Charles Nimo v The Secretary of State for the Hoe Department

In an immigration appeal, the Secretary of State has no general civil-litigation duty to disclose all relevant material. The applicable duty is not knowingly to mislead the Tribunal.

Accordingly, an interviewer’s internal comments in form ICD.4605 need not be disclosed automatically in every marriage-of-convenience appeal. Under rule 24 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, disclosure is required where the document is referred to in the decision materials or relied upon as part of the respondent’s case. It must also be disclosed where it contains material capable of assisting the appellant which, if withheld while adverse material is relied on, would mislead the Tribunal.

The appellant, a Ghanaian national, applied for a residence card as the spouse of a Dutch national exercising Treaty rights in the United Kingdom. Following separate interviews, the Secretary of State concluded that the marriage was one of convenience and refused the application.

The First-tier Tribunal dismissed the appeal. It had the interview records and heard oral evidence, but it did not have form ICD.4605, an internal interview summary containing the interviewer’s recommendation and supporting comments. The appellant contended that non-disclosure was unfair under Miah (interviewer’s comments; disclosure; fairness) [2014] UKUT 515.

The issue was whether fairness or rule 24 required automatic disclosure of that form in a marriage-of-convenience appeal.

1. Appeal dismissed. The First-tier Tribunal made sustainable findings that the appellant’s marriage was one of convenience. Its decision was not rendered unfair by the non-disclosure of form ICD.4605.
2. The Tribunal rejected the proposition in Miah (interviewer’s comments; disclosure; fairness) [2014] UKUT 515 that ICD.4605 must routinely be disclosed. Immigration appeals are statutory merits appeals, not civil proceedings or judicial review. There is therefore no general duty of disclosure or duty of candour equivalent to that applicable in judicial review.
3. Applying CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 0059, the Secretary of State’s duty is not knowingly to mislead. The duty requires disclosure where an internal document contains information materially assisting the appellant that is absent from both the decision and interview records, and reliance on adverse material without that information would mislead the Tribunal.
4. Rule 24(1)(d) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 requires disclosure of an unpublished document referred to in the decision materials or relied upon by the respondent in the appeal. It does not extend to every advisory or preparatory document leading to the decision letter. Rule 24(2) supplies a mechanism where the respondent changes or adds to the reasons or grounds relied on.
5. Here, the decision letter identified the interview inconsistencies relied upon and the appellant had the verbatim interview records. ICD.4605 was neither referred to nor relied upon, and its undisclosed observations could not affect the First-tier Tribunal’s determination. No unfairness arose.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and upheld the First-tier Tribunal’s dismissal of the residence-card appeal.
• First-tier Tribunal: dismissed the appellant’s appeal after finding, on the balance of probabilities, that the marriage was one of convenience.