Miah (interviewer’s comments: disclosure: fairness)
| Jurisdiction | UK Non-devolved |
| Judge | THE HON. MR JUSTICE MCCLOSKEY |
| Judgment Date | 12 September 2014 |
| Neutral Citation | [2014] UKUT 515 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 12 September 2014 |
[2014] UKUT 515 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
The President, The Hon. Mr Justice McCloskey
Appellant: Mr Smart, Senior Home Office Presenting Officer
Respondent: Mr N Ahmed (of Counsel), instructed by Eurasia Legal Services.
Miah (interviewer's comments: disclosure: fairness)
(i) A decision that a marriage is a marriage of convenience for the purposes of regulation 2(1) of the Immigration (European Economic Area) Regulations 2006 is a matter of some moment. Fairness requires that the affected person must be alerted to the essential elements of the case against him.
(ii) In addition, those involved must be alert to the question of whether, in an unusual or exceptional case, anything further is required in the interests of fairness. There may be difficult, borderline cases in which fairness will require identification of the third party. These do not admit of general guidance or resolution and will have to be addressed on a case by case basis, guided by the overarching requirement of fairness and balancing all interests in play.
(iii) The Secretary of State's decision making process includes a process whereby comments, or opinions, of an interviewing officer are conveyed to the decision maker. In the generality of cases, this practice will not contaminate the fairness of the decision making process. The duty of the decision maker is to approach and consider all of the materials with an open mind and with circumspection. The due discharge of this duty, coupled with the statutory right of appeal, will provide the subject with adequate protection.
(iv) However, the document enshrining the interviewer's comments – Form ICV.4605 – must be disclosed as a matter of course. An appellant's right to a fair hearing dictates this course. If, exceptionally, some legitimate concern about disclosure, for example, the protection of a third party, should arise, this should be proactively brought to the attention of the Tribunal, for a ruling and directions. In this way the principle of independent judicial adjudication will provide adequate safeguards for the appellant. This will also enable mechanisms such as redaction, which in practice one would expect to arise with extreme rarity, to be considered.
By a decision made on behalf of the Secretary of State for the Home Department (the “ Secretary of State”) the Appellant herein, dated 02 July 2013, the application of the Respondent, a national of Bangladesh, aged 44 years, for a right of residence in the capacity of spouse of a EEA national exercising Treaty rights in the United Kingdom was refused. The basis of the refusal was the assessment of the Secretary of State's officials that the marriage under scrutiny was considered to be one of convenience. The Respondent's ensuing appeal to the First-tier Tribunal (the “ FtT”) succeeded. The Secretary of State appeals with permission to this Tribunal.
The main question raised by this appeal is an interesting one, the answer whereto could potentially affect the conduct of interviews in contexts other than that under consideration. It may be summarised thus: is a decision by the Secretary of State under the Immigration (European Economic Area) Regulations 2006 (“ the EEA Regulations”) that a marriage is one of convenience vitiated by procedural unfairness and, thereby, erroneous in law where the decision making process includes comments, or opinions, of the interviewing officer adverse to the subject's case which are conveyed to the decision maker but are withheld from the subject? Thus formulated, this appeal raises a classic question of common law procedural fairness. This is essentially the issue on which the FtT allowed the appeal and upon which permission to appeal was granted.
The subsidiary question raised by this appeal is also of some interest, as it bears on the Secretary of State's duty to the First-tier Tribunal under Rule 13 of the Asylum and Immigration Procedure Rules 2005. It may be framed thus: does the duty under Rule 12 encompass a requirement to disclose Form ICD4605, the “Interview Summary Sheet”, in every case of this nature? The consequences of the new FtT procedural rules are addressed in [20] infra.
For present purposes, it suffices to note that one aspect of the scheme of the Immigration (European Economic Area) Regulations 2006 is to confer a right of residence in the United Kingdom on spouses, if certain conditions are satisfied. Under Regulation 7, a spouse falls within the definition of “family member”. Pursuant to Regulation 11(2), where the spouse is not an EEA national he/she has a right to be admitted to the United Kingdom if married to an EEA national. The spouse thus admitted has the opportunity to pursue acquisition of a permanent right of residence in the United Kingdom in accordance with the provisions of Regulation 15. In the context of the present appeal, one of the key provisions is Regulation 2(1):
“‘Spouse’ does not include ………
(a) A party to a marriage of convenience …..”
The phrase “ marriage of convenience” is not defined. The purpose of this discrete provision is clear: it is designed to prevent abuse of the rights and privileges available under the 2006 Regulations by those who contract sham marriages.
Directive 2004/38/EC , the relevant measure of EU law, regulates the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. Thus it is underpinned by citizenship of the Union and the associated right of free movement. It seeks to promote family unity by facilitating the free movement of family members who are not nationals of a Member State. It creates a right of residence, subject to a series of conditions and qualifications. The Directive balances a variety of aims, including that of avoidance of the imposition of unreasonable burdens on the social assistance system of the host Member State. Notably, marriages of convenience are addressed under the rubric “Abuse of Rights”, in Article 35, which provides:
“ Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measures shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31.”
The topic of marriages of convenience has been considered by the Upper Tribunal in Papajorgji (EEA Spouse – Marriage of Convenience) Greece [2012] UKUT 00038 (IAC). There it was held that there is no initial burden on a claimant to demonstrate that a marriage to an EEA national is not one of convenience. However, there is an evidential burden on the Claimant to address evidence justifying reasonable suspicion that the marriage in question was undertaken for the predominant purpose of securing residence rights.
The mischief of marriages of convenience in the EU is highlighted in the European Commission Handbook addressing this topic. The stated aim of this guidance is to assist national authorities to “ ….. fight abuses of the right to free movement …. addressing the issue of alleged marriages of convenience between EU citizens and non-EU nationals in the context of EU law on free movement of EU citizens.” It contains the following definition, which seems to be harmonious with Article 35 of the Directive:
“ For the purposes of Directive 2004/38/EC, the notion of abuse refers to an artificial contract entered into solely with the purpose of obtaining the right of free movement and residence under EU law which, albeit formally observing the conditions laid down by EU Rules, does not comply with the purpose of those rules.”
In this respect, the new Handbook replicates the earlier Commission guidelines of 2009.
Given the subject matter of this judgment, the section in the Commission's Handbook dealing with investigation techniques is of interest. It describes simultaneous interviews or questionnaires (involving the two parties to the marriage), document and background checks, inspections by relevant authorities and Community-based checks as the main investigation techniques employed throughout the Union. Interestingly, it formulates the threshold for interviewing suspected spouses in the following terms:
“ As any other investigation technique, interviews of suspected spouses should only be launched where national authorities – on the basis of the information available and using the double-lock safeguard mechanism – consider that their serious doubts about the genuineness of the marriage have not been sufficiently dispelled.”
Interviews are considered to be “ the most effective technique” available for verifying whether a spouse has provided non-conflicting, consistent and correct information about the other spouse, their past relationship and future plans. National authorities are encouraged to deploy questionnaires in this process. Notably, the guidance contains the following statement:
“ Contradictions, inconsistencies, lack of detail and implausible statements which are relevant for the decision making should be identified and explicitly put to the interviewed spouses.”
Here one finds clear echoes of the common law principle that decision making processes of this genre must be procedurally fair, reflecting the latin maxim audi alteram partem. The guidance, unsurprisingly, is not prescriptive regarding the necessary level of disclosure to suspects.
In the “Notice of Immigration Decision” [Form ECD.3125], the Respondent...
To continue reading
Request your trial
-
R (on the application of Gazi) v Secretary of State for the Home Department (ETS - Judicial Review) (IJR)
...The FtT will also have to decide whether the recent decisions of this Tribunal in Miah (Interviewer's Comments: Disclosure: Fairness) [2014] UKUT 515 (IAC) and Mushtaq (ECO – procedural fairness)(IJR) [2015] UKUT 224 (IAC) apply. The FtT should also take into account the fundamental princip......
-
R (on the Application of Farhan Aslam) v The Secretary of State for the Home Department
...case against him, including the essential elements of any evidence against him ( Miah (Interviewer's comments: disclosure: fairness) [2014] UKUT 515 (IAC)). In my judgment, there is ample evidence that the Claimant was provided with that opportunity with the knowledge that the interviewers ......
-
The Queen (on the application of Zahir Ahmad) v The Secretary of State for the Home Department
...by providing evidential material to show that the marriage was genuine. 74 The second case relied on by Mr Davison is Miah (interviewer's comments: disclosure: fairness) [2014] UKUT 00515 (IAC). Mr Davison submits that this decision indicates that it is essential that the concerns arising f......
-
R Mohammad Mohibullah v Secretary of State for the Home Department
...and asylum, it has been held that the basic principles of procedural fairness apply to certain decision making contexts: see Miah [2014] UKUT 00515 (IAC) and R (Mushtaq) v Entry Clearance Officer of Islamabad, Pakistan [2015] UKUT 00224 (IAC). If necessary for our decision, we would hold th......