A 15-year-old Afghan arrived in the United Kingdom in January 2009, claimed asylum and was granted discretionary limited leave to enter. His application for asylum was subsequently refused and his appeal dismissed. In May 2012 he was convicted of assaulting his wife, a British citizen, occasioning actual bodily harm: he was sentenced to 21 months detention and in June 2013, the Secretary of State decided to deport him. He appealed and in August 2013 the First-tier Tribunal dismissed his appeal on all grounds. He appealed further to the Upper Tribunal (Immigration and Asylum Chamber) and the most recent judgment is reported as AAN (Veil) Afghanistan  UKUT 102 (IAC).
So what has any of this got to do with “law and religion”? Read on…
The cornerstone of AN’s case was that he was at risk should he be returned as a result of the marriage of his older sister in Afghanistan Before the FtT, evidence had been given by two witnesses: AN’s younger sister, “AE”, and her spouse, “JE”. AE appeared in a niqab veil and the FtT expressed doubts about AE’s identity:
“She appeared before us fully veiled, but asserted that she was the person whose photograph appears in [a visa document] …. Her evidence is that she is also the person appearing in the Marriage Certificate….. We did not see the original of either document, but, because the witness was veiled, we cannot make any judgment as to whether either of those photographs bear[sic] any resemblance to the person in front of us” [quoted at para 5]
In paragraph 28 of its determination the FtT concluded that “the appellant has not proved, even to the lower standard, that the witness A is one and the same person as his younger sister” and rejected his asylum, human rights and humanitarian protection claims in their entirety [para 5].
The Upper Tribunal pointed out that though AE’s evidence was, self-evidently, of substantial importance to AN’s case, the FtT made no considered assessment of her evidence:
“While the FtT made clear adverse credibility findings in relation to the appellant, it failed to make any such findings as regards AE and JE, who were important witnesses. Furthermore, the FtT engaged in an exercise of attempting to compare AE’s veiled visage with two photographic images. We consider that there are combined elements of insufficient findings and inadequate reasoning in paragraphs  –  of the Determination, which contain key passages assembled under the heading “Our Reasons and Decision”. These failings per se vitiate the Determination of the FtT” [para 6].
“(a) At the hearing, the FtT did not express any concern about the veiled attire of the witness. In particular, there was no hint that this presentation might influence the FtT’s assessment of the evidence of this witness and its ensuing findings.
(b) The FtT made no enquiries of the Appellant’s counsel or the witness about the issue of attire.
(c) In particular, no attempt was made to establish whether the witness might testify without her veil. Nor was any consideration given to the adoption of a mechanism such as the witness removing her veil, partially or fully, in appropriate conditions, or permitting her to be screened in some way or receiving her evidence before a limited audience” [para 7].
The Upper Tribunal concluded that those failures “rendered the hearing before the FtT procedurally unfair” [para 8]. Moreover, the UT rejected the argument that, viewing the Determination as a whole, the procedural irregularities were insufficient to give rise to a successful appeal as they made no real difference to the outcome, adopting the view of Bingham LJ in R v Chief Constable of Thames Valley Police, ex parte Cotton  WL 753309 at 16 that the test was whether the first instance decision might have been different had the irregularity concerned been avoided [para 9].
In November 2006 the President of the Asylum and Immigration Tribunal, Hodge J, had given guidance was on the wearing of a veil by a party’s representative as follows:
“Immigration Judges must exercise discretion on a case by case basis where a representative wishes to wear a veil. The representative in the recent case has appeared veiled previously at AIT hearings without difficulties. It is important to be sensitive in such cases. The presumption is that if a representative before an AIT wishes to wear a veil, has the agreement of his or her client and can be heard reasonably clearly by all parties to the proceedings, then the representative should be allowed to do so.”
The UT noted that “the sentiments expressed in this latter passage are clearly capable of extending to veiled parties and witnesses” [para 10].
Similarly, the Equal Treatment Advisory Committee of the Judicial Studies Board had issued guidance in April 2007 which the Chairman of the Committee, Mrs Justice Cox, had summarised as follows:
“At the heart of our guidance is the principle that each situation should be considered individually in order to find the best solution in each case. We respect the right for Muslim women to choose to wear the Niqaab as part of their religious beliefs, although the interests of justice remain paramount. If a person’s face is almost fully covered a Judge may have to consider if any steps are required to ensure effective participation and a fair hearing – both for the woman wearing a Niqaab and for other parties in the proceedings. This is not an issue that lends itself to a prescriptive approach – we have drawn on a wealth of cases that demonstrate that and we have drawn up guidance for different court personnel and parties” [quoted at para 11].
The UT also noted the accommodation made by Macur J for a niqab-wearing petitioner in SL v MJ  EWHC 3743 (Fam), the recent ruling of HHJ Peter Murphy in D(R), R v  EW Misc 13 (CC) and the fact that Article 6 ECHR recognises explicitly the permissibility of some encroachment on a fully public hearing “… to the extent strictly necessary in the opinion of the Court in special circumstances where publicity would prejudice the interests of justice”.
“In an increasingly multi-ethnical [sic] and culturally diverse society, we would emphasise that issues concerning attire and symbols motivated by religious belief and conviction must be handled by all judicial bodies with great tact and sensitivity. This will serve the twin goals of promoting fairness and avoiding insult or offence. The exercise to be carried out will not infrequently involve the striking of delicate balances. Tribunals should be considerate and respectful in their approach. They should also be resourceful and imaginative in their quest to explore and discover solutions. Simple measures such as limited screening or minimising the courtroom audience – which could extend to briefly excluding the Appellant, with consent – should be considered. Evidence by video link, while another possible compromise, should not be adopted as a solution without first considering all relevant practicalities and the factor of delay. Tribunals should be particularly careful to point out, in cases where it is appropriate to do so, that the maintenance of attire of this kind might impair the panel’s ability to evaluate the reliability and credibility of the evidence of the party or witness concerned and could, in consequence, have adverse consequences for the appellant. Where issues of this kind arise, a Tribunal’s experience, expertise, common sense, pragmatism and sense of fairness will be invaluable tools” [para 20].
The UT remitted the case to a differently-constituted FtT for rehearing with no findings of fact preserved.
Comment: In an otherwise fairly straight piece of reporting, the Daily Mail quoted Dr David Green, director of the Civitas think-tank, to the effect that “There seems to be a worrying trend towards allowing people to wear the veil in court, which is not upheld by any human rights law”. His view of Article 9 ECHR is obviously very different from mine.