The Use Of “Unfair” Evidence In Immigration Cases

29 Mar 2018, 11 mins ago

On 19 March 2018, the decision of the Upper Tribunal in Elsakhawy (immigration officers: PACE) Egypt [2018] UKUT 86 (IAC) was published which considered PACE cautions and the exclusion of ‘unfair’ evidence in immigration cases in an appeal that concerned a marriage of convenience.

The appellant, an Egyptian national, entered the UK with valid Entry Clearance as a visitor in 2011 and early 2012. However, the visa he obtained for the 2012 visit was made using deception as he planned to remain in the UK permanently and as such had gathered sufficient funds to support an extended stay in the UK. The appellant knowing that he had no leave to remain in the UK was advised that his only prospect of staying was to marry a UK or EEA national.  He subsequently remained in the UK in 2012 without valid leave to remain and married a Polish national in March 2013. On 15 January, the appellant was granted an EEA Residence Card as the family member of an EEA national.

On 27 February 2015, Immigration Officers attended a London address to investigate the marriage of another two individuals and encountered the appellant. Having been asked to prove his identity, the appellant was unable to produce his passport and instead provided a driver’s licence that was registered at the property. Due to a number of discrepancies, the Immigration Officer proceeded to question the appellant on the basis that his marriage was a sham. The questioning eventually led to the Secretary of State for the Home Department (“SSHD”) setting removal directions for the appellant under Section 10 of the Immigration and Asylum Act 1999 which provides:

A person may be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer if the person requires leave to enter or remain in the United Kingdom but does not have it.

Regulation 21B of The Immigration (European Economic Area) Regulations 2006 further provides:

“(1) The abuse of a right to reside includes –

(a)    engaging in conduct that appears to circumvent the requirement to be a qualified person;

(b)    [not applicable in this scenario]

(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.”

In cases where the SSHD suspect a person of entering a marriage of convenience, the burden of proof falls on the SSHD and shifts to the appellant once the SSHD is able to evidence a reasonable suspicion.

On 31 March 2016, Judge Millar refused the appellant’s appeal at the First-tier Tribunal on all grounds. Appeal to the Upper Tribunal was allowed on a further issue raised by the appellant at the First-tier Tribunal on the admissibility of evidence obtained by the SSHD during 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”).

Conclusion on Evidence

A number of discrepancies arose between the evidence of the Immigration Offices and the appellant. The SSHD evidence included, but was not to limited to: interview records including that of 27 February 2015; witness statements of the Immigration Officers; evidence that the appellant’s wife had only visited the UK for a total of six days in the past five years; statements of the appellant’s wife’s sister and brother-in-law which suggested his wife was merely visiting the UK with her child and Facebook evidence. On the other hand, the appellant relied on an Islamic marriage certificate, an untranslated marriage certificate from the Egyptian Embassy, joint bank account statements, payslips and a limited number of photographs.

Nevertheless, the Upper Tribunal concluded that the appellant lacked sufficient evidence to rebut the SSHD’s suspicions that the appellant and his wife did not live together in a genuine and subsisting marriage and they had indeed entered into a marriage of convenience. On the balance of probabilities, ‘the marriage was entered into with the sole aim of circumventing the rules on residence for a third country national’ contrary to the definition provided within the Council Resolution of the Council of the European Union dated 4 December 1997. The appellant had also submitted an unsigned statement of his wife and there was no oral testimony provided on the genuineness of his marriage.  

PACE Conclusions

In considering violations of PACE during the visit of 27 February 2015, the Upper Tribunal concluded that the SSHD had discharged the burden of proving that the marriage was one of convenience notwithstanding the evidence arising out of the interview. The question was whether evidence obtained in this way should be excluded from consideration by the SSHD on the basis that the appellant was not cautioned.

Section 145 of the Immigration and Asylum Act 1999 confers immigration powers on the SSHD, which are contained within the Immigration (PACE Codes of Practice) Direction 2013. Schedule 1 of the Direction states the procedure for an “interview under caution to establish an offence or breach”. This includes the provisions of detention, treatment and visual recording of suspect interviews. Paragraph 10 further provides that a person whom there is grounds to suspect an offence must be cautioned before any questioning on arrest or on other occasions before a person is charged or informed they may be prosecuted unless the restriction on drawing adverse interference from silence applies.

The SSHD confirmed that immigration officers were instructed to administer a caution known as the “caution +2” where a person’s status was uncertain in a suspected marriage of convenience in preparation for questioning and if warranted to serve an order – an administrative power of arrest. Further paragraph 17(1) of Schedule 2 to the Immigration Act 1971 allows immigration officers to arrest an immigration offender by exercising a criminal power of arrest.  

On the premise that entering into a marriage of convenience would constitute a criminal offence the Upper Tribunal did not make a distinction between the powers of investigation, administrative arrest and criminal arrest. Therefore, the Upper Tribunal dismissed the appeal on their assessment that the PACE criticisms were substantially exaggerated and the immigration officers did not breach the PACE by failing to give the appellant a criminal caution.


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