Procedural fairness as an error of law
In a handy case that arrived just after I’d finished a Court of Appeal skeleton on the same subject, Mr Justice McCloskey has delivered another of his characteristically interesting determinations. This one is MM (unfairness; E & R) Sudan  UKUT 105 (IAC), on the subject of procedural fairness amounting to errors of law. The key question is whether an appealable error of law can arise through no fault on the part of the judge.
As an aside, most lawyers would consider this a bit of a no brainer, but it is interesting to see a detailed analysis and the context in which the issue arose in this case is also an interesting one.
The headnote reads:
(1) Where there is a defect or impropriety of a procedural nature in the proceedings at first instance, this may amount to a material error of law requiring the decision of the First-Tier Tribunal (the “FtT”) to be set aside.
(2) A successful appeal is not dependent on the demonstration of some failing on the part of the FtT. Thus an error of law may be found to have occurred in circumstances where some material evidence, through no fault of the FtT, was not considered, with resulting unfairness (*E & R v Secretary of State for the Home Department*  EWCA Civ 49).
The problem in the case arose originally from a defective Home Office asylum interview. The asylum claimant complained immediately after the interview that there were a number of problems of which she had been unaware at the time because she did not speak any English and was wholly reliant on the interpreter. The problems arose in the translation from English to Arabic, not in any comprehension problems by the interviewee of Arabic. Specifically, it was said that the Arabic interpreter had difficulty translating various Christian biblical terms, events and dogmas.
On appeal the judge was unimpressed by the apparent failure to make any complaint:
Whilst I accept that matters can be overlooked by busy solicitors, I find the fact that the Appellant’s solicitors did not write to the Home Office pointing out such a significant error in the Appellant’s interview record damages the credibility of her claim that she instructed her solicitor to do so.
In fact the solicitors had sent a detailed letter to the Home Office setting out a number of problems with the interview. However, neither party included the letter in the evidence submitted to the tribunal. The judge could not be faulted, but that ultimately did not matter:
The point to be emphasised is that the judge’s conduct of the hearing is not to be evaluated by reference to a test of reasonableness or fault. Common law fairness is of a quite distinct hue and unfairness is not dependent on demonstrating either.
In his review of the authorities, McCloskey J reminds us all of the case of R – v – Chief Constable of Thames Valley Police, ex parte Cotton  IRLR 344 and the terms of Bingham LJ’s judgment:
Having referred to two of the leading text book commentaries, Bingham LJ continued:
“While cases may no doubt arise in which it can properly be said that denying the subject of a decision an adequate opportunity to put his case is not in all the circumstances unfair, **I would expect these cases of be of great rarity**.” [Our emphasis.]
The reasons formulated by Bingham LJ in support of this proposition included the following:
“(1) Unless the subject of the decision has had an opportunity to put his case it may not be easy to know what case he could or would have put if he had had the chance.
(2) … Experience shows that that which is confidently expected is by no means always that which happens ….
(4) In considering whether the complainant’s representations would have made any difference to the outcome, the Court may unconsciously stray from its proper province of reviewing the propriety of the decision making process into the forbidden territory of evaluating the substantial merits of a decision.
(5) This is a field in which appearances are generally thought to matter.
(6) Where a decision maker is under a duty to act fairly the subject of the decision may properly be said to have a right to be heard and rights are not to be lightly denied.”
The judge’s mistaken belief that there was no letter from the solicitors was also held to be a rare example of unfairness arising from a mistake of fact: R (Iran) v SSHD  EWCA Civ 982.
Despite the evidence in question plainly being available earlier (because it was in fact produced by the same solicitors who continued to represent the appellant) and thus not satisfying the Ladd v Marshall test the tribunal held that there was a material error of law and remitted the case back to the First-tier Tribunal for a fresh hearing.
My case involves Home Office failure to send a Rule 35 report with evidence of scarring to either the other side or the tribunal in a Detained Fast Track appeal and the judge’s subsequent finding that there was ‘no medical evidence’ to support the claimed injuries. Hopefully a similarly positive outcome will follow.