Can an Immigration Judge Be Biased?

In November 2019, the Upper Tribunal ruled in MR v Secretary of State for the Home Department PA/02377/2019 that an immigration judge’s ruling in an asylum case gave the sense that he “considers all asylum seekers to be liars”.

In giving the decision, Upper Tribunal Judge Martin said that the language used by Judge Geraint Jones QC in the First-Tier Tribunal suggested that the Appellant changed his evidence during the hearing when he claimed to be an atheist. Judge Jones QC claimed this fact had not been raised previously. However, the Upper Tribunal said this was “not true” as evidence showed the Appellant had referred to his atheism in his asylum interview and in a written statement.

The Upper Tribunal heard evidence that Judge Jones QC was “aggressive and sarcastic”, giving “every impression of being biased against this appellant in particular and asylum seekers in general”.

Judge Martin concluded:

“an impartial observer sitting in court at this hearing would have come to the conclusion that this Appellant did not have a fair hearing. The Decision and Reasons itself gives the impression that this particular judge considers all asylum seekers to be liars. It may be that the Appellant’s claim may be found to be not credible but the terms in which the adverse credibility findings are couched in this Decision and Reasons do not give the impression of an impartial assessment of the evidence.”

A previous claim of bias by Judge Jones QC was dismissed by the Upper Tribunal in 2018 Ortega (remittal; bias; parental relationship) [2018] UKUT 298 (IAC). In this case, the judge stated that the Appellant showed “criminal tendencies and lack of moral fiber”. However, in this case, the claim of bias was dismissed.

It is shocking to think that a judge in your immigration case could be biased towards you, a particular characteristic you have, such as your race or gender, or the type of legal matter you are involved in. Fortunately, the United Kingdom has one of the strictest separation of powers (explained below) in the world and judicial bias is rare. But no system is full-proof, and judges are fallible humans. Therefore, bias can occur.

An impartial and independent judiciary is a cornerstone of British democracy. The Courts and Tribunals Judiciary states:

“It is vitally important in a democracy that individual judges and the Judiciary as a whole are impartial and independent of all external pressures and of each other so that those who appear before them and the wider public can have confidence that their cases will be decided fairly and in accordance with the law. When carrying out their judicial function they must be free of any improper influence. Such influence could come from any number of sources. It could arise from improper pressure by the executive or the legislature, by individual litigants, particular pressure groups, the media, self-interest, or other judges, in particular, more senior judges.”

In the UK, judges are selected by the Independent Judicial Appointments Commission. Before 2006, judicial appointments were made on the recommendation of the Lord Chancellor, who was a Government Minister. This method was criticised because appointments were made by a government minister, judicial independence was at risk of prejudice. Also, it was argued that the pool of people the Judiciary was selected from was extremely narrow.

Now, according to the Courts and Tribunals Judiciary:

“The new system of selection seeks to encourage such candidates to come forward. All appointments are made by open competition. The Commission recommends candidates to the Lord Chancellor, who has a very limited power of veto. The Commission also has a specific statutory duty to “encourage diversity in the range of persons available for selection for appointments”. “

When it comes to diversity within the Judiciary, significant steps have been made concerning women, who now make up 32 percent of judges in the courts and 46 percent of tribunal judges. However, there are still areas in which the Judiciary has a long way to go before it reflects general British society. For example:

• Only 11 percent of new judges are Black, Asian, or Minority Ethnic, (BAME). According to the 2011 census the BAME population in the UK is 13.8 percent (although this figure is now likely to be higher). Although the percentages look fairly even, it does not consider regional disparity. For example, London, where a majority of immigrants settle, is 40 percent BAME.
• In 2019 research showed that 65 percent of senior judges were privately educated and 71 percent had attended Oxbridge (Oxford or Cambridge University).

These statistics above do not evidence that bias could occur because of there existence. However, it does call into question how comfortable a BAME migrant appearing before a First-Tier Tribunal Judge who is likely to be white and educated at one of Britain’s elite schools feels. It is right to also question the ability of privately educated, white judges to understand the ordeals faced by asylum seekers and migrants (who are often poor and BAME) and the challenges they face.

In summary

The #blacklivesmatter protests have bought into focus the long way society has to travel before bias towards BAME people is eliminated. In May 2020, few gave a second thought to the statute of Edward Colston, let alone understood his legacy (Colston was a 17th-century slave trader and a member of the Royal African Company which transported about 80,000 men, women and children from Africa to the Americas). As at the time of writing, the mayors of London, Manchester, and many other UK and European cities are reviewing whether certain people of the past should be commemorated in modern streets and squares.

The point must be reiterated that in the UK, judicial bias is rare, and our judges take the utmost care in behaving impartially and basing their decisions solely on the evidence placed before them. And as seen in the civil case of M&P Enterprises (London) Limited v Norfolk Square (Northern Section) Limited [2018] EWHC 2665 (Ch) and 2018 Ortega (remittal; bias; parental relationship) if a judge appears hostile or makes unfavourable comments during a trial, this will not automatically lead to the upholding of an allegation of judicial bias or that the trial was unfair. These cases illustrate that the threshold for overturning a judgment on the grounds of judicial bias is (unsurprisingly) high.

So, what can you do if you feel your immigration judge is biased towards you or your case? This and other questions will be answered in our next article.