The Council of State ruled on a petition submitted to the Council for Aliens Law Litigation (CALL) by an applicant, A.K., to disqualify judge K.A. from an appeal procedure before the CALL. The appeal concerned a decision by the Commissioner General for Refugees and Stateless Persons (CGRS) issued on 6 August 2024.

The council determined that the request for disqualification was well-founded. The applicant argued that there was a ‘legitimate suspicion’ regarding the judge’s impartiality, as she had previously worked for the CGRS before her appointment as a judge in immigration matters. The council confirmed that impartiality required not only the absence of subjective bias but also sufficient guarantees to exclude any legitimate doubt regarding objectivity. It observed that the mere appearance of partiality could justify disqualification.

Although Article 829(1) of the Judicial Code, which prohibits judges in social and commercial matters from having prior employment with a party, did not apply directly to immigration judges, the council found that previous employment with a party could still raise concerns about objective impartiality. The council noted that the judge in question had worked as an attaché and advisor for the CGRS until her resignation 7 August 2024, and had taken the oath as a judge on 5 September 2024. During her previous employment, she had handled cases involving Afghan asylum seekers and had represented the CGRS at hearings.

The council ruled that the fact that the judge had not represented the CGRS in such hearings since 11 October 2023, except in two specific cases in April 2024, did not negate the fact that she had worked for the CGRS until August 2024 and had been involved in many similar cases. Given that she would be judging a case involving her former employer within three months of leaving her position, the council found that this could reasonably create doubts about her objective impartiality.

The council rejected the argument that her lifetime judicial appointment should automatically prevent disqualification. It also dismissed the claim that no concrete evidence of subjective bias had been presented, emphasizing that the issue at hand was the objective appearance of partiality. The fact that the judge intended to refrain from cases she had previously handled was deemed irrelevant, as the concern was not her personal bias but the general impression of impartiality. Consequently, the council upheld the request for disqualification.