Upper Tribunal (Immigration and asylum chamber), 2020-02-27, [2020] UKUT 88 (IAC) (Nimo (appeals: duty of disclosure))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Mr C M G Ockelton, Vice President |
| Status | Reported |
| Date | 27 February 2020 |
| Published date | 16 March 2020 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | appeals: duty of disclosure |
| Hearing Date | 29 January 2020 |
| Appeal Number | [2020] UKUT 88 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Nimo (appeals: duty of disclosure) [2020] UKUT 00088 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 29 January 2020 |
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Before
THE HON. MR JUSTICE LANE, PRESIDENT
MR C.M.G. OCKELTON, VICE PRESIDENT
Between
CHARLES NIMO
(ANONYMITY ORDER NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms M Malhotra, Counsel, instructed by Adukus Solicitors
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer
(1) In an immigration appeal, the Secretary of State’s duty of disclosure is not knowingly to mislead: CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 0059, citing R v SSHD ex parte Kerrouche No 1 [1997] Imm AR 610.
(2) The Upper Tribunal was wrong to hold in Miah (interviewer’s comments; disclosure; fairness) [2014] UKUT 515 that, in every appeal involving an alleged marriage of convenience, the interviewer’s comments in the Secretary of State’s form ICD.4605 must be disclosed to the appellant and the Tribunal. No such general requirement is imposed by the respondent’s duty of disclosure or by rule 24 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.
DECISION AND REASONS
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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 exercising treaty rights in the United Kingdom. For the purposes of the Regulations (and the underlying Directive), a spouse is not entitled to be treated as a family member if he or she is a party to a marriage of convenience.
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Having undertaken separate interviews with the appellant and his wife, the respondent decided that they were in a marriage of convenience and so refused to issue the appellant with a residence card.
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The appellant appealed against that decision to the First-tier Tribunal which, following a hearing in Newport on 4 June 2019, dismissed his appeal.
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The judge had before him the verbatim records of the interviews with the appellant and his spouse. The judge heard oral evidence from them. In his decision, the judge placed no weight on certain discrepancies given by the appellant and his spouse at their respective interviews, concerning their everyday life together. The judge did, however, consider it highly significant that the appellant “knew nothing about his wife being out of the country for a period of a week, let alone which other country she may have gone to and for what reason” (paragraph 18). The judge found that the respondent had discharged the legal burden of proof, the appellant having failed to provide an innocent explanation. The judge concluded that the marriage had been properly shown by the respondent to be one of convenience. He dismissed the appellant’s appeal.
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Although the judge had the record of interviews, which had also been supplied to the appellant in advance of the hearing, he did not have a document known as ICD.4605. This was the interview summary sheet, compiled by an official of the respondent who undertook the interviews, which included a section headed “recommendation – genuine/marriage of convenience?” together with evidence to support the recommendation.
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There is nothing to indicate that the appellant, his solicitors or counsel who attended the First-tier Tribunal hearing asked the respondent for a copy of ICD.4605. Nor was anything said about this document at the hearing.
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In the grounds which accompanied the appellant’s application for permission to appeal to the Upper Tribunal, we find the following:
“The appellant’s application for a residence card as a spouse of an EEA National was refused on 5 April 2019 due to alleged inconsistencies in their responses at the marriage interview. In the interest of fairness, the appellant should have been alerted by the elements of the case against him (sic).
However, the document containing the interviewer’s comments – form ICD.4605 which should have been disclosed was not. We refer to the case of Miah (interviewer’s comments: disclosure: fairness [2014] UKUT 00515 (IAC). In fairness to the appellant, the hearing should have been adjourned to enable him and his spouse specifically [to] deal with these matters in their witness statements.
Therefore, the FtT Judge’s decision to dismiss the appellant’s appeal contained an error of law.”
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Permission to appeal to the Upper Tribunal was granted by the First-tier Tribunal on 20 August 2019. The granting judge’s decision contains the following:-
“3. Disclosure is described at [22] of Miah as being dictated by the right to a fair hearing. Given this, I am driven to conclude that the grounds are arguable, it being for the Upper Tribunal to determine whether the fairness point is nonetheless answered by the appellant apparently never having raised the issue before. ”
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Pursuant to the Upper Tribunal’s directions, the parties filed and served skeleton arguments. We also heard oral submissions from Ms Malhotra and Mr Melvin. The respondent’s skeleton argument was drafted by Mr Melvin’s colleague, Mr Jarvis.
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In Miah, the Upper Tribunal held that form ICD.4605 must be disclosed as a matter of course, in order to afford an appellant a right to a fair hearing.
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The Upper Tribunal summarised the two questions raised in the case as follows:-
“2. 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.
3. 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.”
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At paragraph 9, the Upper Tribunal cited from the speech of Lord Mustill in R v Secretary of State for the Home Department ex-parte Doody [1994] [1 AC 531], in which it was stated that where an Act of Parliament confers an administrative power, there is a presumption that it will be exercised in a manner which is fair in all the circumstances. Standards of fairness are not immutable but will very often require a person who may be adversely affected by the decision to have an opportunity to make representations, either before the decision is taken with a view to producing a favourable result, or after it is taken, with a view to procuring its modification, or both. Since worthwhile representations cannot be made without knowing what factors may weigh against the person’s interests, fairness will often require the person to be informed of the gist of the case he has to answer.
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The Upper Tribunal also cited R v Secretary of State for the Home Department ex-parte Fayed [1996] EWCA Civ 946. This involved a judicial review by Mr Fayed of the Secretary of State’s decision to refuse to grant him naturalisation as a British citizen. The Upper Tribunal noted, in particular, the observation of Phillips LJ (as he then was) that the duty of disclosure is calculated to ensure that the process by which the minister reaches his decision is fair. This enables the party affected to address the matters which are significant and therefore helps to ensure the Minister reaches his decision having regard to all the relevant material (p.253).
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Having observed that finding a person is a party to a marriage of convenience “will be a significant blot on the person’s history and can operate to his detriment in the future”, the Upper Tribunal said:-
“13. These features of the context point decisively to the proposition that the affected person must be alerted to the essential elements of the case against him. This places the spotlight firmly on the pre-decision interview which, it would appear, is an established part of the process in cases of this nature. The interview is the vehicle through which this discrete duty of disclosure will, in practice, be typically,...
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