Mahmoud Ahmed Abdel-Samia Elsakhawy (Anonymity Direction Not Made) v The Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Jackson,Upper Tribunal |
| Judgment Date | 17 November 2017 |
| Neutral Citation | [2018] UKUT 86 (IAC) |
| Date | 17 November 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2018] UKUT 00086 (IAC)
THE HON. Mr Justice Lane, PRESIDENT
UPPER TRIBUNAL JUDGE Jackson
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Elsakhawy (immigration officers: PACE)
1. The respondent's instructions and guidance to immigration officers correctly reflect the operation of sections 66 and 67 of the Police and Criminal Evidence Act 1984 (PACE) and of the Immigration (PACE Codes of Practice) Direction 2013, in drawing a distinction between administrative enquiries and formal criminal enquiries. The fact that immigration officers have powers of investigation, administrative arrest and criminal arrest does not require them to follow the PACE codes of practice concerning the giving of a “criminal” caution, when questioning a person whom they reasonably suspect of entering into a marriage of convenience, in circumstances where the investigation is merely into whether an administrative breach has occurred.
2. Section 78 of PACE, which gives a criminal court power to refuse to allow evidence which, if admitted, would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it, has little to say about the task facing a Tribunal, in civil proceedings under the EEA Regulations.
For the Appellant: Ms J E Norman, instructed by Sterling Law Associates
For the Respondent: Ms S BroadfootQC, instructed by the Government Legal Department
This is the decision of the Tribunal, to which both members have contributed. The appellant appeals against the decision of First-tier Tribunal Judge Millar promulgated on 31 March 2016, in which the appellant's appeal against the decision to give directions for his removal under section 10 of the Immigration and Asylum Act 1999 on the basis of abuse of rights under regulation 21B(2) of the Immigration (European Economic Area) Regulations 2006 (the “EEA Regulations”) dated 27 February 2015 was dismissed.
The appellant is a national of Egypt, born on 13 January 1987, who came to the United Kingdom briefly as a visitor in 2011 and entered again with entry clearance as a visitor in early 2012. Save for a brief visit to Egypt, he has remained in the United Kingdom since 2012, being granted an EEA Residence Card as the family member of an EEA national (Ewelina Wrzesniewska, whom he married on 28 March 2013) on 15 January 2014.
On 27 February 2015, the appellant was encountered by Immigration Officers at Denzil Road (who attended the premises to investigate the marriage of Mr Osaa Said Fetouh Hefnawy, an Egyptian national also married to a Polish national), which led to respondent's decision.
The respondent set removal directions for the appellant under section 10 of the 1999 Act on the basis that his marriage to Ewelina Wrzesniewska (his “wife”) was a sham.
The appellant appealed the respondent's decision on the basis that the appellant did not enter into a marriage of convenience and it was not for him to prove that he did not, the burden of proof being on the respondent who has failed to give adequate reasons for the decision made. The decision was further appealed on the basis that the decision was in breach of the rights of the appellant and his wife under the Community Treaties and in breach of Article 8 of the European Convention on Human Rights.
Although not forming part of the written grounds of appeal, an issue raised by the appellant before the First-tier Tribunal was the admissibility of evidence (or at least the weight to be attached to such evidence) obtained during the questioning of the appellant on 27 February 2015 on the basis of whether or not the questioning was properly conducted in accordance with the Immigration (PACE Codes of Practice) Direction 2013 (“PACE”) (or whether it needed to be so).
Judge Millar dismissed the appeal in a decision promulgated on 31 March 2016 on all grounds. Judge Millar found that the respondent had reasonable grounds to suspect a sham marriage and it was for the appellant to rebut those allegations and he did not do so on the evidence before the First-tier Tribunal.
Permission to appeal was sought on the basis that Judge Millar had failed to deal with the appellant's submissions on PACE; failed to give adequate reasons; failed to apply the correct test for a marriage of convenience and made various errors of fact. Permission to appeal was granted by Judge Lambert on 23 August 2016 on all grounds.
In a decision promulgated on 7 October 2016 (attached as the first Appendix to this decision), Upper Tribunal Judge Rimington found an error of law in Judge Millar's determination, further to which directions were issued on various dates to the parties for this re-making of the decision.
Regulation 21B of the EEA Regulations provides, so far as relevant to this appeal:
(1) The abuse of a right to reside includes –
(a) engaging in conduct which appears to be intended to circumvent the requirement to be a qualified person;
(b) …
(c) entering, attempting to enter or assisting another person to enter or attempt to enter, a marriage or civil partnership of convenience;
(d) fraudulently obtaining or attempting to obtain, or assisting another to obtain or attempt to obtain, a right to reside.
A marriage of convenience is defined in a Council Resolution of the Council of the European Union dated 4 December 1997 and has been approved repeatedly by the domestic courts. A marriage of convenience is:
“a marriage concluded between a national of a member state or a third-country national legally resident in a member state and a third-country national, with the sole aim of circumventing the rules on entry and residence of third-country nationals and obtaining for the third-country national a residence permit or authority to reside in a Member State.”
The legal burden of proof of a marriage of convenience is on the respondent, however the evidential burden shifts to the appellant once the respondent evidences reasonable suspicion of a marriage of convenience: Papajorgji (EEA spouse – marriage of convenience) Greece [2012] UKUT 00038 (IAC) and Rosa v Secretary of State for the Home Department [2016] 1 WLR 1206.
In his written statements signed and dated 20 September 2017 and 2 October 2017, the appellant set out his background and details of how he met his wife and how their relationship started. He stated that they began living together after their Islamic marriage on 28 March 2013.
The appellant's wife went to visit her family in Poland for three weeks in February 2015 as her mother was sick. The appellant could not travel with her as he did not have any annual leave remaining and during that time he stayed with a friend for company. It was at that friend's address that Immigration Officers visited on 27 February 2015. The appellant described his experience of that visit, in particular stating that he was treated in a very rude manner; that he requested an interpreter but was not offered one; that he asked to call his lawyer but was not permitted to do so and that he was questioned when he had not even properly woken up. He also disputed a number of points of the record from the interview, in particular that he gave his full address in New Eltham and it was only the postcode that he could not remember.
The appellant went on to describe what had happened since the respondent's decision, the impact it has had on his relationship and on his life more generally. He stated that his relationship with his wife started breaking down in October 2015 but that his wife was still prepared to support him in his appeal up until the adjournment in January 2016 when she said she could not handle the pressure any more. The appellant's wife refuses to communicate with him until his immigration status is resolved, fearing for her own future in the United Kingdom.
In the second witness statement, the appellant responded in detail to the written evidence of IO Hale and Mr Toleman. In particular, the appellant did not recall being cautioned at any point by Immigration officers; he never claimed to be on holiday from Egypt; he did not willingly show IO Hale texts on his phone and that his wife's new number was stored under the contact “Ewelina Lovely#”. The appellant stated that they called and texted each other as well as using Whatsapp and Viber to stay in touch but records of contact were lost when his phone broke about 2 years ago. The appellant was not asked to contact his wife or show any further evidence of contact with her.
In relation to a suitcase found at Denzil Road during the enforcement visit by the respondent's immigration officers, the appellant stated that it had been there for about six months and left with his friend because the appellant had used it to bring back items from Egypt for his friend. The appellant's documents were in a small bag within the suitcase which he kept with him when staying with his friend because he was moving address at the time and wanted to keep them safe.
In relation to his wife's travel movements, the appellant stated that she travelled to and from Poland in October 2014, February 2015 and attended a wedding in May 2014 in Poland. She has been continuously living in the United Kingdom.
The appellant could not explain why his wife's brother-in-law referred in his marriage interview to his wife coming to visit her sister and brother-in-law in the United Kingdom with her baby and noted discrepancies within that marriage interview. Further, the appellant did not recognise the Facebook page referred to by the respondent nor all of...
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