Mahmoud Ahmed Abdel-Samia Elsakhawy v The Secretary of State for the Home Department

An immigration officer investigating whether an EEA residence right has been abused by a marriage of convenience is not, merely because the officer also has criminal-investigation and arrest powers, conducting a criminal investigation. A criminal caution under the PACE codes is required only where the questioning is a formal criminal inquiry with a real prospect of prosecution, not an administrative inquiry into an immigration breach.

The criminal-law exclusionary discretion in section 78 of the Police and Criminal Evidence Act 1984 does not govern civil proceedings under the EEA Regulations. The Tribunal may nevertheless exclude evidence obtained through seriously abusive conduct. On the evidence, the respondent proved that the marriage was entered into solely to circumvent residence rules.

The appellant, an Egyptian national, appealed against removal directions based on alleged abuse of EEA residence rights through a marriage of convenience. The First-tier Tribunal dismissed his appeal on 31 March 2016.

Upper Tribunal Judge Rimington set that decision aside in its entirety on 7 October 2016 because of errors in the approach to the date and purpose of the marriage, and directed that the appeal be remade. The remaking Tribunal considered whether the respondent had proved a marriage of convenience and whether evidence from an immigration enforcement visit should be excluded because of alleged non-compliance with the Police and Criminal Evidence Act 1984 and the Immigration (PACE Codes of Practice) Direction 2013.

1. Appeal dismissed. The respondent proved on the balance of probabilities that the appellant had entered into a marriage of convenience. The legal burden remained on the respondent, but the evidential burden shifted once there was reasonable suspicion. The appellant failed by a substantial margin to rebut that suspicion.

2. The Tribunal found that the marriage had been entered into with the sole aim of circumventing residence rules for a third-country national. The appellant had entered the United Kingdom intending to remain permanently, sought a marriage to regularise his position, and gave unconvincing evidence of the relationship. The documentary evidence, alleged cohabitation evidence, travel evidence and absence of evidence from the wife did not establish a genuine relationship. The respondent's further evidence strongly reinforced that conclusion.

3. The finding did not depend on evidence obtained during the enforcement visit. The Tribunal nevertheless held that the officers were conducting an administrative inquiry, not discharging a duty to investigate offences or charge offenders for the purposes of section 67(9) of the Police and Criminal Evidence Act 1984. Their powers of administrative and criminal arrest did not merge those distinct functions.

4. The reference in Schedule 1 to the Immigration (PACE Codes of Practice) Direction 2013 to an interview under caution to establish an offence or breach concerned a criminal offence or criminal breach. Code C paragraph 10.1 likewise contemplated a real likelihood that answers or silence might be used in a criminal prosecution. It did not require a criminal caution during an administrative investigation into a suspected marriage of convenience. The Home Office guidance distinguishing administrative inquiries from formal criminal inquiries was compatible with section 67(9).

5. Section 78 of the 1984 Act has limited relevance to the Tribunal's civil determination of entitlement under the EEA Regulations. Seriously abusive official conduct could justify exclusion in an appropriate case. The Tribunal found the allegations against the immigration officer unreliable or substantially exaggerated, and there was no basis to exclude the evidence.

• Upper Tribunal (Immigration and Asylum Chamber): On remaking the appeal, the Tribunal dismissed it and upheld the conclusion that the appellant had entered into a marriage of convenience.
• Upper Tribunal (Immigration and Asylum Chamber): On 7 October 2016, Upper Tribunal Judge Rimington set aside the First-tier Tribunal's decision in its entirety for material errors and directed a resumed hearing.
• First-tier Tribunal: First-tier Tribunal Judge Millar dismissed the appeal on 31 March 2016 against removal directions under section 10 of the Immigration and Asylum Act 1999.