MK (Burma) v Secretary of State for the Home Department

This is an appeal with leave of Senior Immigration Judge Gleeson from a decision of the Asylum and Immigration Tribunal dated 5 April 2006. That tribunal dismissed the appeal of MK. He applied for permission to appeal, alleging apparent bias; there was no allegation of actual bias. His allegation was based on the number of questions and the nature of the questions asked by the panel, and the Senior Immigration Judge described the grounds as “undoubtedly arguable”. The view has been taken by the Secretary of State that the appeal should not be contested and a form of order was lodged with reasons for remitting the matter back to a differently constituted Asylum and Immigration Tribunal.

An attempt was made to dispose of the matter without a hearing but Laws LJ was understandably of the view that an appeal on the grounds, even of apparent bias rather than actual bias, should not be allowed without the scrutiny of the court. We have all looked at the papers and in particular examined the notes of evidence of the appellant and his partner.

This was a case where in fact the Secretary of State was represented. That representative asked, it seems, some 44 questions; nearly twice that number were asked by members of the panel and the nature of those questions appears to be very much in the nature of cross-examination. The appellant’s partner was also asked questions by the representative; again, the members of the panel asked over twice the number of questions, and again the nature was very much in the nature of cross-examination.

There are with the papers two authorities in the Immigration Appeal Tribunal giving guidance to immigration judges, although those cases were in fact concerned with cases where there was no representative from the Secretary of State. The guidance gave clear warning against immigration judges giving the appearance of taking on the role of prosecutor, whereas of course their role is to be a judge. We can accordingly understand how it has been thought in this case by the Treasury Solicitor that the panel may have given the appearance of being prosecutors and it seems to us that it was absolutely proper for the Secretary of State to have taken the view that remission to a different tribunal should not be contested. Thus by consent we can make the order that the matter will be remitted to a different constitution of the Asylum and Immigration Tribunal. An order should be made in terms that has been agreed between the parties.