evidence about his political activities in this country.  Supporting evidence was given by Mr Ngongo, who was said to be the President of the West Yorkshire branch of APARECO.  

11.	The essence of CD's case was that he had been active in MUR before leaving DRC.  Since arriving in the UK he had been actively involved with APARECO.  CD said that he had taken part in meetings, marches and demonstrations.  He produced photographs in support of this assertion.  CD also said that he was first secretary of the West Yorkshire branch of APARECO. 

12.	Immigration Judge Cruthers was not impressed by CD or by Mr Ngongo as witnesses.  He found them both to be evasive.  He found much of their evidence to be contradictory and inconsistent. Although the Immigration Judge rejected much of CD's evidence, he did accept that CD was first secretary of the West Yorkshire branch of APARECO and that he had taken part in demonstrations against the DRC government.  The Immigration Judge held that CD had undertaken these "anti-regime" activities in bad faith.  CD's motive for taking part was simply to bolster his claim for asylum.  The Immigration Judge went on to hold that CD's claim to asylum was "just established".  The reason for this conclusion was that CD by his activities in this country had successfully generated a real risk of persecution upon return to the DRC.  

13.	The Secretary of State was aggrieved by the decision of the First-Tier Tribunal.  She therefore appealed with permission to the Upper Tribunal.  On 30 November 2010 there was an initial hearing in the Upper Tribunal before Immigration Judge Alis, sitting as a deputy judge of the Upper Tribunal.  The purpose of this initial hearing was to determine whether the First-Tier Tribunal had made an error of law such that its decision should be set aside.  

14.	As is normal practice, that initial hearing in the Upper Tribunal proceeded on the basis of the documents without any oral evidence.  Having considered the submissions of both parties, the deputy judge promulgated his determination on 3 December 2010. He held that the Immigration Judge had made a material error of law.  He adjourned the hearing before the Upper Tribunal for the decision to be remade.  The  deputy judge set out his conclusions in paragraphs 27, 28, 38 and 39 of his determination as follows :

“27. It therefore appears that the Immigration Judge found that he was First Secretary and Mr Ngongo was President of his branch based on a document produced by either the Respondent or Mr Ngongo and their oral evidence albeit the Judge appeared to reject their accounts of what was said to have happened in the DRC.
28. Having regard to those factors and the Judge’s assessment on credibility I am not satisfied the Respondent did hold the position claimed but whilst I accept the Appellant’s submission on this point I do not agree it shows a material error when I consider whether the Respondent would be at risk because I do not see how this information would necessarily have come to the attention of the ‘DRC spies’. 
...
38. Having considered all of the above factors I have concluded that although the Immigration Judge carefully considered all of the factors there was a material error because:
a. The Immigration Judge (like his predecessor) found the Respondent lacked credibility;
b. He rejected evidence from both the Respondent and his witness about activities of APARECO in the DRC;
c. There was no independent evidence (as pointed out by him) that APARECO were viewed as a problem in the DRC; 
d. There were photographs of the Respondent at demonstrations but there was no evidence that he was anything more of a ‘hanger-on’ apart from oral evidence from the Respondent and his witness who had both previously been disbelieved; 
e. The Judge concluded that the Respondent had joined APARECO (UK) to bolster an asylum claim.

39.  His behaviour and the consequences for him had to be assessed in the light of the decisions of YB, BK and SS and in light of the above matters I did not find it reasonably likely that his actions would be brought to the attention of the authorities and for these reasons I find that there was a material error.”

15.	On 3 December 2010 the deputy judge issued directions for the resumed hearing.  Those directions provided for the matter to be listed for a two hour hearing at Manchester.  The directions required that any documents to be lodged as additional evidence should be served in due time.  The directions specified that the findings contained in paragraphs 49 to 67 of Immigration Judge Cruthers’ decision should be preserved.  It was implicit in these directions and it was understood by both parties that oral evidence was to be given at the resumed hearing.  

16.	The second stage hearing in the Upper Tribunal took place on 3 February 2011 before Immigration Judge Alis sitting as a deputy judge of the Upper Tribunal.  Counsel for CD applied to the Deputy Judge to recuse himself because he had already expressed firm views on the issues which were now for decision.  The Deputy Judge refused to do so.  The reasons which he gave, as recorded in counsel's note, were as follows: 

"The deputy immigration judge did not recuse himself because he did not consider himself in difficulty. The deputy judge's position was that there was a difference between making findings at the error of law stage and the full hearing stage and that he was there to hear the evidence about sur place activities. He said that he had not preserved his own findings from the error of law hearing so he would not recuse himself."

17.	CD and Mr Naongo gave oral evidence along the same lines as the evidence which they had previously given before the First-Tier Tribunal.  The advocates for both parties made their submissions.  

18.	On 11 February 2011 the deputy judge promulgated his decision. He held that, while CD may have attended demonstrations, that activity had not brought him to the attention of the DRC government.  He held that the DRC government was not concerned about APARECO members.  The deputy judge therefore concluded that CD would not face increased risk upon return to the DRC as a result of his activities in the UK.  He therefore dismissed CD's claims for asylum and humanitarian protection and upheld the contentions of the Secretary of State. 

19.	CD is aggrieved by the decision of the Upper Tribunal.  Accordingly he has appealed to the Court of Appeal. 

Part 3.  The Appeal to the Court of Appeal 

20.	By an appellant's notice dated 5 April 2011 CD appealed to the Court of Appeal essentially on the ground that the deputy judge erred in failing to recuse himself at the hearing on 3 February 2011.  

21.	In view of the terms in which the deputy judge expressed himself in his initial decision, it was clear that this appeal raised a serious issue which merited argument.  Accordingly on 3 June 2011, upon considering the papers, I granted permission to appeal.  The appeal has come on for hearing today with Ms Sarah Daley for CD and Mr Colin Thomann for the Secretary of State, who have both presented their cases with skill and conciseness. I express my gratitude to both counsel.  

22.	Ms Daley submits that a fair minded and informed observer who was present during the Upper Tribunal proceedings would conclude that there was a real possibility of bias.  She points out that CD had been the successful party at first instance.  Furthermore, CD was disadvantaged because no interpreter was present at the first stage hearing in the Upper Tribunal. She submits that the language used by the deputy judge in paragraphs 28 and 39 of his initial decision indicated that he had made up his mind about the very questions which fell for decision at the second stage hearing.  

23.	Ms Daley points out that the evidence which CD gave at the second stage hearing was the same as the evidence which she gave before Immigration Judge Cruthers. The deputy judge ought to have recused himself on 3 February 2011 because he had already expressed firm views about the effect of that evidence.  Ms Daley draws attention to paragraph 25 in the Court of Appeal's decision in Locabail (UK) Limited v Bayfield Properties Limited [2000] QB 451.  Lord Bingham CJ, giving the judgment of the court, said that on an application for recusal, if there was real ground for doubt, such doubt should be resolved in favour of recusal. Ms Daley submits that in this case there was such doubt.

24.	Mr Thomann for the Secretary of State accepts that the deputy judge used inappropriate language in paragraphs 28 and 39 of his initial decision. He submits, however, that when read in context those two paragraphs do not mean that the deputy judge had reached a final decision on the issues for resolution at stage 2.  Mr Thomann points out that the findings in those two paragraphs were not amongst the "preserved findings". He also points out that the deputy judge's decision to hold a further hearing and his direction for oral evidence at that hearing could only mean that the deputy judge had not yet made up his mind.  Mr Thomann accepts that if the oral evidence adduced by CD at the second stage hearing was the same as that adduced before Immigration Judge Cruthers, then the deputy judge was likely to reach conclusions about that evidence similar to his conclusions in the initial decision.  That, however, says Mr Thomann, does not mean that there was any bias or apparent bias.

25.	After that brief summary of the rival arguments I must now analyse the issues and reach a decision.

Part 4.  Decision

26.	I have read out in Part 1 of this judgment the relevant provisions of the 2007 Act governing appeals to the Upper Tribunal.  The practice directions applicable to the Immigration and Asylum Chamber of the Upper Tribunal provide further guidance on how the Upper Tribunal should deal with appeals.  Part 3 of those practice directions provides that if the Upper Tribunal sets aside a decision for error of law it may either remake the decision on the basis of the documents or it may direct that oral evidence be given for the purpose of remaking the decision.

27.	In this case the deputy judge of the Upper Tribunal directed that there be a further hearing at which oral evidence would be given.  The issue for decision at that further hearing would be whether CD's activities in the United Kingdom gave rise to an increased risk of persecution upon return to the DRC.  This then is the context in which paragraphs 28 and 39 of the Deputy Judge's initial decision must be read.  In my view the language which the Deputy Judge used in those two paragraphs was inappropriate.  All that he needed to say and all that he should have said was this. There was a material error of law in that Immigration Judge Cruthers had made certain findings of fact which were not open to him on the evidence recorded in Immigration Judge Cruthers’ decision.  

28.	Although the language used was inappropriate when the relevant paragraphs are read in context, I do not think they mean that the Deputy Judge had reached a final decision on those issues. The true position was as the Deputy Judge stated when refusing the recusal application.  The Deputy Judge was ruling that there had been an  error of law by the First-Tier Tribunal.  Certain findings of fact made by the First-Tier Tribunal could not stand.  The Deputy Judge would make his own  decision on those matters after hearing further evidence.

29.	There has been some debate between counsel today as to whether the complaint in this case should be characterised as predetermination or apparent bias.  Ms Daley prefers to put her case on the basis of apparent bias and I shall approach it on that basis. In Porter v McGill [2001] UKHL 67, [2002] 2 AC 357 the House of Lords had to determine whether the decision of an auditor proceeding under the Local Government Finance Act 1982 was vitiated because of apparent bias.  The House of Lords held that it was not. Lord Bingham delivered the leading speech, with which the other members of the judicial committee agreed.  At paragraph 102 Lord Bingham said that the test was whether all the circumstances of the case would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased.  

30.	Let me now apply that test to the present case, as both counsel have invited this court to do.  The fair-minded and informed observer may well be alarmed by the language used in paragraphs 28 and 39 of the deputy judge's initial decision. On the other hand when those paragraphs are read in their proper context (as summarised above) I think that the alarm of any fair minded and informed observer would be assuaged.  Those paragraphs simply cannot mean that the Deputy Judge has made up his mind about the very questions which he has decided should be the subject of a further hearing with oral evidence.

31.	Accordingly I reach the conclusion that this is not a case of apparent bias.  The Deputy Judge was not obliged to recuse himself as proposed by CD's counsel.  This is not a case of real doubt which would fall within paragraph 25 of the Court of Appeal's decision in Locabail.  

32.	I accept Ms Daley's observation that no interpreter was present at the first stage hearing.  This fact, however, does not carry CD's case any further.  CD was represented by Ms Daley at the first stage hearing. That hearing consisted solely of legal argument concerning Immigration Judge Cruthers' decision. I have no doubt that CD was well represented at that hearing.  The absence of an interpreter on 30 November 2010 does not affect the recusal issue which arose two months later.

33.	It not uncommonly happens that a judge has to decide a case upon which he has expressed views at an earlier stage.  There is no impropriety in this unless there is a reasonable apprehension that he will approach the case with a closed mind.  Such an apprehension will only arise where it appears that he has prejudged the issue and it is reasonably feared that he cannot or will not revisit the issue with an open mind.  See Sengupta v Holmes [2002] EWCA Civ 1104 at paragraphs 30 and 31 per Laws LJ.  

34.	In the present case, for the reasons mentioned earlier, I am satisfied that the deputy judge did revisit the relevant issues with an open mind at the hearing on 3 February 2011.

35.	Let me now draw the threads together.  This is not a case in which there was bias, apparent bias or predetermination of the issues by Deputy Judge Alis.  He expressed himself inappropriately in two paragraphs of his initial decision.  However, the Deputy Judge corrected the misapprehension which he had created by his ruling on 3 February 2011 and indeed by the directions which he had given earlier.  The Deputy Judge was right not to recuse himself on that occasion.  I would dismiss this appeal

Lord Justice Rimer : 
36.	I agree.  I too would dismiss this appeal

Sir Nicholas Wall: 
37.	I also agree and cannot usefully add anything.  The appeal will be dismissed. 

Order: Appeal dismissed