Charles Nimo v The Secretary of State for the Hoe Department

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.

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.

The appellant appealed against that decision to the First-tier Tribunal which, following a hearing in Newport on 4 June 2019, dismissed his appeal.

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.

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.

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.

In the grounds which accompanied the appellant’s application for permission to appeal to the Upper Tribunal, we find the following:

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:-

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.

In Miah , the U pper 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.

The Upper Tribunal summarised the two questions raised in the case as follows:-

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.

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).

Having observed that finding a person is a party to a marriage of convenience “will be a significant blot on the pers on’s history and can operate to his detriment in the future”, the Upper Tribunal said:-

Miah was an appeal to the Upper Tribunal by the Secretary of State, following the First-tier Tribunal’s decision to allow the appeal of the person who was said to be party to a marriage of convenience. It appears that the appeal had been allowed because 4CV 4.605 had been disclosed to the Secretary of State’s decision maker. The Upper Tribunal was, understandably, not disposed to regard this as a constituting an impermissible action, such as to entitle the other party to succeed. It would, frankly, be bizarre if, within any organisation, an official was precluded from making a recommendation to another (usually higher) official, who is tasked with the duty of making the decision in the case.

The Upper Tribunal put the matter in the following way:-

The Upper Tribunal in Miah then turned to the second issue. This concerned rule 13 of the Asylum and Immigration Tribunal (Procedure) Rules 2005. So far as relevant, rule 13, provided as follows:-

In October 2014, the 2005 Rules were replaced by the Tribunal Procedural (First-tier Tribunal) (Immigration & Asylu m Chamber) Rules 2014. Rule 24 makes provision, in paragraph (1) to the same effect as old rule 13(1):

In Miah , the Upper Tribunal was in no doubt that the principles of procedural fairness, as articulated in its analysis of the first of the two issues, required rul e 13 to be read so that form ICD .4605 must be disclosed to an appellant:-

It is plain from paragraph 21 of Miah , in which the Upper Tribunal made reference to the duty “to make disclosure (formerly discovery) of all material documents in a party’s possession custody or power” , that the Upper Tribunal considered this duty, or something very like it, applies in i mmigration a ppeals, including EEA appeals. With respect, that is not right. Regrettably, the Upper Tribunal did not have cited to it the relevant authorities, which establish that there is a significant difference between , on the one hand, appeals in the Immigration and Asylum Chambers of the F irst-tier Tribunal and the Upper Tribunal and , on the other, civil litigation as conducted in courts.

The authorities were usefully analysed by the Upper Tribunal in CM (EM country guidance; disclosure (Zimbabwe) CG [2013] UKUT 0059. Although concerned with an asylum appeal, what CM has to say on the issue of disclosure is of general application in this jurisdiction , so far as concerns appeals :-

Accordingly, in placing weight upon rule 13(1)(c) of the 2005 Rules to support its finding that fo rm ICD .4605 must be disclosed as a matter of course, the Upper Tribunal in Miah was starting from the wrong place. The rules and principles relating to civil litigation disclosure do not apply to appeals of the present kind.

As can be seen from paragraphs 10 and 21 of its decision, the Upper Tribunal in Miah appears to have equated judicial review proceedings with those of a statutory immigration appeal. However, these two types of litigation are distinct. There is no legitimate reason to import into immigration appeals the duty of candour, which exists in judicial review.

The basic reason why it is unnecessary and inappropriate to do so is identified in Mr Jarvis’s skeleton argument. We are, here, concerned with an appeal. The F irst-tier Tribunal judge was not undertaking a review of the respondent’s decision, with all the attendant restrictions that flow the judicial review process . The case is not like Fayed , where the claimant received an adverse decision which he wished to challenge but did not know the reasons for that decision and, thus, the case he had to meet. On the contrary, it was an appeal, where the respondent was obliged to say why she had refused the application and where the judge was required to decid e for himself the question whether, on the evidence before him, the respondent had discharged her duty of showing, on the balance of probabilities , that the appellant’s marriage was one of convenience.

Although concerned with an appeal raising human rights issues, what the House of Lords said in Huang v Secretary of State for the Home Department [2007] UKHL 11 makes the distinction in this context between appeal and judicial review plain :-

To put that another way, in an immigration appeal the reasons for the respondent’s decision are merely the starting point for an independent judicial process. Once this point is grasped, it can readily be seen that there is no justification for a rigid requirement on the respo ndent to file and serve from ICD .4605 in marriage of convenience cases. This proposition can be tested by reference to the facts of the instant appeal.

The verbatim records of interview were produced by the respondent pursuant to rule 24(1)(d) of the 2014 Rules. The respondent’s decision of 5 April 2019 made specific reference to the interview. The inconsistencies identified in the decision, arising from the interviews, were expressly articulated in the form of “bullet points”. Details were given in those bullet points of what was said to be inconsistent. For instance (and as the judge emphasised ), the appellant could not recall the last time his wife visited the Netherlands, whereas she said that she had gone to the Hague for a week in October 2018 for friend’s funeral.

Other inconsistencies detailed in the decision, by refence to the interviews , involved the appellant’s knowledge of his wife’s work, her finances, her past life in the Netherlands, and information about his wife’s children. The decision also referred to two photographs of the appellant and his wife, taken in a restaurant, as regards which there was an inconsistency as to who had taken the photograph and whether that person had been dining with the couple.

From the information on the Upper Tribunal’s file, we can see that the respondent was directed by the F irst-tier Tribunal on 7 May 2019 to send copies of the documents disclosed pursuant to rule 24(1)(d) to the appellant , by 4 June 2019. There was no complaint at the hearing that the appellant and those professionally representing had had insufficient time to consider the record of interviews.

As we have already mentioned , form ICD .4605 has been disclosed by the respondent. This followed the grant of permission to appeal to the Upper Tribunal. In it, we can see the caseworker’s recommendation was that the appellant’s marriage was a marriage of convenience. In the following column, headed “Evidence to support recommendation” , the caseworker set out what were considered to be inconsistencies in areas where the appellant did not know information about his wife which he might be expected to know, if his marriage were genuine. With one exception, these correlate precisely with the reasons given in the decision. The exception is that the interviewing caseworker had credibility issues with photographs supplied by the appellant, in addition to those taken in the restaurant.

Since the case before the F irst-tier Tribunal judge was an appeal and not judicial review, the case the appellant had to meet was set out in the respondent’s decision. The reasons given in that decision , and only those, were being relied upon by the respondent in order to resist the appeal and the IC D .4605 was not, either expressly or by implication, “referred to” in the decision or the reasons for it.

We note that rule 24(2) of the 2014 Rules requires the respondent to provide “a statement of whether the respondent opposes the appellant’s case and the grounds for such opposition ” , in circumstances where “the respondent intends to change or add to the grounds or reasons relied upon in the notice or the other documents referred to in paragraph (1)(a) ” . This provides a mechanism for ensuring that, where the respondent’s justification for her decision changes, both the appellant and the T ribunal are made aware of this.

It therefore matters not at all whether form ICD.460 5 contains observations, by reference to the records of interview, that might further support the respondent’s decision concerning the nature of the marriage, but which are not articulated in that decision. There can be no possible unfairness to the appellant in this regard because both he and the F irst-tier tribunal judge are in the same position. Neither will know of those additional observations in ICD.4605. Th ose observations therefore can not play any part in the judge’s decision whether to allow or dismiss the appeal.

Before us, Ms Malhotra submitted that, insofar as the decision followed and reflected the stance of the caseworker who compiled ICD.4605, that document should have been disclosed, as it was part of the decision. We do not agree. A s we have already observed , it is a commonplace of any ministry o r, indeed, any organisation (certainly , one of the size of the Home Office) that several officials will be engaged in the process that leads to a formal decision, such as a decision that gives rise to a right of appeal to the F irst-tier Tribunal . The fact that a decision - maker adopts the recommendations of a colleague does not mean that those recommendations have to be supplied to an appellant and the Tribunal. What matters to the appellant and the Tribunal are the reasons for the decision.

It is, however, necessary to make the following point. The duty not to mislead, as described by the Upper Tribunal in CM , will require the respondent to disclose form ICD.4605, where there is something in it that could materially assist the appellant, but which is not mentioned in the respondent’s decision or in the records of interview. If, for example, the interviewing officer comments that the appellant or spouse appeared to be seriously unwell during the interview, and that this might account for the unsatisfactory answers given, then the respondent is under a duty to disclose. The presenting officer would, in such circumstances, be misleading the Tribunal , if she were to rely on the discrepant or otherwise unsatisfactory answers, without drawing attention to what the interviewer had had to say about the interviewee’s apparent state of health. The possibility that such a piece of information might lie within form ICD.4605 is 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 respondent in respect of all internal communications leading to any decision in the i mmigration field , which may be appealed to the F irst-tier Tribunal .

For these reasons, we respectfully decline to adopt the broad construction of (what is now) rule 24(1)(d), which was adopted by the Upper Tribunal in Miah . In the present case, ICD.4605 was not referred to in the n otice of d ecision or any other document provided to the appellant , giv ing reasons for that decision. Form ICD.4605 was not relied upon by the respondent. The expression “relied upon” in rule 24(1)(d) must mean that the respondent relies upon the unpublished document as part of her case before the F irst-tier Tribunal . For the reasons we have given, the expression cannot properly be construed as referring to any advisory or preparatory document that has led up to the form in which the respondent has articulated the reasons for her decision, as contained in the decision letter.

In the present case, the F irst-tier Tribunal judge gave entirely sustainable reasons for finding that the appellant was party to a marriage of convenience. The appellant and his advisors had advance notice of the record of interview s , which featured in the written decision and reasons. No unfairness was occasioned by the fact that the appellant and the First-tier Tribunal judge did not see form ICD.4605.