England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)

		Royal Courts of Justice Strand London, WC2A 2LL
		29 April 2015

LORD JUSTICE CHRISTOPHER CLARKE:

1. This is a renewed application for permission to appeal from a decision of the Upper Tribunal. The sole ground of appeal sought to be put forward is that the hearing before the Upper Tribunal was procedurally unfair. The unfairness is said to lie in firstly the refusal of the Upper Tribunal Judge to accept a skeleton argument from the solicitor advocate representing the appellant, a Mr Sharma. Secondly, the unfairness is said to be evidenced by the refusal of the judge to allow the witnesses to adopt their statements and the fact that the judge asked many questions, including some that it is said could be described as going beyond the realm of clarification. Thirdly, reliance is placed on what is said to have been in the eyes of the witnesses the rude demeanour of the judge and the slightly offensive comments that he is said to have made.
2. This is a second appeal to which the usual second appeal test applies. In Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60 Dyson LJ recognised that the court might be satisfied that there were good grounds for believing that the hearing was "tainted" by some procedural irregularity so as to render the first appeal unfair and might conclude that there was a compelling reason on that account to give permission to appeal even though the appellant had no more than a real prospect of success. It seems to me, though it is not perhaps wholly clear, that in referring to a real prospect of success he was referring to the prospect of success of any appeal apart from the procedural question.
3. I am wholly unpersuaded that this is a case which falls into such a category so that it can be said that the hearing was tainted or something like it. As to the point about the skeleton, it does not appear that the Tribunal itself was ever served with the skeleton before the day of the hearing. In those circumstances the judge was justified in declining to accept it. I have not seen the skeleton so I have no idea how significant it was, but in any event a refusal to accept a skeleton does not preclude the advocate from advancing the submissions contained in it, and there is no suggestion in the evidence that Mr Sharma was precluded from addressing the judge on what was in the skeleton or that he failed to do so. In his reasons for refusing leave, the judge indicated that he made plain that Mr Sharma was free to make whatever submission he wanted and was not under any time constraint for that purpose.
4. As to the statements, it is said by Mr Sharma in paragraph 13 of his witness statement that the learned judge did not allow the witnesses to adopt their statements. But if one looks at the decision of the learned judge, that observation appears to be at best far too general. In relation to the appellant, the decision records in paragraphs 8 to 11 that the witness referred to his written statement which he had signed, identified his signature and confirmed that it had been read to him in Urdu, and said that he was aware of the contents and that they were true. He also referred to an earlier statement and gave the same confirmation. The judge then records that he warned the witness about adopting as part of his evidence the two statements because there might be contradictions between the two. The judge then records that the witness told him that he understood the warning and that he wished to adopt both statements, and those statements were attached by the judge as appendix to his determination.
5. It seems to me that that constitutes allowing the witness to adopt his statements and plainly indicates that they were matters which were before the judge and formed part of his consideration in relation to the case. A slightly different position appears in relation to Mrs Aziz whose statements were written in English and the first of which did not bear an endorsement by an interpreter confirming that before she signed the statement the contents had been explained to her in her own language, although that endorsement was in the second statement.
6. The judgment records that as a result of this the judge permitted Mr Sharma initially to lead the witness and the judgment then sets out the evidence that she gave in consequence. That may not constitute - literally - the adoption of her statements, but it is plain that she was allowed to give evidence by reference to them.
7. It is also apparent from the judgment that the bulk of the questioning was from the representatives of the parties and that the judge asked questions for clarification. It is not apparent to me that he went beyond acceptable limits in doing so, and I note that this allegation does not appear in the grounds of appeal as originally drafted.
8. The same observation goes for the judge's demeanour, a point that was also not in the original grounds of appeal. The way in which it is expressed in the witness statements is quite limited. The appellant refers to the judge's demeanour as being "extremely unreasonable", to his being cut off on several occasions, and to the judge asking many questions, some of which the appellant felt went beyond the realm of clarification.
9. When it comes to specifics, the appellant gives a series of examples. The first is that the judge said that he was an over-stayer and should be sent back to Pakistan. It is very difficult to gauge the nature of this sort of statement without knowing the precise terms and context in which it was made; if it was made. The fact of the matter was that the appellant was an over-stayer and, unless Article 8 considerations mandated a different result, he should indeed return to Pakistan.
10. The second example given is that the younger daughter was asked about her ability to operate a washing machine. That was in fact relevant to the Article 8 claim since what was being suggested was that she was entirely dependent on her parents even for her washing.
11. Reference is then made to the fact that the judge enquired of one of the daughters about the proportionality of the appellant and his wife being removed. Since, however, proportionality was a relevant - perhaps the most relevant - consideration it does not seem to me unacceptable for the judge to make enquiries of an intelligent daughter on that score. Then it is said that the judge went "slightly too far" by stating that the appellant's barrister had compiled the witness statement and implying that he did not know the contents. Again, the precise context and terms are not apparent and it will not be wholly surprising if the judge at some point had observed the contents of the statement had been compiled for the appellant since that was no doubt correct.
12. It is clear from the judgment that the judge was not impressed with the appellant's case, or with the evidence of the appellant and his wife, or indeed with the evidence of the younger daughter. That that was so may well have appeared in the course of the hearing. That is not, however, in my view a compelling reason for an appeal. What is clear from the judgment is that the judge conducted a thorough review of the evidence, much of which he cites, and carefully analysed the position. In those circumstances it does not appear to me that there is now a compelling reason for granting a second appeal and that there would not be such a reason even if one leaves out of account whether or not on the merits, apart from the procedural question, there was a realistic prospect of success. If one includes that consideration, it simply underscores the position which is that this is not an appropriate case to give permission for a second appeal and, despite the very able arguments of Mr Malik for which I am grateful, I therefore decline to give permission.

Order: Application refused