All’s Still Fair In Immigration Hearings

One of the most important principles of English justice is that everyone, no matter how rich, how poor, irrespective of religion, race or creed, is entitled to a fair hearing in a court of law.

It has long been recognised as essential for the rule of law that people believe they will be fairly heard and judged in court. This principle was first documented in the Magna Carta which, in 1215, set out in the name of the king that, ‘to no one will we sell, to no one will we refuse or delay, right or justice’.

The right is now enshrined in Article 6 of the European Convention on Human Rights (ECHR) which provides that:

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:

a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

b) to have adequate time and the facilities for the preparation of his defence;

c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

How the Principles of Article 6 of the ECHR Applies in UK immigration law

Many judgments of the European Court of Human Rights have added meat to the skeleton of the principles of Article 6. For example:

• In the case of Bellet v France, the Court held that access to a court must be “practical and effective” and individuals must “have a clear, practical opportunity to challenge an act that is an interference with his rights”.
• Dombo Beheer B.V. v. the Netherlands – the Court stated that that the national authorities must ensure in each individual case that the requirements of a “fair hearing” within the meaning of the Convention are met.
• In Agrokompleks v. Ukraine, the ECHR stressed that the scope of the State’s obligation to ensure a trial by an “independent and impartial tribunal” under Article 6 (1) of the Convention is not limited to the Judiciary. It also implies obligations on the Executive, the Legislature and any other State authority, regardless of its level, to respect and abide by the judgments and decisions of the courts, even when they do not agree with them.

Recent Immigration Appeals Illustrating the UK courts’ Commitment to the Principles of Article 6

Three recent appeal judgments delivered by the Upper Tribunal (Immigration and Asylum) Chamber (UT) have illustrated the Tribunal’s commitment to the right to a fair trial for migrants in the UK.

AM (fair hearing) Sudan [2015] UKUT 656 (IAC)

In this case, the Respondent was a 26-year-old Sudanese national. The Secretary of State refused the Respondent's application for Asylum. The Respondent's ensuing appeal to the First-tier Tribunal (the " FtT") succeeded. The appeal was allowed on both Asylum and Article 3 ECHR grounds.

Article 3 of the ECHR provides that:

‘No one shall be subjected to torture or to inhumane or degrading treatment or punishment’.

The Home Office appealed the FtT ruling on the grounds that the presiding Judge had looked up the footnotes in a ‘reasons for refusal’ letter and this had led to him allegedly pre-judging the appeal.

This argument was swiftly rejected. The UT did comment that it was not for the Judge to perform individual research on cases brought before them, but to make a decision on the material provided by Counsel. However, judges are entitled to form provisional views in advance of a hearing provided that an open mind is conscientiously maintained. Footnotes to the decisions made by the Secretary of State are a perfectly acceptable source to be accessed by the Tribunal, as they form an integral part of the Home Office’s decision. To achieve a fair trial, the Tribunal may sometimes be required to examine more deeply an issue which has not been fully explored by the parties to the case.

AM (fair hearing [2015] UKUT 655 (IAC)

In this case, which involved a 71year old South African women who was unwell, the UT stated that the Tribunal should intervene if “aggressive questioning of, or confrontation with, a party or witness” occurs to ensure a fair hearing.

“Improper conduct on the part of an advocate, unchecked and unrestrained by judicial authority and hearing management, can potentially render a hearing unfair”.

Alubankudi (Appearance of bias) [2015] UKUT 542 (IAC)

The Judge in the FtT commented that, “there is a great deal of authority to the effect that the United Kingdom is not a retirement home for the rest of the world”, whilst presiding over a case involving a 70 year Nigerian. Although the comments were not found to be sufficient to indicate bias by the Judge, but was described as “unfortunate”.

In a further comment, the UT stated:

“The interface between the judiciary and society is of greater importance nowadays than it has ever been. Judges must have their antennae tuned to the immediate and wider audiences, alert to the sensitivities and perceptions of others, particularly in a multi-cultural society. Statements such as that made by the FtT Judge in this case that “the United Kingdom is not a retirement home for the rest of the world” had the potential to cause offence and should be avoided.”

In Summary

Although many decisions made by the UK Government could be interpreted as trying to make life as difficult as possible for certain migrants trying to enter the UK, it should be a comfort to know that the independence of the Judiciary is still alive and well, and the UK courts and tribunals continue to ensure that everyone one who enters the UK has the right to a fair trial.

If you believe that your rights under Article 6 of the ECHR have been breached and wish to appeal your Immigration decision, please call our London office on 0207 936 9960 to talk to one of our Immigration solicitors. OTS Solicitors has a strong reputation for being one of the best Immigration law firms in London and has years of experience managing both Immigration appeals and judicial review cases. We look forward to hearing more about how we can assist you with your Immigration concerns.