A judge accused of cross-examining an appellant during a hearing about a rejected residence card did not act fairly in his conduct and determination of the case, the Court of Appeal has found.
Questioning of Ilirjan Hima by the First Tier Tribunal (FTT) judge David Gareth Mills was described in the ruling as ‘wholly inappropriate’.
Giving the lead judgment, Lord Justice William Davis, sitting with Lord Justice Underhill and Lady Justice King, said: ‘Mr Hussain [for Hima] was right when he described the exercise as cross-examination. The FTT judge’s cross-examination occupied more time than any other part of the appellant’s evidence.’
The judge’s questions ‘could not be described as clarification’ and ‘there was nothing in the matters raised by Ms Mepstead [for the Secretary of State for the Home Department] that required clarification’.
The judgment added: ‘The cross-examination of the appellant was not a minor departure from ideal practice. In the context of this hearing, it demonstrated that the judge had entered the arena to an impermissible extent. When Mr Hussain quite properly drew the judge’s attention to the fact that it was not appropriate for him to cross-examine the appellant, the judge roundly criticised Mr Hussain. He did so in a way which would have led the appellant to conclude that his case was not being given a fair crack of the whip. Unfairness in the treatment of a party’s representative will impact on the fairness of the hearing.
‘In this case Mr Hussain was unfairly criticised on more than one occasion during the relatively short hearing.’
Allowing the appeal, Lord Justice Davis said the hearing was subject to ‘substantial unfairness such that the outcome cannot stand’. The judge was not entitled to ‘unfairly criticise the advocate or to engage in wider procedural unfairness’.
Lord Justice Underhill added: ‘I do not doubt that this experienced judge was making a conscientious effort to get to the bottom of the issues as he saw them, but that involved him in “descending into the arena” in a way which led him into the errors in question.
‘Deciding whether the conduct of a judge has been such as to render a hearing unfair is a highly fact- and context-specific exercise. For that reason, I would not want our decision to be understood as discouraging FTT judges from asking their own questions of witnesses where that is necessary in order to enable them fully to understand the facts and the issues.’
The FTT and Upper Tribunal decisions are to be set aside. The case will be remitted to the FTT to be reheard by a different FTT judge.
