Secretary of State for the Home Department v Abul Miah

A finding that a marriage is one of convenience requires procedural fairness. The person concerned must ordinarily be told the essential substance of the case against them and given a proper opportunity to respond, usually during interview.

Comments or opinions from an interviewing officer may properly be provided to the decision maker. They do not ordinarily make the process unfair, provided the decision maker considers all material with an open mind and circumspection. The interviewer’s assessment must nevertheless be disclosed for an ensuing appeal. Under the applicable procedural rules, Form ICV.4605 should be disclosed as a matter of course, subject only to exceptional protective measures directed by the Tribunal.

The Secretary of State refused Mr Miah, a Bangladeshi national, a right of residence as the spouse of an EEA national. The decision treated the marriage as one of convenience. The First-tier Tribunal allowed his appeal.

The Secretary of State appealed to the Upper Tribunal. The principal issue was whether the pre-decision process was unfair because adverse comments and opinions of the interviewing officer had been supplied to the decision maker but not to Mr Miah. A subsidiary issue concerned whether the Secretary of State was required to disclose the interviewer’s Interview Summary Sheet, Form ICV.4605, in the appeal proceedings.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside. The appeal was remitted to a differently constituted First-tier Tribunal to decide afresh whether the marriage was one of convenience.

2. A decision that a marriage is one of convenience under regulation 2(1) of the Immigration (European Economic Area) Regulations 2006 has serious consequences. Procedural fairness therefore requires the affected person to be alerted to the essential substance of the case against them. In the ordinary case, this is achieved by putting the relevant suspicions and evidence to the person during interview, so that they may give explanations and representations.

3. Fairness is context-specific. In an unusual case, protecting an informant’s identity may not remove the need to disclose the substance of the information. In a difficult borderline case, fairness may even require disclosure of the identity or precise words of a third party’s allegation. That question must be resolved case by case by balancing all relevant interests.

4. The fact that an interviewer’s adverse comments or opinions are supplied to the decision maker does not ordinarily contaminate the decision-making process. An interviewer may be well placed to comment on matters such as the interviewee’s presentation and reactions. The decision maker must assess all material with an open mind and circumspection and is not bound by the interviewer’s view. Here, the substance of the case had been put to Mr Miah, and there was no distortion or reliance on undisclosed adverse evidence. The Secretary of State’s decision was therefore lawful.

5. In appeal proceedings, the duties of disclosure and candour require Form ICV.4605 to be disclosed as a matter of course under rule 13 of the Asylum and Immigration Tribunal (Procedure) Rules 2005. Exceptionally, a genuine concern such as protection of a third party should be raised proactively with the Tribunal so that it can direct safeguards, including redaction. The materially unchanged successor rules should be approached in the same way.

• Upper Tribunal (Immigration and Asylum Chamber): the Secretary of State’s appeal was allowed. The First-tier Tribunal’s decision was set aside and the appeal remitted for a fresh merits decision.
• First-tier Tribunal: allowed Mr Miah’s appeal against refusal of a right of residence as the spouse of an EEA national.