How can the Home Office be prevented from withholding important information in immigration appeals? 

In Nimo (appeals: duty of disclosure) [2020] UKUT 00088 (IAC) the Upper Tribunal – consisting of Lane J, President, and Mr Ockelton, Vice-President – has decided to revisit the question of the Home Office’s duty to disclose material potentially helpful to an appellant during the course of an appeal. In doing so, the Tribunal has made a point of overruling a decision of the previous President, Miah (interviewer’s comments; disclosure; fairness) [2014] UKUT 515, apparently on the grounds that it was made without reference to earlier authority and was therefore per incuriam.

Nimo concerns an alleged marriage of convenience in an EEA case.  The refusal was based, as so often in such cases, largely on discrepancies between answers given by the appellant at a Home Office interview and those given by his wife, which were said to show that they were not genuinely married. The issue arising was whether the Home Office was required to disclose, as a matter of course, the comments of the interviewing officer, contained in a form called ICD.4605.  The appellant’s hope, it seems, was that those comments might have placed the discrepancies in a better light.

The Tribunal cites CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 00059 (IAC), and the references in it to cases such as R v SSHD ex p Kerrouche [1997] Imm AR  610 and R (Cindo) v IAT [2002] EWHC 246 Admin. From those it concludes, according to the headnote, that ‘the Secretary of State’s duty of disclosure is not knowingly to mislead’.  On that basis, it disapproves the decision of the previous President in Miah, to the effect that (in the words of the headnote to Nimo) ‘in every appeal involving an alleged marriage of convenience, the interviewer’s comments in the Secretary of State’s form ICD.4605 must be disclosed to the appellant and the Tribunal’.

There is no doubt that Miah, like many Tribunal decisions of its era, relies more on vigorous reasoning from first principles (general case law on fairness) than on any obvious familiarity with previous judgments on the very point at issue: CM Zimbabwe, Kerrouche and Cindo are not mentioned, for instance.

Nevertheless there are a number of difficulties in limiting the SSHD’s duties in the way set out in Nimo, which are avoided by the more expansive approach in Miah, and would also be avoided by a general duty of disclosure.

One difficulty is very simply that it cannot be known whether the Home Office has misled the Tribunal (knowingly or otherwise) unless access is given to all relevant material.  Without suggesting that the Home Office routinely misleads in immigration and asylum appeals, many practitioners will have encountered situations where apparently relevant information has been withheld by the Home Office, sometimes inadvertently.  One such case is outlined here.  It is not as if the Home Office is a shining example of good practice even in proceedings where there is a duty of full disclosure (specifically, judicial review claims), never mind in ones where there is not.  It is also notable that the headnote to Nimo does not fully explain what the previous cases decide: Kerrouche and Cindo make clear that the duty is not limited to the obvious need to avoid consciously lying, but includes where the SSHD ‘ought to have known’ that there is material detracting from her case – that is, where she ought to have realised the relevance of something, but did not in fact realise it. 

It is hardly unthinkable that the SSHD will simply not appreciate that she is in possession of material which undermines her case or supports the appellant’s, for example because she does not trouble to look for it, or does look but does not appreciate how significant a particular document might seem to an appellant or their representative.  Bundles of materials submitted by the Home Office in immigration appeals do not often give the impression of having been put together by someone who has carefully weighed up the objective relevance of each and every document on the Home Office file.  Even if one assumes good faith on the Home Office’s part in all cases, who polices situations where there has been a bona fide mistake?

An example, in a slightly different context, of a situation where the SSHD may genuinely not have appreciated the importance of a particular document appears in MM (unfairness; E & R) Sudan [2014] UKUT 00105 (IAC).  In that case, the appellant was disbelieved on the basis of her claim, made in oral evidence at the hearing, that she had instructed her solicitors to complain about misunderstandings at her asylum interview.  The judge did not accept that there had been misunderstandings and regarded her claim to have raised her concerns at the time as compounding her lack of credibility.  In fact the Home Office had a copy of just such a complaint letter on file, but had not sent it to the First-tier Tribunal. The Home Office decision-maker may not have appreciated how important it would turn out to be, while the Presenting Officer before the FTT did not have a copy of it.  The refusal of her asylum appeal had to be set aside and the decision re-made because of the resulting unfairness.

A second reason for querying the correctness of the Tribunal’s view on disclosure is that we now know that the appellate process, even though it involves a fresh decision on the merits, does not start with a blank slate.  This was explained by the Supreme Court in Hesham Ali v SSHD [2016] UKSC 60 at [45]-[46]:

Where an appellate court or tribunal has to reach its own decision, after hearing evidence, it does not, in general, simply start afresh and disregard the decision under appeal.  […] In a more recent licensing case, R (Hope & Glory Public House Ltd) v City of Westminster Magistrates’ Court [2011] PTSR 868, para 45, Toulson LJ put the matter in this way:

“It is right in all cases that the magistrates’ court should pay careful attention to the reasons given by the licensing authority for arriving at the decision under appeal, bearing in mind that Parliament has chosen to place responsibility for making such decisions on local authorities. The weight which magistrates should ultimately attach to those reasons must be a matter for their judgment in all the circumstances, taking into account the fullness and clarity of the reasons, the nature of the issues and the evidence given on the appeal.”

These observations apply a fortiori to tribunals hearing appeals against deportation decisions. The special feature in that context is that the decision under review has involved the application of rules which have been made by the Secretary of State in the exercise of a responsibility entrusted to her by Parliament, and which Parliament has approved. It is the duty of appellate tribunals, as independent judicial bodies, to make their own assessment of the proportionality of deportation in any particular case on the basis of their own findings as to the facts and their understanding of the relevant law. But, where the Secretary of State has adopted a policy based on a general assessment of proportionality, as in the present case, they should attach considerable weight to that assessment […].

Although the specific context of that was the assessment of proportionality in a deportation case, it seems clear from the generalised remarks at the outset, the comments about the constitutional role of the Home Office and the invocation of a licensing case that it was not limited to that factual situation, but applies to immigration decision-making across the board.

But if the Tribunal, in reaching its own decision, has to decide what weight to give the Home Office’s decision, based on the quality of its reasoning, it is not clear why material which might show that decision to have been wrong at the time it was made, or to have been reached by way of an unfair process, should not be shown to the Tribunal and the appellant.  To that extent it is not clear that the Tribunal was correct, in Nimo, to say that ‘the reasons for the respondent’s decision are merely the starting point for an independent judicial process': in fact, the reasons for the Home Office's decision are not just a starting point for the independent judicial process, but a relevant factor to be taken into account in the course of that judicial process.  In practice, it is far from unusual to see First-tier Tribunal judges citing refusal letters at considerable length and/or expressly agreeing with their content – or, conversely, explaining in detail why they do not agree with them. 

The fact that, as the Tribunal in Nimo stresses, it is common in a complex organisation for different officials to reach different views before a final decision is reached does not mean that the assessment of the interviewer – who will often be the only Home Office official to meet the appellant face-to-face in advance of a decision to refuse – is irrelevant when the interview records are assessed by the Tribunal.

Third, in CM Zimbabwe, immediately after the passage cited by the Tribunal in Nimo, the Tribunal goes on to say that ‘the respondent’s duty to act fairly and not mislead is supplemented by the power of the Tribunal to issue specific directions’, and to refer to rule 5 of the UT Procedure Rules.  That rule contains the Tribunal’s power to ‘require any person, body or other tribunal whose decision is the subject of proceedings before the Upper Tribunal to provide reasons for the decision, or other information or documents in relation to the decision or any proceedings before that person, body or tribunal’.  It is reflected in rule 4(3)(d) of the FTT Procedure Rules (power to ‘permit or require a party or another person to provide documents, information, evidence or submissions’).  Indeed, in CM Zimbabwe itself, the Tribunal records that it had previously ordered the Home Office to produce material relevant to the accuracy of a public statement made by Ministers about the reasons for resuming enforced returns of asylum seekers to Zimbabwe: see [48].  

Thus, on the very authority cited by the Tribunal, there is a power for either tier of the Tribunal to require a document to be produced, no doubt including situations where fairness demands it.  So pointing to the absence of an express duty of disclosure in the Procedure Rules only takes matters so far.

Fourth, and related to the previous point, it is well established that there is an interest, shared between the parties and the Tribunal, in decisions being taken on a fully informed basis, in order to avoid breaches of the state's human rights obligations: see e.g. E & R v SSHD [2004] EWCA Civ 49, [64]: in asylum appeals, it is ‘in the interest of all parties that decisions should be made on the best available information’; the same logically applies to human rights appeals.  

That surely implies that the Home Office should be required not simply to refrain from lying to the Tribunal or inadvertently misleading it, but should actively help it to reach a decision consistent with human rights.  As in Mr Nimo's case, the performance of the applicant at interview is often a significant reason for deciding that they should be denied the right to live with their partner on the grounds that the relationship is not genuine, a decision which, if wrong, is clearly relevant to the human rights of all concerned.

There is already a duty on the Home Office to ensure that the Tribunal has access to information about an asylum-seeker’s country of origin, even if that undermines the case being advanced by the Home Office: see e.g. UB (Sri Lanka) v SSHD [2017] EWCA Civ 85, in which the Court of Appeal criticised the SSHD for failing to produce evidence available to her which indicated that members of a Tamil separatist group might be detained on return: Irwin LJ said at [16] that there was ‘the clearest obligation on the Secretary of State to serve relevant material and ensure it was before the Tribunals at both levels’.

As to the facts in Nimo, the Tribunal illustrates the principle it has just explained by saying that the interviewer’s notes, eventually provided after the grant of permission to appeal, did not in fact assist the appellant, because the interviewer had raised almost exactly the same concerns about his answers as were raised in the eventual decision letter.  That may be an example of the importance of being careful what you wish for, but it is not a reason for saying that the notes should not have been disclosed sooner. 

The Tribunal goes on to comment that ‘[i]f, for example, the interviewing officer comments that the appellant or spouse appeared to be seriously unwell during the interview, and that this might account for the unsatisfactory answers given, then the respondent is under a duty to disclose’.  But that once again begs the question of who decides whether the material is relevant (i.e. who decides whether the hypothetical illness is or is not capable of explaining any hypothetical unsatisfactory answers) and who ensures that the Home Office has complied with this duty, and how.  The Tribunal’s further implication that a wider duty of disclosure might require the production of ‘all internal communications leading to any decision in the immigration field’ is unconvincing, there being an obvious difference between the first-hand observations of a person who has carried out a crucial interview and, say, the numbing details of the movement of a file between different departments in the Home Office.  (That said, in some cases, for instance those involving delay by the Home Office, even the most apparently mundane information might turn out to be relevant.)

It is difficult to see what is lost by requiring the Home Office to produce the interviewer’s comments in a case like Mr Nimo, or to be more proactive generally in providing documents which might be relevant.  The Tribunal, after all, regularly instructs the Home Office to submit specific material in deportation cases (PNC records, sentencing remarks etc), regardless of whether the SSHD has relied on them, and it is reasonable to think that it does so proactively because it considers them relevant to its assessment of the appellant’s human rights. 

Of course much of this material can in theory be acquired through a subject access request, but these routinely take months to be answered.

Disclosure does not always help the appellant: the interviewer's notes did not help Mr Nimo, and in his case, it is hard to avoid the sense that the Tribunal wanted to discourage anyone else from bringing an appeal on what turned out to be, at best, a technicality.  But it is hard to see how even a hostile interviewer’s notes would make things worse for most appellants, who by definition are facing a negative decision by the Home Office, often involving an allegation that they are not telling the truth.  The discrepancies relied upon in this case seem to have been far from intrinsically inexplicable: even without factoring in the effect of stress or nerves, some people may well feel sympathy with Mr Nimo’s inability to recall exactly when his wife had last gone abroad or just who had taken a particular photograph of the couple in a particular restaurant.  

So it is possible that Mr Nimo’s interviewer might have made comments favourable to him (as had happened in the anonymised case referred to above), which could have led the FTT judge to reach a different view.  Similar things could be said in respect of many an asylum interview, which may seem on paper to have gone well, only for a different official to decide that the applicant is lying on the basis of questions which were not asked, or not properly explored.  Alternatively, the interviewer might have been so overtly negative about Mr Nimo as to call into question the fairness of the interview: again, interviews involving what appears to be inappropriately sceptical questioning or a failure to take account of an interviewee's obvious distress are far from unknown. 

Many practitioners will have experienced cases where facts relevant to the Home Office’s assessment only come out much later, sometimes demonstrating that the Home Office has not properly considered their relevance and occasionally giving rise to a sense that those facts may have been viewed through a Nelsonian blind eye or even consciously suppressed.  In Mr Nimo's case, as in the others mentioned above, the material only came out in the course of an onward appeal, but those could have been avoided if it had been produced in the first place.

That is not to say that the Tribunal will benefit from being sent hundreds of pages of Home Office case records which turn out to be useless, but it is to suggest that appellants and their representatives ought routinely to be sent the contents of their Home Office files so that they can decide whether anything in them is relevant to their appeal.  An opportunity to provide these would arise, just as an example, at the point in the new 'pilot' procedure where the Home Office is expected to respond constructively to the appellant's evidence and arguments.

The alternatives, of either allowing the Home Office to decide unilaterally what is relevant or allowing it not to give any thought to the matter at all, are clearly not working.

A requirement on the Home Office in all cases to provide to the appellant any material bearing on her decision, i.e. a requirement closer to (or even beyond) that found to exist in Miah, would be more obviously consistent with the demands of fairness and the interests of all concerned in making human-rights-compliant decisions, as well as reducing the need for onward appeals.  As long as no such requirement exists, the concern will remain that the Home Office might be withholding important information in cases vital to people's lives and well-being, with only limited means of preventing it from doing so.