“MULTIPLE SERIOUS ERRORS” IN JUDICIAL DECISION MAKING : THE UPPER TRIBUNAL DECISION IN FULL

The case of AA069062014 & Ors. [2017] UKAITUR AA069062014 has already attracted considerable attention on social media and beyond. The Upper Tribunal (Immigration & Asylum Chamber) considered appeals in 14 cases.  The major issue was the tribunal judge.  Here are the first 48 paragraphs of the judgment which dealt with generic issues.  The judgment is of wider relevance because it sets out the need for reasons, coupled with clear findings of fact.

“… there is a virtue in brevity. But the basic requirements of a judicial decision must be met in all cases. It is necessary to set out sufficient of the facts to give a context to the dispute; sufficient of the evidence and submissions to show what the dispute was; findings on any disputed material fact and sufficient and adequate reasons for those findings; and adequate reasons for the conclusion, derived from the facts and the applicable legal rules. In the decisions under appeal before us it is not easy to find even one of those basic requirements being met. The reasons given are not proper, intelligible or accurate. The failures amount to errors of law.”

THE JUDGMENT OF THE UPPER TRIBUNAL

“DECISION AND REASONS
INTRODUCTION
  1.  The Tribunal has arranged to hear in the same list a number of appeals from a single judge, Judge Majid. This no doubt unusual arrangement has been prompted by the following factors. First, many decisions by judge Majid give rise to successful applications for permission to appeal. Secondly, the grounds of appeal have considerable similarities: they frequently include assertions that insufficient reasons are given for even a well-informed reader to work out the reasons for the decision, that there is no reference in the decision to the relevant law or the contested facts, and sometimes that there were problems of communication or of fairness during the hearing. Thirdly, the determinations themselves are very short and substantial parts of them are word for word the same, or nearly so, from determination to determination, leaving only relatively small parts dealing with the individual case. Thus, despite the dissimilarities between the appeals before the First-tier Tribunal that are determined by Judge Majid’s decisions, the numerous appeals from them to this Tribunal are essentially similar and raise similar issues.
  2.  We are aware of the dangers that may be posed by collecting together a number of appeals in this way. There is the possibility that we will be influenced in making our decision on any appeal by factors that do not in truth belong to that appeal. There is also the difficulty of reputation: parties and judges may, whether consciously or not, attribute faults to a judge only for the bad reason that there is a weight of opinion against him. On the other hand, when a body of appeals sharing characteristics such as those set out above are heard together, we have the advantage of comparison, and in the present case we have decided that it is necessary in the interests of justice that as well as deciding the individual appeals on their own merits we should consider the Judge’s work as it appears in these decisions as a whole. It is only by making comparisons that it is possible to say whether a particular paragraph or series of paragraphs is indeed common to several determinations. It is only by making comparisons that it is possible to say whether a particular apparent error is the result merely of a slip, or whether it pervades a judge’s work.
  3.  There is a further factor, which we express with considerable caution. It is this. In the Upper Tribunal we hear numerous appeals in which a single point of error or omission is said to be discoverable in the determination under appeal. We have, of course, no duty to the First-tier Tribunal or its judges, other than perhaps to be clear in any guidance we give to them: our duties are to the law, the parties and the interests of justice. Nevertheless, in undertaking those duties we are likely to make our decisions on the assumption that each appeal is from a decision of a judge who has been duly appointed and trained, and, broadly speaking, may be considered to know and do the job with a degree of skill and competence. The overwhelming majority of decisions under appeal are capable of giving the reader confidence that that is the case. Where there is an omission or slip in an otherwise apparently wholly competent and careful judgment it may well be that on appeal the proper conclusion is that the judge did have the correct facts, or law, or principle in mind, and that the point on which the appeal is brought is therefore without merit. That is one of the reasons why any alleged error must be looked at in the context of the decision as a whole. This is the universal experience of those who take judicial decisions on the work of others, whether on appeal or review.
  4.  It would, however, be quite wrong for those determining appeals to make assumptions about the merits of a particular ground of appeal in a context that does not apply to the judge in question. If, therefore, it should be that review of a judge’s decisions leads to the conclusion that there is something lacking in the skill or competence that he brings to his task, it is right that we should say so. A suspicion that might arise from examining only one case, as is normally the position on appeal, may be either confirmed or wholly dispelled by examining a group of cases.
  5.  We are also aware that Judge Majid has a physical disability: he is blind. Indeed, he mentions that expressly or by implication in several of the decisions under appeal. We understand that the statutory duty to make reasonable adjustments is carried out by the provision of an assistant to help him to appreciate the contents of documents. It may be wholly unreasonable to expect him to assimilate a complex matter in writing at short notice. But it is not, and indeed cannot reasonably be, suggested that blindness prevents a person learning or applying law, or performing the crucial judicial tasks of hearing both sides and reaching, and expressing, a properly reasoned conclusion. It is failure in these areas that form the grounds of appeal we have to consider.
  6.  We each have considered all the issues raised by each of the appeals, and we have each made substantial contributions to this decision. In this general part of our decision (paras [7] – [47]), we consider those issues that appear to us to be common to many or all of the decisions under appeal. It is to be read with the decisions on the individual appeals, which follow.
THE JUDGE’S TASK
  1.  In every one of the decisions under appeal there occurs the following paragraph, word for word or very nearly so:
“I reminded myself of the judgment of Henry J (later on promoted to be a Lord Justice) in ex parte Gondolia [1991] Imm A.R. 519. It is not incumbent upon me to isolate every single piece of evidence and indicate whether I have found it relevant to the issue. I am only obliged by the superior precedents to give ” sufficient and adequate” reasons and I am not under a duty to refer to each and every piece of evidence and it therefore does not follow that because I have not referred to certain facts, they have not been taken into account.
  1.  It is perhaps worrying that the judge finds it necessary to resist the hypothetical critic of his decision on the ground of lack of detail; it would in addition be surprising if a sentiment in an extempore judgment on judicial review of the Immigration Appeal Tribunal refusing permission to appeal in a primary purpose appeal in the late 1980s were today to be regarded as the locus classicus on the duties of a Judge of the First-tier Tribunal. In fact, not merely does the judgment in Gondolia not appear to contain any such guidance as that cited, but it is impossible to draw such general wisdom from it either. The decision of this Tribunal in Kalim v SSHD(IA/30716/2014, [2016] UKAITUR IA307162014 ) contains a careful examination and analysis of Gondolia by Deputy Upper Tribunal Judge O’Ryan, which we endorse and adopt with gratitude. That was an appeal by an appellant against a decision of Judge Majid, so although it is unreported it is highly likely that it was brought to the Judge’s attention. The appellant complained that the Judge had failed to consider the relevant Immigration Rules, failed to consider the evidence, failed to make findings of fact, and failed to give adequate reasons for his conclusion. The judge found that the inadequacies of the determination demanded that it be set aside, with no findings preserved.
  2.  It is difficult to see that there could be any good reason for the judge to cite Gondolia. His doing so, and the words surrounding the citation, suggest not merely that he has not read (or has forgotten) Gondolia itself, but that he has also not read any of the other numerous decisions on the duties of a judge in this regard. Even if he wanted to confine himself to the era of Gondolia, the judge’s own research ought to have led him to the words of Schiemann J in R v IAT ex p Mohd Khan [1992] Imm AR 367, 374, another primary purpose case:
“In my judgment adjudicators should indicate with some clarity in their decisions:
(1) what evidence they accept;
(2) what evidence they reject;
(3) whether there is any evidence as to which they cannot make up their mind
whether or not they accept it;
(4) what, if any, evidence they regard as irrelevant.”
  1.  That view might be regarded as the opposite extreme, and would have revealed to any inquiring lawyer that Henry J could not be regarded as having had the last word. The Judge should also be aware of the starred judgment of the IAT in Slimani v SSHD(01/TH/00092, [2001] UKIAT 01TH00092 ), binding on him, in which Collins J as President points out that it is wrong to try and follow a checklist, but that it is in all cases necessary to give proper reasons.
“7. … It is of course essential that proper reasons are given by adjudicators and (albeit now only in summary form) by the tribunal. But it is not necessary to deal in detail with every matter; the reasons need only deal with the substantial points which have been raised: seeRe Poyser & Mills Arbitration [1964] 2 Q.B. 467. They must tell the losing party why he has lost and enable him to appreciate whether there has been any appealable error. In Save Britain’s Heritage v Secretary of State for the Environment [1991] 1 WLR 153, Lord Bridge said this:-
“The three criteria suggested in the dictum of Megaw J [in Re Poyser & Mills Arbitration] are that the reasons should be proper, intelligible and adequate. If the reasons given are improper they will reveal some flaw in the decision-making process which will be open to challenge on some ground other than the failure to give reasons. If the reasons given are unintelligible, this will be equivalent to giving no reasons at all. The difficulty arises in determining whether the reasons given are adequate, whether they deal with the substantial points that have been raised or enable the reader to know what conclusion the decision-maker has reached on the principal controversial issues. What degree of particularity is required? I do not think one can safely say more in general terms than that the degree of particularity required will depend entirely on the nature of the issues falling for decision”.
  1. … The observations of Schiemann, J inR v I.A.T. ex p. Amin[1992] Imm AR 367 at 374 are all too often cited as if they were a statutory requirement and are regularly misunderstood. … Those observations were in the context of a failure by the adjudicator to give adequate reasons for her findings on primary purpose in relation to a marriage application and the headnote in the report correctly refers to the observations under that heading: see [1992] Imm A.R. 367 Heading 3. They do not mean nor could the learned judge have intended that they should mean that an adjudicator must carry out the exercise specified in them in relation to all the evidence given before him.
  1. But even in relation to specific issues which are material and which have to be properly reasoned, they go too far. The reality is that it is quite impossible to set out a detailed check list of what must be done in all cases. It will in many cases be quite unnecessary to set out evidence regarded as irrelevant; indeed, very few judges would recognise that as an exercise they carry out in giving judgment following a trial. Equally, the circumstances will dictate whether there is a need to identify the evidence upon which they cannot make up their minds, although in deciding on credibility it may be necessary to deal with such evidence. The only guidance needed is that the conclusions reached must be justified and it must be clear that any adverse findings in particular are based on evidence put before the adjudicator or the tribunal and a proper explanation must be given to show why the conclusions on the issues of substance have been reached. We have no wish to encourage lengthy decisions. Succinctness is a virtue provided that the guidance given by Lord Bridge which we have already cited is followed and the decision does show why the findings of material fact have been made and the important conclusions have been reached.”
  2.  In giving his decision in Kalim, the Deputy Judge referred also to the decision of this Tribunal, given by the President, in MK (duty to give reasons) [2013] UKUT 641 (IAC), of which again Judge Majid should have been aware. The headnote is as follows:
“(1) It is axiomatic that a determination discloses clearly the reasons for a
tribunal’s decision.
(2) If a tribunal finds oral evidence to be implausible, incredible or unreliable or a document to be worth no weight whatsoever, it is necessary to say so in the determination and for such findings to be supported by reasons. A bare statement that a witness was not believed or that a document was afforded no weight is unlikely to satisfy the requirement to give reasons.”
  1.  The decision itself cites another statement to the same effect, by Lane CJ in R v IAT ex parte Khan [1983] QB 790.
  2.  The second half of Judge Majid’s Gondolia paragraph is a not inaccurate statement of the position that might be taken on an appeal against a First-tier Tribunal decision, but it is odd to find it given as a sort of excuse. The truth of the matter is that if there is anything in the judge’s mind as something that a party might consider needed mentioning, then it should be mentioned and dealt with, rather than being omitted with an explanation such as this.
  3.  Any assurance that the reader of a decision might derive from what is said in that paragraph is, however, likely to be put in serious question by what follows, again in each case and again word for word or more or less so:
“I am concerned only with “dispositive” reasons which are obviously relevant to my Decision – of course “dispositive” means that the reason involved enables me to deal with an issue fairly. An example of that is if a person is getting the income of £1,000,000 per annum then the “maintenance” issue is dealt with if I have reliable evidence for this datum and I need not spend time giving reasons for matters I deem to be “marginal”.
  1.  This is wholly obscure. The first half of the first sentence, before the dash, looks as though it might be intended as a reference to the principle that irrelevant matters usually do not need to be included in a decision, although of course even that is not a universal rule. Even interpreted like this, however, the words pose some problems. ‘Obviously’ does not seem right, because the question is whether the matters are relevant, not whether they are obviously relevant. The whole phrase beginning ‘which’ seems to suggest that there are some ‘”dispositive” reasons’ that are not obviously relevant and so do not concern the judge. And it is far from clear exactly what ‘reasons’ itself means: in the context it looks as though it is a reference to the facts that might need to be found in order to establish a legal entitlement, but ‘reasons’ is not the word for that. Perhaps it means the judge’s expressed reasons for his findings, but in that case what is said seems to become even more obscure. No light is shed by the words following the dash. Nothing in a judge’s consideration can be other than dealing with any issue fairly. If that is what a dispositive reason means, then it is the whole of the judge’s work. One might have expected that a statement of this sort would indicate that the crucial things that need mentioning are those that have been the subject of concern between the parties and (or) those that regulate the outcome of the litigation. That, however, is clearly not what Judge Majid is saying here.
  2.  There is then the example. The obscurity deepens. If there is an issue as to ‘maintenance’, the judge will need to determine it, and give reasons for his conclusion. It is impossible to conceive of a case where that would not be true; and the fact that the judge might consider that he had ‘reliable evidence for this datum’ would not absolve him from the duty of expressing his decision and the reasons for it. It could not be ‘marginal’. There is, however, a further concern that arises from this example. The issue has always been whether maintenance is ‘adequate’; and it is difficult to see how the mere fact that ‘a person is getting the income of £1,000,000 per annum’ could answer ‘the “maintenance” issue. It would depend what was left out of that income, after other commitments, for the requisite maintenance.
  3.  We are of course aware that a judicial decision is not a statute, and is not to be subject to the same process of detailed interpretation. The problem here, however, is that the paragraph in question does not appear to be intelligible whatever process of interpretation is applied to it. We accept that none of the above concerns would be of great importance if the rest of the decisions showed that whatever he said in these paragraphs the judge was aware of what he needed to do, and did it. Unfortunately, that is not the case.
SUBSTANTIVE LAW
  1.  In many of the decisions Judge Majid says this:
‘I cannot ignore the “legal requirements” stipulated by immigration law. It is incumbent upon me to advert to the new Rules giving respect to the intention of the House of Commons dictated by the supremacy of Parliament.’
  1.  That is perhaps confused as an exposition of the constitutional position, but certainly the judge’s job is to apply the law. It is perhaps a little surprising that this passage seems only to come at the very end of his decisions, almost as an afterthought, and is sometimes followed immediately, in the next sentence, by a demonstrably wrong statement of the law to be applied. We may give examples:
‘The Appellant can benefit from the relevant Rules because she is a genuine student who should be helped’ (in a case in which the question was whether the student met the detailed requirements of the rules and the judge did not find that she had met them; he had no power to ‘help’ her).”[Kaur: IA/30887/2015]
‘The Appellant ought [sic] to benefit from the relevant Rules since the compassionate circumstances of the case lead to that conclusion” (in a case where the relevant Rules are neither identified nor applied by the Judge, and do not include any provision for compassionate circumstances). [Boateng-Dansoh: IA/23617/2015]
“The Appellant should be aware that the current fiscal crisis cannot allow judges to permit people to remain in the UK when British citizens need jobs” (not surprisingly, this sentiment is not found in any of the law the Judge was supposed to be applying). [EDO and others: HU/01882/2015]
‘The Appellant cannot benefit from the relevant Rules because the evidence he had presented to the Respondent has led it to make the negative decision” (confirming what might otherwise have been only a suspicion from the previous paragraph that the judge did not appreciate he had to make the decision himself, which is confirmed again at the end of the decision: the “negative decision about the deception is “reasonable” and [the appellant] “is stuck with it”). [Patel: IA/32901/2015]
“The Appellant can benefit from the relevant rules and the discretion advocated by the Superior Courts” (in a case in which neither the rules nor discretion was in issue). [Okpala: IA/32286/2015]
  1.  Many of the cases depend on the application of the Immigration Rules. Taken as a whole, those rules are notoriously complex, but an individual case usually raises a specific issue on the application of one or more provisions of the Rules to the facts. Judge Majid refers in general terms to the Rules, but in none of the decisions under appeal does he set out the part of the Rules that is in issue, and to be frank, in none of the decisions under appeal does he give the least reason to suppose that he is aware what the relevant requirements of the Rules are. The conclusions cited above indicate that; and we give details in our decisions on the individual appeals. As a result, whoever wins the case can have no confidence that ‘the “legal requirements” stipulated by immigration law’ have been followed at all. It is not surprising that in a number of the appeals before us, the grounds of appeal focus on the inadequacy of reasons given. Parties to an appeal are entitled to know why they have won or lost.
  2.  No more than the most basic principles of law are referred to in the decisions, and even these seem to be quite often wrong. Again, we give examples:
“The burden of proof is upon the Appellant and the standard of proof is the balance of probabilities” (in an asylum appeal). [Shinwari: RP/00104/2016].
“The Appellant … does not meet the basic requirement of being outside the country from which he is seeking protection” (in another asylum case; the appellant is in the UK and claims that he will be persecuted in Bangladesh). [MM: AA/06906/2014].
“The best interests of the children are involved and that creates a knockout element” (the opposite of what the authorities say). [Okpala: IA/32286/2015].
“Whenever one feels that the case misses the point marginally judicial discretion should help” (there is no judicial discretion available).[Okpala: IA/32286/2015].
“I am willing to exercise my discretion in favour of the Appellant’s very young children” (different case; same problem). [Wang: IA/32046/2015].
“I am happy to exercise “discretion” because one cannot overlook the compassionate facets of this case” (different case again: same problem).[Stephen: OA/07779/2015].
“According to the IDI guidance viz paragraph 320, refusal of leave is not permitted unless “there are aggravating circumstances” (same case as the foregoing; a gross misapprehension in the context of a case about whether the appellant met the requirements of the Rules as part of a human rights appeal; the Rules provide time after time that leave is to be refused if the requirements of the Rules are not met, and paragraph 320 had no application to the case). [Stephen: OA/07779/2015].
“John Smith, a patrial” (status abolished in 1981). [Boateng: IA/31918/2015].
“My attention is drawn of the case of the Upper Tier Tribunal of the most recent case of Sala (case 00411 of 2016) and a careful perusal of that case has led me to believe that my negative decision is fully justified bearing in mind the current fiscal crisis and the views announced in that case” (this “careful perusal” evidently did not enable the judge to appreciate that the decision, wholly concerned with whether there is a statutory right of appeal in certain EEA cases concerning unmarried partners, had absolutely nothing to do with the case he was considering, which was about a married couple, both Ghanaian, and their children, both Ghanaian; the ‘views announced’ in Sala could not do anything to justify his decision, and ‘the current fiscal crisis’ has of course nothing to do with either Sala or the appeal the Judge was deciding). [EDO and others: HU/01882/2015].
“The new provision in paragraph 117 of the Immigration Act 2014 clearly says that there is no “public interest” in a case where a person has some things in his/her favour like employability, education gained and the English language fluency. This statutory concept permits the Respondent to reject an Application for any discretionary or other relief by making sure that such conditions do exist in a particular case” (the provision is question appears to be section 117B of the 2002 Act; the summary of the provisions and their effect is inadequate and inaccurate). [EDO and others: HU/01882/2015].
  1.  In our judgment, these errors, and others to be found in Judge Majid’s decisions, are serious. They give the impression that the judge has very little idea of either his own (limited) powers or the content of the law that is in issue in the appeals before him. The error about the standard of proof in an asylum appeal is the sort of thing that the Upper Tribunal might well think was just an unimportant slip of the pen or ill-advised use of a standard paragraph if it occurred in a decision that was in other respects clearly an application of the appropriate law and standard of proof; but in Judge Majid’s decisions there is so little attention paid to the law or (as we shall show below) the actual facts of the cases that no such allowance can be made. The point about not being outside the country from which protection is sought demands more detailed comment. In the case of MM (AA/06906/2014), the appellant had obtained a visa to travel to the United Kingdom where, after a period of time as a student, he claimed asylum when threatened with removal as an overstayer. No doubt issues of credibility arise: they are fully discussed in the Secretary of State’s decision and the basic facts of the applicant’s history are rejected. Judge Majid makes no decision on the applicant’s credibility; indeed, he makes no reference to the reason the appellant claims to be at fear of persecution or the evidence relied upon to support that claim. Instead, the Judge concludes that the appellant is excluded from protection because of his obtaining a visa from the Bangladeshi government before he travelled. The judge heard oral evidence from the Applicant and cannot have thought he was not outside Bangladesh, so he must think that a history of obtaining a visa removes a person from the Refugee Convention. That is a misconception so basic that it is difficult to deal with briefly and coherently: suffice it to say that it essentially ignores the terms of the Convention, the authorities from (at latest)Ravichandran [1996] Imm AR 97 onwards, and the entire trend of state and judicial status determination.
  2.  The Judge’s impression that he is empowered to allow an appeal on the basis of his discretion or dismiss it on the basis of his impression of the economy is similarly a really serious error. First-tier Tribunal Judges, Immigration Judges and Adjudicators have never had a power to dismiss an appeal on the grounds of a general feeling of justice or some other factor, when the Appellant meets the requirements of the relevant Rules. They have had power to allow appeals if they thought that a discretion found within the terms of a Rule should be exercised differently, but no general discretion to allow appeals, and the limited power was abolished by the Immigration Act 2014. A judge who expresses himself (and acts) in the way indicated in the examples above is rightly going to be suspected of being ignorant of his jurisdiction, or exceeding it, or both.
  3.  What makes this feature of the decisions particularly troubling is that it appears to replace, rather than supplementing, the necessary consideration of the legal issues actually raised by the appeals. So far as the latter are concerned, Judge Majid’s decisions are almost wholly silent.
  4.  Another difficulty in appreciating what the judge considers his job to be appears from the following statement, to be found in some form in a number of the decisions:
“In reaching my decision I am fully conscious of the fact that the overriding objective of the judicial function guides that judges in pursuing expedition and efficiency in disposal of cases should not sacrifice justice. Thus I am alert to the fact that my Decision does not violate any of the following legal principles applicable in this case and coming from binding precedents. These principles are:-
(a) I am conducting an appeal and not a Judicial Review and therefore cannot restrict myself in conducting the proper evaluation of the evidence on the matters of fact; if a factual issue is properly raised before the Respondent the evidence surrounding that issue can always be taken into account. I must say to the Presenting Officer that my consideration of this appeal is not confined to points of “law”. Of course, if I was sitting in an appellate court, I would have to be concerned only with the points of “law”.”
  1.  We have read and re-read this. We do not know what it means. As one of the examples cited above indicates (in relation to the appeal of Patel: IA/32901/2015), Judge Majid does not always realise that it is his task to make a decision on the evidence, rather than merely deciding that the Secretary of State was entitled to reach the conclusion she did. It may be that it is intended to mean that evidence, if available, is always admissible. Perhaps that is the reason why in another of the cases under appeal the Judge decides that the Secretary of State was wrong to conclude in September that she had not provided with the evidence of a relationship that she and the Rules require, because it was provided in late October. We do not know. The particular iteration of this sentiment is taken from the case of Shinwari (RP/00104/2016) where it is preceded by a reference (avoiding any discussion of the actual law) to a controversy between the parties, and then this:
“This controversy was fully discussed and the Presenting Officer Mr Harvey said the Home Office is entitled to have its own interpretation of the revocation clause. It is not just background circumstances but individual circumstances that can be taking into account. If I may say so Mr Harvey conducted himself with special competence before me. He was the picture of politeness and I did not outline my contradictory view to him – my view is contained in [the paragraph already cited] below.
  1.  Again, it is difficult, perhaps impossible, to know what is meant. Evidently the judge disagreed with the submission that ‘individual circumstances that can be taking into account’ ([18]), but why it is said that the contrast with Judicial Review provides this ‘contradictory view’ (referring to [22(a)] of the decision) is mystifying. The conclusion on whether individual circumstances could be taken into account would presumably be a decision on a point of law, and the Judge was obviously required to decide it. Taking them into account would then be making a decision not confined to points of law. So far as we can read the decision the Judge decided neither the question of law nor the question of fact; as an explanation for these failures the passage cited is wholly inadequate.
EVIDENCE AND THE FACTS
  1.  Specific reference to the facts of cases is sparse; in some of the decisions it is even sparser than specific reference to the law. We have already identified two clear errors of law in the third and fourth examples in the second set above (paragraph 21). Those two statements come from the same decision (Okpala: IA/32286/2015). It is a decision in which, in 30 paragraphs (the decision, running to over seven pages, is an unusually long one for Judge Majid) the Judge gives no hint at all of what the case is about except to say that there are children involved and that the appellant depends on “the robust exercise of discretion for her children not to be separated from her”, that “the Appellant’s story has become complicated”, and that there is a social worker’s opinion that “the Appellant does not pose a danger to her children any more”. The rest is silence.
  2.  This is a case in which refusal decisions were made in respect of a mother and her four children. The Secretary of State’s decision letter runs to 12 pages in small print. The only available ground of appeal was that the decisions breached the Human Rights Act 1998. There does not appear to have been any threat that the mother would be separated from her children, who were all (as we have said) the subject of adverse decisions and (if the formal parts of Judge Majid’s decision are correct) on whose behalf no appeal against those decisions was raised.
  3.  There is no indication of how the issue of separation came to arise. There is no indication of what the trouble was that caused the appellant to be assessed as a danger to her children, how it was resolved, or how Judge Majid decided the issue (as distinct from reciting the view of an unnamed social worker).
  4.  There is almost no indication of what took place in the hearing, except for what we have already mentioned, and the following. In the middle of a hotchpot of generalities in paragraph 17 is a series of assertions about freedom of speech for academic lecturers and its recognition by courts and Tribunals (except apparently the Employment Appeal Tribunal) “in particular when a postgraduate research document is being considered”. This discussion occupies nearly half a page – a substantial proportion of the decision. Unlike almost all the rest of the decision, it is not a paragraph frequently used by the Judge to give his decisions what bulk they have. The reader has to assume that it refers to something that was in the Judge’s mind as a result of evidence or submissions at the hearing, for there is nothing in the Secretary of State’s decision, or the other documents on file, that could raise it. What the issue was, who said what about it, what is the relevance of the judge’s observations, and how he resolved the issue, all remain matters of speculation. All that the reader can tell is that there are numerous features of the case that the judge needed to decide but did not.
  5.  A similar difficulty arises in another case featuring twice in paragraph 21 above, citing reference to the “compassionate facets” and to paragraph 320 (Stephen: OA/07779/2015). There is nothing in the facts of the case or elsewhere in the decision that begins to show why the judge was thinking about paragraph 320 of the Immigration Rules, which largely contains provisions dealing with those who would be successful under the Rules but for some form of misconduct. We do not know whether there is a whole aspect of the case that emerged only at the hearing and whose only visible relic is this reference, or whether the judge was simply not attending to what he was doing. We suspect the latter, but in either event it is a cause for concern. The reference to the “compassionate facets”, on the basis of which the appeal was apparently allowed, is entirely unspecific. It was crucial to identify what the facts were that elevated this case above the ordinary run of cases governed by the application of the Rules. The appellant applied as a spouse, there was little evidence that the relationship was subsisting and no evidence that the financial requirements of the rules could be met. The only factors detectable from the determination as going in the appellant’s favour are that the parties are married and her husband “has been fully committed to her welfare”. There is no indication of how the facts and evidence before the judge could lead to an identification of “compassionate facets” particular to the case before him and sufficiently strong to override the rules.
  6.  Another case, Wang (IA/32046/2015), concerned the partner of a British citizen; there were, by the time of the hearing, two children. The Judge refers to them as the appellant’s grandchildren: but that is the least of the factual difficulties in the case. The respondent refused the appellant’s application for further leave for a number of reasons given in detail in the refusal decision. The first was that she had obtained her existing leave by fraud (this is an ETS case). The second is that she did not appear to meet the specific requirements of the rules in relation to income, having failed to evidence the minimum level required, and having submitted a payslip that appeared to be unreliable in that it was dated after the application to which it was attached. Thirdly, the appellant failed to meet either the suitability or the eligibility requirements of the parent route. Fourthly, the applicant did not meet the requirements of the rules in relation to a grant of leave in recognition of private life: in particular, she was a relatively frequent visitor to her home country. Finally, there is consideration of the case under article 8 outside the Rules. The Secretary of State makes a number of observations about the deception, and concludes that it is so clearly in the public interest that the appellant be required to leave the United Kingdom that a separation from her child (then only one) is justified: they can be looked after by their father.
  7.  The grounds of appeal take issue with the finding of deception, and assert that the appellant’s removal would be disproportionate. They make no reference to the Rules.
  8.  The Judge says in his decision that he has borne every provision of the Rules “in mind meticulously”, but does not make any further reference to them. Nor, more alarmingly, does he make any reference to the allegation of deception or the grounds challenging it. He does not even include his standard paragraph setting out the burden of proof in cases where deception is alleged (although that paragraph is often included in decisions where it can have no relevance). As a result, the appellant is deprived of what she must partly have sought – a judicial finding that the deception was not established; and the parties are both deprived of any assurance that the judge even knew that that was a crucially important feature of the challenged decision. The Judge also makes no reference to the appellant’s failure to meet the income requirements of the Rules. It is trite law that these factors would need to be taken into account even where a decision is sought outside the Rules, because the Rules set out the Secretary of State’s understanding of the balance of public interest under article 8 and the extent to which the requirements of the rules are met, and the question whether the appellant has been guilty of deception, are factors that must feed the proportionality exercise. Additionally, s 117A of the Nationality, Immigration and Asylum Act 2002 sets out factors that every court or tribunal is required to consider when undertaking the article 8 balance, some of which require findings of fact. Dr Majid makes no reference to the provisions, to the requirements, to the relevant facts, or to his assessment. All that can be clear to the reader is that the judge has failed to deal with the contentions of the parties, to apprehend the facts or to apply the law to them. This is indeed the case in which the judge purports to allow the appeal on the basis of exercising his discretion in favour of the children.
  9.  As Collins J said in Slimani, there is a virtue in brevity. But the basic requirements of a judicial decision must be met in all cases. It is necessary to set out sufficient of the facts to give a context to the dispute; sufficient of the evidence and submissions to show what the dispute was; findings on any disputed material fact and sufficient and adequate reasons for those findings; and adequate reasons for the conclusion, derived from the facts and the applicable legal rules. In the decisions under appeal before us it is not easy to find even one of those basic requirements being met. The reasons given are not proper, intelligible or accurate. The failures amount to errors of law.
OTHER MATTERS
  1.  Given that Judge Majid makes no detailed reference to facts or to law, it might be expected that his decisions are short, and indeed they are. Despite that, however, they are full of observations many of which are of dubious correctness, some of which are of dubious relevance, and a few of which are wholly inappropriate.
  2.  The decisions all begin with standard paragraphs. That is something we do not criticise, although even when using a standard paragraph a judge is of course responsible for ensuring that the assertions in it are true. Given the points we have set out above there must be some doubt of the accuracy of the statements in standard paragraph 2 that “I have read [the] refusal carefully and have taken into account its text in assessing this case, paying specific attention to the justifications advanced for the negative decision” or that in standard paragraph 3 that the Judge has borne in mind all the paragraphs of the Immigration Rules and the provisions of the “recent Immigration Act 2014” (no reference ever seems to be made to previous legislation). There may even be doubt about standard paragraph 6 “To make this Decision comprehensive, I have carefully read all the documents”.
  3.  The next paragraph usually records simply that there was oral evidence “consistent with the assertions in the application”. The paragraph usually numbered 8, immediately preceding the Gondolia paragraph, usually reads as follows or something very similar:
“I have outlined the evidential elements of the evidence adduced on behalf of the Appellant which are relevant to the fair disposal of this appeal. I have taken into account all of the documentary and oral evidence in making up my mind on factual issues. To avoid repetition, I shall refer to some evidence in my deliberations below.”
  1.  In the light of the preceding discussion it is clear that this assertion is unfulfilled. In most cases, none of the “evidential elements of the evidence” have been outlined, nor are they going to be, whether or not they are “relevant to the fair disposal of” the appeal. Not merely is repetition avoided: there is nothing capable of being the subject of repetition.
  2.  By the end of the paragraph on “dispositive” reasons the initial standard paragraphs have finished. Allowing more than half a page for headings and so on, the determination is at the beginning of page 3, and at about paragraph 12. This is the point where there are, in most (but not all) the decisions, a few references to a few of the facts, and to one or two matters that occurred at the hearing. Usually the important references occupy less than a page, often much less. Sometimes there is a supplement of irrelevant matters: in one case, where the sponsor’s nationality was not seriously in dispute (Wang: IA/32046/2015), the Judge took it upon himself to find as a fact that the sponsor was a British national because although he did not produce his passport he recited what he said was the number on it. Sometimes the supplementary observations are ill-judged: in the case of EDO and others (HU/01882/2015), the Judge observes at some length that he criticised the Presenting Officer, apparently for taking the point that the appellant had been an overstayer for about 14 years before he was arrested for fighting; then on another issue in the same case he writes that he “must admire” the Presenting Officer, “who should not be condemned for suspecting the Appellants’ credibility”; a similar observation in another case is cited at para 26 above.
  3.  After these references to the hearing, the evidence and the facts, the Judge sets out his observations on the law. Sometimes the observations are concise; sometimes they are relevant; we have considered their accuracy above, and we have also noted that the law relating to deceit is sometimes mentioned when it is not relevant, or omitted when it is relevant. But much of what appears in this part of the decisions is material that simply should not be there; the Judge makes no attempt to tie down as relevant to his decision even those parts of his disquisition that refer to the law. The following is a particularly egregious example, from the case in which the only issue was whether the Secretary of State was permitted in terms of the Refugee Convention to withdraw the appellant’s refugee status ( Shinwari: RP/00104/2016).
“22. In reaching my decision I am fully conscious of the fact that the overriding objective of the judicial function guides that judges in pursuing expedition and efficiency in disposal of cases should sacrifice justice. Thus I am alert to the fact that my Decision does not violate any of the following legal principles applicable in this case and coming from binding precedents. These principles are:-
(a)    [the discussion of Judicial Review set out above]
(b)          One must be cautious in applying the immigration concepts since “the Secretary of State holds all the cards. The Secretary of State drafts the Immigration Rules; the Secretary of State issues IDIs and guidance statements; the Secretary of State authorises the public statements made by his/her officials. – Pokhriyal v SSHD [2013] EWCA Civ 1568, per Jackson LJ.
(c)           Mr Justice Turner who is not known to be an immigration lawyer was handling an immigration case for judicial review. Subsequent to a lucid analysis of the relevant issues covering 81 paragraphs, he announced that “immigration” control should be handled fairly and it should be encouraged when a migrant is good for this nation and its economy – Case No: CO/11203/2011 [2013] EWHC 891 (Admin) (18/04/2013).
  1. To make sure that my decision is totally in accordance with the law I have obeyed the following principles of interpretation in this case:-
(a) if the other party asserts something that the Appellant is guilty of then the Appellant should be able to say that the asserting party must prove that assertion; otherwise the Appellant must not be saddled with the inference. I must seek the forgiveness of Lord Woolf and his supporters for using the Latin tag for this principle; this rule of interpretation is known as contra proferentem. Since this principle of interpretation is for the protection of a vulnerable Appellant I am pleased to have it in my judicial armoury.
(b) the “Golden Rule” of interpretation should be used for the benefit of the Appellant. As predicated in the Bedford case 1921 even the expressed language of the binding statue should be ignored if the interpretation put forward by a particular party leads to an absurd decision – in that case it was held by the old CCA (Criminal Court of Appeal) that the statutory language “on the pavement” could be ignored where a woman was asserting that she was not “on the pavement” and she was standing on the floor of her own flat and tapping on the window to attract the attention of the people who were on the pavement.
  1. Thetest of arguabilityleads to the appeal to the UTT (Upper Tier Tribunal) against the decision taken by a judge in the First Tier Tribunal. Senior trainers with manifest expertise in judicial craft have advised me that “arguability” is a very easy test to meet and permit an appeal. “First you decide you do not like a decision taken by a junior judge and then worry about the permission on the ground of “arguability” because one can always say something is arguable because it is desirable that any defective decision at the lower level is corrected on appeal. Thus the arguability test is “very easy” to meet.
  2. The present Conservative Government did not succeed in abolishing the Human Rights Act 1998 making the Human Rights Convention 1950 devoid of legislative effect. Indeed the Commission established to abolish the ECHR (headed by the senior civil servant Home Office Permanent Secretary) could not give a report which could justify the abolition of the ECHR as it was the main objective of this commission. This commission was very well put together and included in its members Lord Lester who is known to be the father of the Human Rights Convention – obviously Lord Lester was not in favour of the abolition of the Convention. The upshot of this background is that an immigration judge will not be fair to deny the relief available under the Convention if Parliament does not abolish the 1998 Act which brought into force the ECHR in the municipal jurisdiction of the UK.
  3. The Judicial Committee of the House of Lords was the predecessor of the present British Supreme Court. It faced the argument in the case ofPepper v Hart[1993] AC 593 that the record of the speeches of the MPs in the House of Commons was too rambling to allow a person to work out the proper intention of Parliament. However in this case the HL held that judges may refer to Hansard as a guide to interpretation of legislation. Now this is an established principle and the intention of Parliament can be worked out by referring to it. Accordingly referring to the MPs speeches in Parliament I am obliged to note that the Human Rights Convention and the Act bringing it into force (the HR Act 1998) have not been abolished and Parliament does not oblige me to obviate relief under them.”
  4.  In one of the other decisions (Comery: IA/00866/2016) this text is expanded with some memories of a radio interview given by Lord Lester of Herne Hill. In another decision, Wang (IA/32046/2015), the warning said to be derived from Pokhriyal is changed to being applicable to working out the best interests of the child (in fact the consideration is specifically directed by Jackson LJ at to be applicable only and precisely to prohibiting the Secretary of State from seeking “to rely upon extraneous material in order to persuade a court or tribunal to construe the rules more harshly or to resolve an ambiguity in the Government’s favour”; none of the decisions under appeal involves any detailed or contested interpretation of the wording of the rules). In another decision, Khattab (HU/13552/2015), there is a paragraph containing an anecdotal reference to an apparently extrajudicial observation of Lawton LJ cited (so far as we understand it) as investing the First-tier Tribunal with inherent power to exercise a discretion to allow appeals. Nearly all the decisions contain some material of this sort. The passage set out above, not one word of which appears to be relevant to the case in hand, occupies about a third of the entire text of the decision.
  5.  There are two other matters to which we should refer. The first is that, as will have been apparent from some of the passages we have quoted; it does not look as though any attempt has been made to check the decisions for grammatical or linguistic error. The phrase “the evidential elements of the evidence” is in a standard paragraph. It ought not to have survived being in one draft. The second factor is that as well as the principal issue we have to determine, that is to say whether the determinations display error of law, there are allegations of unreasonable and inappropriate conduct by the judge during the hearing. It is very telling that one such allegation is made by a representative who won his case (Khattab: HU/13552/2015), and so did not need to complain: he has no axe to grind. He wrote a letter to the President of the First-tier Tribunal. With the consent of Mr Wilding we gave our permission for its material parts to be introduced into the hearing as, essentially, a late Rule 24 response to the Secretary of State’s grounds of appeal. As so amended, it reads as follows:-
“Rule 24 Response
  1.  All grounds of appeal raised by the Respondent are conceded.
  2.  In addition, it is submitted that there was procedural unfairness/irregularity on the following basis:
  3. a) It was extremely difficult for the participants in the hearing (including the court interpreter) to understand what IJ Majid was saying, which caused significant confusion on numerous occasions.
  4. b) His comments and questions were of tangential relevance to the case and it was difficult for the witness and legal representative to grasp the points he was trying to make.
  5. c) He became angry with both witnesses and legal representative as a result of the strained communication and frequent misunderstandings.
  6. d) He was unwilling and/or unable to hear legal submissions.
I would go so far as to suggest that the nature of the proceedings before IJ Majid were so shambolic as to bring the Tribunal into disrepute and undermine public confidence in an effective judicial system.”
  1.  Another difficulty during the course of the hearing arose in Stephen OA/07779/2015, and is considered below. In that case, we find that the Secretary of State’s grounds are made out. In the other case, all we need to do is record that the points raised by Mr Moran caused us serious concern, particularly as they appear to be endorsed by the note made by the Presenting Officer. We do not need to reach a view on them; we hope that no party to an appeal will ever feel it right to make such allegations again.
CONCLUSIONS
  1.  It seems to us that the complaints made about Judge Majid’s decisions are entirely well-founded. Nobody reading them could detect how the judge reached the conclusion he did, acting within the law and applying the relevant substantive law to the facts as found. That is partly because the law and the facts are never the subject of any detailed reference, disputes on the facts are not identified, and there are next to no findings of relevant fact; more seriously it is because the Judge’s statements in his decisions, either by direct assertion or by disquisition on the irrelevant, give real reason to suppose that he is not even trying to act within the law and apply the relevant substantive law to the facts as found.
  2.  We regard the body of his work that we have examined in the course of these appeals as wholly failing to meet the standards that are demanded by the office of a judge and expected by the parties. As a result, every one of the decisions under appeal shows error of law, in most cases serious error, in most cases multiple serious errors. Whether the decisions are looked at together or separately, they show that nobody should assume that Judge Majid has an adequate knowledge of the law or of his task as a judge. If his decisions continue to have the features we have identified in the foregoing examination, they are clearly open to criticism.
  3.  We turn now to our individual examination of the appeals before us.”