Day: March 9, 2018

Inappropriate behaviour of Immigration Officers during enforcement visit supported by Upper Tribunal Judgement

Appeal against removal directions on the grounds of undergoing a sham marriage is dismissed after the Upper Tribunal judge finds the claims about inappropriate behaviour of Immigration Officers (IOs) during an enforcement visit unfounded.

The Appellant is an Egyptian national entered into a marriage with an EEA national whilst overstaying in the UK after his 6-month visitor visa expired. The Appellant had removal directions issued against him after an enforcement visit to the place he was temporarily residing at.

It was alleged by the Appellant that the IOs were behaving in a threatening manner and did not follow the procedure required by law, namely the Police and Criminal Evidence Act 1984 (PACE) requirement to give the Appellant a criminal caution.

The Respondent disputed the allegations about the inappropriate behaviour of the IOs and argued that PACE guidance did not apply in the present case because the situation concerned an administrative rather than criminal procedure.

Having reviewed the evidence available, the Judge found that the Appellant’s claims and criticisms of the IOs’ conduct to be unreliable, and supported the Respondent’s argument that PACE guidelines did not apply to the present case, thus ruling that the IOs did not breach PACE by failing to give the Appellant a criminal caution.

The distinction between criminal and civil proceedings was crucial to uphold to avoid the confusion between the two very different sets of rules.

The case, nevertheless, is very helpful at reminding us about the procedure the IO need to follow when making an enforcement visit. It notes that the Secretary of State made a Codes of Practice Direction in 2013, which states that:

  • A person, suspected of an offence, must be cautioned before any questions about an offence are put to them. There is no need to be cautioned, however, if questions refer to other necessary purposes, such as obtaining information by a statutory requirement.
  • The person must be told that they are not under arrest and informed about how they may obtain legal advice.
  • The caution must be in the following terms: “You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.”
  • The caution should not be given when the questioning is intended to establish basic facts such as identity, however the purpose of questioning must be identified.
  • If a reasonable suspicion that the person in question is liable to be held in immigration detention arises out of known information, person’s actions or information discovered during the enquiry, and the person must be arrested, they must be given the administrative explanation or criminal caution.
  • The arrest must be necessary to progress the case
    • It is unlikely that arrest would be appropriate if the person’s immigration status is known and no progression on the case will be made by arresting them.
  • The person under arrest must be informed that:
    • They are under arrest and not free to leave;
    • The reason for the arrest;
    • Why it is necessary to arrest them.
  • Where IOs use criminal powers to make an arrest they must comply with PACE
    • To have a criminal power of arrest, IOs must have a genuine intention to prosecute the individual and have reasonable grounds to suspect that the person has committed or attempted to commit a criminal offence
  • Where IOs use administrative powers to make an arrest, they must notify the person of their detention and reasons for it as per Immigration Act 1971.

Refusal of asylum to a Ukrainian national successfully appealed on human rights grounds

A Ukrainian national (the Appellant) was refused asylum claim by the Secretary of State (the Respondent), however the refusal was successfully appealed on the ground that the removal of the Appellant from the UK would breach his Article 3 ECHR right, which prohibits inhuman or degrading treatment or punishment.

The Appellant is a Ukrainian national with Russian background, illustrated by a Russian military card, who had continuously ignored summons for military service in Ukraine. After obtaining a UK visa, the Appellant claimed asylum on the basis of his fear of harsh treatment and possibility of being forced to fire upon “fellow Russians” upon his return to Ukraine. The Respondent has argued that the Appellant did not provide sufficient evidence of his Russian background or military summons, which were allegedly destroyed by his wife who stayed in Ukraine.

The Judge noted that ill-treatment is not as severe as prosecution, however he admitted that the Appellant would likely be treated as draft evader in Ukraine. Despite the argument that Ukraine offers some alternatives to military service, which the Appellant did not consider, the Judge noted, with reference to the case of RY 2016, that there was a reasonable degree of likelihood that the Appellant would be at risk of being detained as a draft evader, especially provided his Russian background.

Together with an expert confirming the genuineness of the Appellant’s Russian military card and one summon letter, the evidence and arguments presented led to the Judge finding that the refusal to grant asylum to the Appellant could breach Article 3 rights.

On this basis, the appeal was allowed.