Can Immigration Judges ask too many questions?

If your visa application is refused (for example a family or long residence visa) you may have the right to appeal before the First-Tier Immigration Tribunal. If you have an oral hearing there will be an Immigration Judge, there should also be a Home Office lawyer, and you may also be represented by a legal representative. 

Your lawyer and the Home Office lawyer are likely to ask you questions during the course of the hearing but sometimes the Judge may ask you questions as well. Judges have wide discretion about how to run a hearing and they are allowed to ask questions if they want to. 

But can judges ask as many questions as they want, or is there some sort of limit? And are there limits on the type of questions judges can ask? These interesting issues were recently explored in two cases before the Court of Appeal, which is the second-highest court in England and Wales. In both cases the migrant’s case was refused by the Home Office, was unsuccessful on appeal before the First-Tier Immigration Tribunal and the Upper Immigration Tribunal, and thus came up by way of appeal before the Court of Appeal. 

The first case was called “Hossain” and the second was called “Hima” and, as we shall see, there were very different outcomes. 

The Hossain case was about a student visa and alleged cheating in an English test. There is no doubt that the Judge at the First-Tier Tribunal hearing, Judge Beg, asked very many detailed questions. The Court of Appeal’s written decision includes a compelling account of the conversation between the Judge and Mr Hossain, and we counted nearly 40 questions (which really seems a lot). 

But did the Judge break any rules or make the hearing unfair? Mr Hossain’s lawyer contended that by asking so many questions the Judge had departed from her proper neutral supervisory role and had, as the expression goes, “descended into the arena”, and that this made the hearing unfair. 

But the Court of Appeal did not agree. The Court determined that the Judge’s questions – although there was an unusually large number of them – could not be impugned and that they were relevant and to the point, and it was not evident that the Judge had taken sides in the case.

Another issue that came up was this: if the questioning was so unfair why did Mr Hossain’s lawyer not raise any objection at the time? As it turned out this was not crucial for the case but it is a point generally worth bearing in mind: if something is or may be going badly wrong in the hearing to your detriment your lawyer has a duty and responsibility to speak out. 

But the case of Hima was a very different kettle of fish. This was a European case and revolved around an alleged marriage of convenience. It was alleged that the First-Tier Tribunal judge, Judge Mills, had descended into the arena with inappropriate questions and interventions. 

Rather interestingly, when the case reached the Upper Tribunal the Upper Tribunal judge determined that Mr Hima had some cause for complaint about the conduct of the First-Tier Tribunal hearing, but not sufficient for the decision to be set aside. Undeterred, and perhaps scenting blood (or maybe his lawyer did), Mr Hima proceeded with the appeal to the Court of Appeal. 

This turned out to be a good idea, because the Court of Appeal adopted a very different stance from the Upper Tribunal and they were very critical of Judge Mills. 

After the initial evidence had been given in the First-Tier Tribunal hearing, the Judge had said that he had just a couple of questions but in fact he asked some 25 of them. At some point Mr Hima’s lawyer tried to stop this and said that the Judge was cross-examining and not seeking clarification – which is another way of saying that he had descended into the arena. But the Judge resisted this and insisted that his line of questioning was legitimate. 

In a moment of what may have been pure comedy the Judge invited Mr Hima’s lawyer to apologise to him but he declined. Evidently at this point tempers were raised, and there were some further bad-tempered exchanges, well bad-tempered on the part of the Judge at any rate. But evidently Mr Hima’s lawyer held his ground well.

The Court of Appeal determined that it had been an unfair hearing and some of the questioning had been inappropriate. Not just because of this but also for some other deficiencies the First-Tier Tribunal’s and Upper Tribunal’s decision were set aside and the case is to be heard afresh.

The learning we get from this is as follows. There is no particular limit to the number of questions an Immigration Judge can ask during a hearing but as soon as it is deemed that they have taken sides and descended into the arena then there is unfairness and the Judge’s decision, if it is negative, can be challenged on that basis.

The other learning we get is that if you have an immigration appeal hearing you definitely need a good legal representative. 

Oliver Westmoreland

Senior Immigration Lawyer