What can you do if the judge hearing your case is apparently asleep, or appears not to be paying attention to what is being said at the hearing?
In KD (Inattentive Judges) Afghanistan [2010] UKUT 261 (IAC) (30 July 2010) the Appellant KD appealed against the First Tier Tribunal's decision to dismiss his appeal on the basis that the Immigration Judge had fallen asleep in Court.
KD, who is 69 years old and has had a mental disability since he was born, was appealing against an Entry Clearance Officer's decision to refuse his application to come to the UK where his nephew and his brother could look after him.
The Immigration Judge was invited to comment on the allegation that he had fallen asleep. He said that he was “dumbfounded” by the claim and that there was no truth in it.
The Upper Tribunal was provided with evidence as to the judge's demeanour from KD's lawyer who had represented him at the hearing. That evidence was not challenged by the Home Office Presenting Officer.
The Upper Tribunal's Immigration and Asylum Chamber considered that the Immigration Judge (identified tactfully simply as Immigration Judge “D”) had erred in law.
The Tribunal concluded that it was in fact unlikely that the judge had actually fallen asleep during the hearing – but that that in itself did not matter. It referred to the Court of Appeal's judgment in Stansbury v Datapulse plc [2004] ICR 523, which indicated that a tribunal had to be attentive and to be seen to be attentive when it was hearing a case. Failing to do this was comparable to being biased, or to giving the appearance of bias.
The judgment in Stansbury v Datapulse made it clear that if a judge is being inattentive the right course is for a lawyer to say so at the hearing. However the Court of Appeal noted:
"It is always desirable that a point on the behaviour of the employment tribunal be raised at the employment tribunal in the course of the hearing, but it is unrealistic not to recognise the difficulty, even for legal representatives, in raising with the employment tribunal a complaint about the behaviour of an employment tribunal member who, if the complaint is not upheld, may yet be part of the employment tribunal deciding the case.'
Precisely. Immigration hearings tend to end with the Immigration Judge saying that his or her determination is “reserved”, which means that the parties will find out who won a few weeks after the hearing when the decision is delivered by post.
In these circumstances it would be either a brave or - some people would say - a reckless lawyer who told the judge that he or she had been asleep in court. Such a remark might well have an effect on the decision the judge had yet to reach.
The Upper Tribunal concluded that the Immigration Judge had failed to provide a fair hearing. This was an error of law and the Appellant was entitled to the Upper Tribunal's consideration of his case, which it proceeded to allow.