Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22339/2015
ia/22343/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 February 2017
On 27 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

Mr BRUNO ALMEIDA DA CRUZ (1st Appellant)
MRS ROSA MARIA HONORIO DE ALMEIDA (2nd Appellant)
(ANONYMITY DIRECTION NOT MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Bellara, Counsel instructed by Western Solicitors
For the Respondent: Ms Brocklesby-Weller, Specialist Appeals Team

DECISION AND REASONS
1. The Appellants appeal on procedural unfairness grounds from the decision of the First-tier Tribunal dismissing their appeals against the decision by the Secretary of State to refuse to issue them with residence cards as the family members of an EEA national exercising treaty rights here. The application was refused as the respondent considered that the first Appellant was a party to a marriage of convenience. The First-tier Tribunal did not make an Anonymity Direction, and I do not consider that the Appellants require anonymity for these proceedings in the Upper Tribunal.
The Reasons for the Grant of Permission to Appeal to the Upper Tribunal
2. On 30 December 2016, Judge Hollingworth granted the Appellants permission to appeal for the following reasons:
(i) The Appellants were unrepresented. The comments by the interviewing officer or officers did not form part of the bundle prepared by the Respondent. The Judge has not referred in his analysis to any such comments.
(ii) The Appellants were entitled to disclosure of such document in addition to the interview records. In the circumstances an arguable error of law has arisen in that the full scope of the available evidence was not before the judge or analysed by the Judge in addition to the Appellants not having received disclosure of the document in question.
(iii) It was argued that the Judge should have considered the full ambit of the available evidence in existence before deciding whether to proceed with the hearing.
Relevant Background Facts
3. The first Appellant, Mr Bruno Almeida Da Cruz is the son of the second Appellant, Mrs Honoria De Almeida. Both of them are nationals of Brazil.
4. On 14 November 2014, they applied for Residence Cards with the assistance of legal representatives by the name of "London Help For You". The first Appellant applied as the spouse of an EEA national by the name of Kamila Anna Danielewicz. The second Appellant applied as a direct family member of her son's EEA national wife.
5. The first Appellant and his wife were invited to attend a marriage interview in Liverpool on 24 April 2015. They were interviewed separately. The Sponsor was interviewed first in Polish and then the first Appellant was interviewed in English.
6. At the end of the interview, the interviewer prepared an interview summary sheet. His recommendation was that this was a marriage of convenience. In a series of bullet points, he gave his reasons for reaching this conclusion. The bullet point topics were EEA, applicant, visa, periods of separation, tattoos, proposal, wedding and living together.
7. At the end of the list of bullet points, the interviewer said as follows:
"From the information gained at interview I believe this to be a marriage of convenience. I have outlined the information above."
8. The caseworker who had made the interview referral proceeded to prepare a refusal letter dated 5 June 2015. In view of that there were a large number of inconsistent and conflicting answers given at the marriage interview, it was considered that the first Appellant's marriage to his EEA national spouse was one of convenience.
9. There were discrepancies in the answers given by him and his Sponsor when they were questioned about their relationship histories and their day-to-day lives together. There were inconsistencies in the answers in significant aspect of their marriage and development of their relationship. It was considered that, if they were in a genuine and subsisting relationship, their answers would correspond so as to present a unified picture of their marriage.
10. The caseworker then proceeded to list the same bullet points, together with the same topic headings, as were contained in the interview summary sheet. The caseworker adopted the contents of the interview summary sheet word for word, including the misspelling of the word "tattoos": the interviewer had inserted a grammatically inappropriate apostrophe at the end of this word. The only difference I have noted is that instead of the topic heading of "EEA" in the interview summary sheet, the corresponding topic heading in the refusal letter is "EEA national Sponsor".
11. At the end of the list of bullet points, the caseworker said that, from the information gained at interview, he believed this to be a marriage of convenience.
12. The second Appellant was refused in line with the first Appellant. She had failed to provide any evidence to show that she was related and dependent upon her EEA national Sponsor as the marriage between her son and the EEA national Sponsor was deemed to be one of convenience.
13. The Respondent's bundle for the subsequent appeal hearing included the interview record sheet, but not the interview summary sheet.
14. The Appellant's Grounds of Appeal were settled by their representatives. The first Appellant and the Sponsor refused to accept that they had a marriage of convenience. The answers given in the Refusal letter did not reflect their real relationship, and they would be happy to provide further evidence and confirmation of that.
The Hearing Before, and the Decision of, the First-tier Tribunal
15. The appeals of the Appellants came before Judge C M Philips sitting at Taylor House in the First-tier Tribunal on 27 July 2016. The Appellants were unrepresented.
16. In his subsequent decision, the Judge noted at paragraph [7] that the Appellant's representatives had written to the Tribunal by letter dated 19 February 2016 to advise them that they were no longer representing the Appellants. At paragraph [9] he noted that the Appellants were ready to proceed without a representative, and that the correct interview notes had been provided to them prior to the hearing.
17. In his oral evidence, the first Appellant confirmed that he had read the Reasons for Refusal and so he knew that his answers and those of the Sponsor did not match up. He said that the discrepancy about their last period of separation was due to stress, nerves and not thinking properly. All of the discrepancies were for the same reason. He acknowledged that what was recorded was correct and that different answers were given by each of them to the same questions.
18. In her evidence, the Sponsor said that some of the questions and answers in her interview had not been correctly recorded. She said she had told the lawyer this. The lawyer advised her to appeal, go to court and prove the relationship.
19. The Judge's findings of fact are set out at paragraph [41] onwards. At paragraph [53], he found that the first Appellant and the Sponsor had failed to provide satisfactory, innocent explanations not only for the inconsistent evidence in the marriage interview, but also for the inconsistent evidence at the hearing.
20. In the absence of a satisfactory, innocent explanation, he attached weight to all of the inconsistencies set out in the Refusal letter, noting that these extended to periods of separation, the proposal, the wedding and the date and address where they had commenced living together.
The Hearing in the Upper Tribunal
21. At the hearing before me to determine whether an error of law was made out, Mr Bellara relied on Miah (interviewer's comments: disclosure: fairness) [2014] UKUT 00515 (IAC). He did not have a copy of the case with him, so with my permission he sent me a copy by email later, together with further written submissions.
22. Mr Bellara submitted that the Upper Tribunal in Miah had expressly stated that the interview comments sheet must be disclosed as a matter of course. If the Appellants had been legally represented at the hearing, it was very likely that a legal representative would have highlighted the omission of the interview comments sheet from the Home Office bundle at the outset of the hearing, which may well have resulted in the matter being adjourned. It was only at today's hearing in the Upper Tribunal that the material document had been produced by Ms Brocklesby-Weller.
23. The Judge of the First-tier Tribunal had not considered the issue of the non-disclosure of the interview comments sheet when assessing if there had been any procedural unfairness. Accordingly, there was a material error of law.
24. In her oral submissions, Ms Brocklesby-Weller submitted that the ratio of Miah was that the applicant needed to know the case against him. As there was no material difference between the contents of the Refusal letter as against the contents of the interview comments sheet, the first Appellant did know the case against him, and he had not been prejudiced by the non-disclosure at the hearing before the First-tier Tribunal of the interview summary sheet. This non-disclosure made no difference to the outcome. The first Appellant was not prejudiced by the non-disclosure.
25. Ms Brocklesby-Weller developed these arguments in her written response to Mr Bellara's supplementary written submissions. There was no material error of law, as it was clear from the disclosure of the summary sheet at the hearing before me that the First-tier Tribunal Judge would have come to the same conclusion if the same document had been adduced before him, given that the decision letter replicated the appraisal of the interviewer.
Discussion
26. Paragraph [4] of the head note in Miah, states that:
"(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. ?"
27. The reasoning underpinning this guidance is to be found at paragraphs [20] onwards in the President's decision, under the heading of "the Rule 13 issue".
28. Rule 13 of the 2005 Procedural Rules provided that when the Respondent was served with a copy of a Notice of Appeal, it had to file with the Tribunal a copy of -
"(c) Any other unpublished document which was referred to in a document mentioned in (a) [the Notice of Decision to which the Notice of Appeal relates and any other documents served on the appellant giving reasons for the decision] or relied upon by the respondent."
29. A similar provision appears in Rule 24 of the Tribunal Procedure Rules, 2014.
30. At paragraph [21], the President said that:
"21. The requirement to make disclosure (formerly discovery) of all material documents in a party's possession, custody or power is a long established feature of most litigation contexts. It is an integral part of the administration of justice. It is a duty owed to both the other party and the court or Tribunal concerned. It is rooted in fairness and the rule of law itself. In the particular context of judicial review proceedings, Sir John Donaldson MR stated in R - v - Lancashire County Court, ex parte Huddleston [1986] 2 All ER 941, at 944:

"Certainly it is for the applicant to satisfy the Court of his entitlement to judicial review and it is for the Respondent to resist his application, if it considers it to be unjustified. But it is a process which falls to be conducted with all the cards face upwards on the table and the vast majority of the cards will start in the authority's hands"."
31. The President went on to say that:
"This has also been formulated as a duty of candour: see Tweed - v - Parades Commission (Northern Ireland) [2006] UKHL 33, at [54], per Lord Brown. Asylum, immigration and kindred appeals are a species of public law proceedings, in which the parties are the citizen (on the one hand) and the State (on the other). I consider that these duties apply with full force in the context of such appeals. To suggest otherwise would be inimical to the administration of justice. Rule 13 of the 2005 Rules is to be construed and applied accordingly."
32. The President went on in paragraph [22] to give the guidance contained in paragraph (iv) of the head note. He continued in paragraph [23]:
"23. While, there may be cases where it can be demonstrated that non-disclosure of this document did not contaminate the fairness of the Tribunal's decision making process, one would expect these to be rare."
33. In MM (unfairness; E & R) Sudan [2014] UKUT 00105 (IAC), the President made reference to the principle articulated by Carnwath LJ in E & R v Home Secretary [2014] EWCA Civ 49 at paragraph [64]. The court was concerned in E & R to provide a principled explanation of the reasons why a court whose jurisdiction is limited to the correction of errors of law is occasionally able to intervene, when fairness demands it, when an inferior body or Tribunal has taken a decision on the basis of a foundation of fact which was demonstrably wrong.
34. At paragraph [64] Carnwath LJ said that there was a common feature of all these cases, even where the procedure was adversarial, in that the Secretary of State or the particular statutory authority had a shared interest with both the particular Appellant and with any Tribunal or other decision-maker that might be involved in the case in ensuring that decisions were taken "on the best information" and on the correct factual basis.
35. In the same case at paragraph [15] the President considered the case of Cotton [1990] IRLR 344. In Cotton, the issue, in a nutshell, was whether the decision of the Chief Constable to dismiss a police officer was vitiated by procedural unfairness on account of inadequate disclosure to the officer of the case against him. The Presidential panel distilled the following principles from Cotton:
"(i) The defect, or impropriety, must be procedural in nature. ?
(ii) It is doctrinally incorrect to adopt the two stage process of asking whether there was a procedural irregularity or impropriety giving rise to unfairness and, if so, whether this had any material bearing on the outcome. These are, rather, two elements of a single question, namely whether there was procedural unfairness.
(iii) Thus, if the reviewing or appellate Court identifies a procedural irregularity or impropriety which, in its view, made no difference to the outcome, the appropriate conclusion is that there was no unfairness to the party concerned.
(iv) The reviewing or appellate Court should exercise caution in concluding that the outcome would have been the same if the diagnosed procedural irregularity or impropriety had not occurred."
36. Looking at the matter through the prism of Miah, I find that this is one of those cases where non-disclosure of the interview summary sheet has not contaminated the fairness of the Tribunal's decision making process.
37. All the comments and opinions of the interviewing officer underpinning his recommendation that the marriage is one of convenience were disclosed to the Appellants by service of the Reasons for Refusal letter.
38. The facts of this case are a world away from the facts of Miah. In Miah, the Refusal letter rehearsed a lengthy series of questions put to the claimant and his asserted spouse during separate interviews and their recorded answers, followed by the following assessment:
"It is evidently clear from the information that you and your EEA Sponsor provided during your interview with this department that you were not in a genuine and subsisting relationship with your EEA Sponsor and your marriage to her is one of convenience."
39. Accordingly, in Miah the Refusal letter did not spell out the case which the claimant had to meet, nor did it disclose the reasons given by the interviewing officer for making a recommendation that the marriage was one of convenience. It did not repeat the interviewing officer's description of his "impression" that the wife was evading certain critical questions during her interview.
40. Here, in contrast, nothing is added or subtracted from the comments and opinions expressed by the interviewing officer, as the caseworker adopts them all en bloc. So there is complete transparency, and the Appellants have not been deprived of a fair hearing by the non-disclosure of the source document for the contents of the Refusal letter.
41. Although not relied on by Mr Bellara, the interview summary sheet contains an additional observation by the interviewing officer that was not reproduced in the Refusal letter, as it did not form part of "the evidence to support recommendation".
42. The observation was made in the context of "BF/additional time given". It related to an incident with the first Appellant's ex-wife. The first Appellant said that he had been arrested following a complaint by his ex-wife that she had put something in her drink, but he had been released without charge. The Sponsor had given a similar account.
43. It would be fanciful to postulate that the non-disclosure of this additional observation by the interviewing officer contaminated the fairness of the Tribunal's decision making process, and Mr Bellara does not make such a submission. Understandably, he focuses on the procedural impropriety of the non-disclosure of the interview summary sheet, rather than upon the allied question of whether the non-disclosure is productive of unfairness.
44. Looking at the matter through the prism of MM, I am not persuaded that there is a real possibility that the outcome would have been different if the Appellants had been provided with a copy of the interview summary sheet in advance of the appeal hearing or if the Judge had been in possession of a copy of the interview summary sheet when writing up his decision.
45. Accordingly, there was no procedural impropriety in the proceedings before the First-tier Tribunal, and the decision of the First-tier Tribunal is not vitiated by an error of law.

Notice of Decision
46. The decision of the First-tier Tribunal dismissing the Appellants appeals did not contain an error of law, and accordingly these appeals to the Upper Tribunal are dismissed.

No anonymity direction is made.

Signed Date
Deputy Upper Tribunal Judge Monson