Nimo (Appeals: Duty of Disclosure)
Jurisdiction | UK Non-devolved |
Judge | Mr CMG Ockelton,Lane J |
Judgment Date | 27 February 2020 |
Neutral Citation | [2020] UKUT 88 (IAC) |
Date | 27 February 2020 |
Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2020] UKUT 88 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President) and Mr CMG Ockelton (Vice President)
Ms M Malhotra instructed by Adukus Solicitors, for the Claimant;
Mr T Melvin, Senior Home Office Presenting Officer, for the Secretary of State.
CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59 (IAC)
Huang v Secretary of State for the Home Department; Kashmiri v Secretary of State for the Home Department[2007] UKHL 11; [2007] 2 AC 167; [2007] 2 WLR 581; [2007] 4 All ER 15; [2007] Imm AR 571; [2007] INLR 314
Miah (interviewer's comments: disclosure: fairness) [2014] UKUT 515 (IAC)
R v Secretary of State for the Home Department ex parte Doody; R v Secretary of State for the Home Department ex parte Pierson; R v Secretary of State for the Home Department ex parte Smart; R v Secretary of State for the Home Department ex parte Pegg[1993] UKHL 8; [1994] 1 AC 531; [1993] 3 WLR 154
R v Secretary of State for the Home Department ex parte Fayed [1996] EWCA Civ 946; [1998] 1 WLR 763; [1997] 1 All ER 228; [1997] INLR 137
R v Secretary of State for the Home Department ex parte Kerrouche [1997] EWCA Civ 2263; [1997] Imm AR 610; [1998] INLR 88
Asylum and Immigration Tribunal (Procedure) Rules 2005, rule 13
Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, rule 24
European Union law — family members — spouse of EEA national — alleged marriage of convenience — interview summary sheet — procedure and process — conduct of appeal — duty of disclosure
The Claimant was a citizen of Ghana. He applied for a residence card as a family member on the ground that he was married to a Dutch national, who was exercising treaty rights in the United Kingdom. The Claimant and his wife were interviewed separately. The Secretary of State for the Home Department decided that they were in a marriage of convenience and refused to issue the residence card. For the purposes of the Immigration (European Economic Area) Regulations 2016, a spouse was not entitled to be treated as a family member if he or she was a party to a marriage of convenience. The Claimant appealed.
Although the First-tier Tribunal (“FtT”) Judge had before him the verbatim records of the interviews with the Claimant and his spouse, which had also been supplied to the Claimant, he did not have a document known as form ICD.4605. That document was the interview summary sheet, compiled by the Secretary of State's official who had undertaken the interviews, which included a section headed ‘recommendation — genuine/marriage of convenience?’ together with evidence to support the recommendation. There was nothing to indicate that the Claimant, his solicitors or counsel who attended the FtT hearing asked the Secretary of State for a copy of form ICD.4605. Nor was anything said about that document at the hearing. The FtT dismissed the Claimant's appeal.
The Claimant appealed to the Upper Tribunal (“UT”), relying on the decision in Miah (interviewer's comments: disclosure: fairness)[2014] UKUT 515 (IAC). He submitted that, insofar as the Secretary of State's decision followed and reflected the stance of the caseworker who compiled form ICD.4605, that document should have been disclosed in the interest of fairness, as it was part of the decision.
Held, dismissing the appeal:
(1) In placing weight upon rule 13(1)(c) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 to support its finding that form ICD.4605 had to be disclosed as a matter of course, the UT in Miah was starting from the wrong place. The rules and principles relating to civil litigation disclosure did not apply to appeals of the instant kind: CM (EM country guidance; disclosure) Zimbabwe CG[2013] UKUT 59 (IAC) applied. The UT in Miah appeared to have equated judicial review proceedings with those of a statutory immigration appeal. Those two types of litigation were, however, distinct. There was no legitimate reason to import into immigration appeals the duty of candour, which existed in judicial review (paras 20 and 22 – 23).
(2) The FtT Judge was not undertaking a review of the Secretary of State's decision, with all the attendant restrictions that flowed from the judicial review process. It was an appeal, where the Secretary of State was obliged to say why she had refused the application and where the Judge was required to decide for himself the question whether, on the evidence before him, the Secretary of State had discharged her duty of showing, on the balance of probabilities, that the Claimant's marriage was one of convenience. In an immigration appeal the reasons for the Secretary of State's decision were merely the starting point for an independent judicial process. Once that point was grasped, it could readily be seen that there was no justification for a rigid requirement on the Secretary of State to file and serve form ICD.4605 in marriage of convenience cases (paras 24 – 26).
(3) The case the Claimant had to meet was set out in the Secretary of State's decision. The reasons given in that decision, and only those, were being relied upon by the Secretary of State in order to resist the appeal and the ICD.4605 was not, either expressly or by implication, “referred to” in the decision or the reasons for it. Rule 24(2) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (“the 2014 Rules”) provided a mechanism for ensuring that, where the Secretary of State's justification for her decision changed, both the Claimant and the Tribunal were made aware of that. It therefore did not matter whether form ICD.4605 contained observations, by reference to the records of interview, that might further support the Secretary of State's decision concerning the nature of the marriage, but which were not articulated in that decision. There could be no possible unfairness to the Claimant in that regard because both he and the FtT Judge were in the same position. Neither would know of those additional observations in form ICD.4605. Those observations therefore could not play any part in the Judge's decision whether to allow or dismiss the appeal (paras 31 – 33).
(4) The fact that a decision-maker adopted the recommendations of a colleague did not mean that those recommendations had to be supplied to a claimant and the Tribunal. What mattered were the reasons for the decision. It was, however, necessary to make the following point. The duty not to mislead, as described by the UT in CM, would require the Secretary of State to disclose form ICD.4605, where there was something in it that could materially assist the claimant, but which was not mentioned in the Secretary of State's decision or in the records of interview. The possibility that such a piece of information might lie within form ICD.4605 was not, however, a reason to require its automatic production, any more than there ought, for such a reason, to be a general duty of disclosure on the Secretary of State in respect of all internal communications leading to any decision in the immigration field, which might be appealed to the FtT (paras 34 and 35).
(5) In the instant case, form ICD.4605 was not referred to in any document provided to the Claimant and was not relied upon by the Secretary of State. The expression “relied upon” in rule 24(1)(d) of the 2014 Rules must mean that the Secretary of State relied upon the unpublished document as part of her case before the FtT. The expression could not properly be construed as referring to any advisory or preparatory document that had led up to the form in which the Secretary of State had articulated the reasons for her decision, as contained in the decision letter. The FtT Judge gave entirely sustainable reasons for finding that the Claimant was party to a marriage of convenience. The Claimant and his advisors had advance notice of the record of interviews, which featured in the written decision and reasons. No unfairness was occasioned by the fact that the Claimant and the FtT Judge did not see form ICD.4605 (paras 36 and 37).
The Hon. Mr Justice Lane:
[1] A person who is a family member of an EEA national (as defined in the Immigration (European Economic Area) Regulations 2016) exercising treaty rights in the United Kingdom is entitled to ask the respondent for a residence card, confirming his or her status as a family member. The appellant, a citizen of Ghana, made such an application on the ground that he was married to a Dutch national, who was...
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