Sham marriages v Sham interviews: which is the greater evil?

Recently, I had the good fortune to receive instructions in three European cases involving marriages between EEA nationals and non-EEA nationals. My involvement and my findings in these cases left me astonished. I wish to share my experience with other immigration practitioners and advisers so that this may aid them in their investigations and advice in the future.

Persistent work and perseverance has paid off in what looked like hopeless cases. The shortcomings and the injustices of the Home Office “marriage interview” became apparent very quickly.

The European Commission Handbook (2014) and its predecessor the Communication from the Commission (2009) provide some very useful guidance to member states which aids them in conducting surveillance and investigating sham marriages (marriages of convenience). The EC Handbook makes reference to various trigger factors which can assist in investigations by the member states. It also identifies that there are certain factors which can be triggered by genuine married couples. For practitioners (including the judiciary), the EC Handbook has to be a starting point.

In the case of Miah (interviewer’s comments: disclosure: fairness) [2014] UKUT 00515 (IAC), the President of the Upper Tribunal, Mr McCloskey emphasised the importance of full disclosure by the Home Office. In marriage cases, the onus to prove that the marriage is a sham is on the Home Office.

Usually, and from my own experience, the starting and the finishing point for disclosure by the Home Office is the reasons for refusal letter alone. The refusal letter will contain a summary of the “discrepancies” that have been identified from the answers by the parties during the marriage interview. The summary is not evidence, and therefore insufficient in itself to prove the discrepancies alleged by the Home Office. The summary is only the interviewer’s own observations and selective understanding of the scenario. It does not contain the few hundred answers that the parties to a marriage are agreed on.

With this in mind, I turn to the facts and the task of obtaining full disclosure from the Home Office in the three cases in which I acted.

Gambia-Poland

The first case involved a Gambian national (the husband) who had entered into marriage with a Polish national (the wife). The parties had been in a cohabiting relationship for some three years prior to entering into a proxy marriage in Gambia. An application was submitted for an EEA residence card for the husband. The parties were called to the Liverpool office for a “marriage interview”.

The interview comprised over 500 questions for the wife and over 350 questions for the husband. It was audio recorded (as is the usual practice). The interviewer also made handwritten notes.

During the wife’s interview, a senior caseworker intervened and asked certain questions pertaining to the parties’ sex life. The EC Handbook prohibits a member state from asking questions about a person’s sex life. It is concerning when a “senior caseworker” makes such a blunder.

Disclosure difficulties

I requested full disclosure on at least 10 occasions from the Home Office over the course of four months. On each occasion my request fell on deaf ears. I sought a case management review hearing and aired my concerns about the lack of cooperation to the immigration judge. The judge, having regard to the brief summary (eight sentences) contained in the refusal letter, was minded to compel the Home Office to provide the audio recording and the related transcript. The Home Office argument that significant costs would be incurred in outsourcing the transcription to a third party would not be justified was dismissed by the tribunal. The Home Office argued that if it were required to produce the audio transcription, this would set off a trend amongst other cases. The tribunal rejected this argument.

A week later I was in possession of the audio recording. A couple of days after the audio CD arrived, I was sent a further letter advising that the recording could not be found! Being the gentleman that I am, I offered to provide a copy of the Home Office's own CD which I had been sent.

The audio recording disclosed that the interviewer was dyslexic. I identified various errors in the discrepancies that had been identified in the refusal letter. Some of the answers had been compared to answers from different questions to arrive at the discrepancy. Some of the discrepancies identified partial answers. It makes one wonder whether the discrepancies were in fact actual, or innocent or deliberate mistakes by the interviewer. The Home Office refused to make any information available with regard to any training undergone by the interviewer.

Under caution?

The parties were not cautioned at the beginning of the interview. After searching for any guidance available to the Home Office caseworkers, it quickly became apparent that there was no such guidance on the Home Office website. So, I requested it. Immediately, the iron curtain came down and I was provided with a cut and paste response about how the guidance would be misused to evade and thwart “effective” immigration control. I can understand that some parts of the guidance may not be appropriate to place in the public forum. However, as far as the procedural aspect is concerned, there is no reason why this should fall within the ambit of public policy and public security. I am continuing with this challenge through the Information Commissioner.

The guidance available to the caseworkers in enforcement cases provides that where the caution is not tendered, the interview is voluntary and the statements may be withdrawn by the parties at any time. The question then arises, if the statements are withdrawn, what is the status of the refusal letter? In the absence of the caution, is the Home Office entitled to rely on the contents of the statements? This is completely at odds with the right to a fair hearing in terms of the Human Rights Act 1998. John Vine, the Independent Chief Inspector of Borders & Immigration, produced a report titled A Short Notice Inspection of a Sham Marriage Enforcement Operation, dated 14 October 2013. At p 17, he noted that “Interviewing Officers started by correctly using the standard caution from the Police and Criminal Evidence Act 1984.” This is an issue which requires to be reviewed by the judiciary sooner rather than later.

Complete picture?

I was shocked to learn the detail in which the questions were being asked. After reflecting on some of the questions, I feel that I might have failed the interview miserably and, perhaps, my own marriage of 25 years would have become questionable!

I then insisted on disclosure of the interviewer’s handwritten notes. I was slightly disappointed and surprised to receive four blank sheets of paper in reply to my subject access request. Nonetheless, I lodged these with the tribunal. After all, it is only fair that the tribunal is provided with a true picture of the conduct of the Home Office, especially since any adverse immigration history of the appellant is pounced upon both by the judiciary and the Home Office.

It took four months of perseverance and three case management review hearings to press the Home Office into releasing the audio recording and the transcription. Without the audio recording, I fear to think how difficult it would have been for the parties to refute the discrepancies. The 900 or so answers which were the same would never have been brought to light. I continue to think about the untold damage that is being instigated by the Home Office in employing personnel not appearing to be properly trained.

At a recent seminar organised by the Scottish Human Rights Commission, the speakers for the Commission were inviting practitioners to liaise with them in such matters that are a cause for concern. I duly took advantage of this and presented the case notes to be placed before the committee. Unfortunately, it did not feel that this policy by the Home Office was of “strategic importance”. One wonders, if a draconian policy such as this is not one of strategic importance, what is? It would be helpful to know what constitutes “strategic importance”.

Pakistan-Latvia

The second case involved a Pakistani citizen (the husband) who had entered into marriage with a Latvian national (the wife). The parties entered into marriage in 2007. The parties initially submitted an application for an EEA family permit in 2007. The appeal was successful in 2008. The immigration judge held that the marriage was genuine. The husband then submitted an application for an EEA residence card and this was issued in 2009. In 2014 the husband submitted an application for a permanent residence card. Following on from this application, the parties were invited to the Liverpool office for a marriage interview.

At the termination of the interview, the non-EEA national husband was detained and the EEA national wife was released. However, both were served with removal directions. A letter questioning the logic of the Home Office’s actions was forwarded to the Liverpool office. The interviewer had disregarded both the EEA family permit, the successful appeal and the grant of the EEA residence card. The husband had been detained on the basis that he was a visitor who had overstayed since 2006. After several hours, the husband was released. The removal directions were eventually cancelled a few weeks later after several requests. In the meantime, the EEA national was required to report to her local police station and it was several months before the removal directions were withdrawn.

The interview in this case lasted over four hours. A few weeks later the refusal letter followed. I started the laborious task of seeking full disclosure from the Home Office. There was no response whatsoever from the Home Office other than one brief letter advising me that the file and the transcript and the audio recordings for the interview could not be located and were designated as lost!

The EC Handbook states that where the member state has carried out surveillance or other investigations that raise any suspicion about the genuineness of the marriage, these findings must be put to the parties at the interview. There was no such reference in the refusal letter and no such findings were put to the parties.

In the absence of any disclosure by the Home Office, the immigration judge held that the decision making process was unfair, and allowed the appeal. The refusal letter was considered to be insufficient and not a substitute for the Home Office producing full disclosure.

Privilege protocol

Unfortunately, the appeal outcome was not sufficient for the Home Office, which then sought a warrant and detained the non-EEA national for an immigration offence of deception! His legal case papers were removed by the police and immigration officers during this raid. One wonders whether professional legal privilege is a concept that the police and the Home Office are able to understand! Evidently, the time for lodging the appeal had elapsed and this was perhaps the only way for the Home Office to intervene in their relentless pursuit.

The “criminal interview” disclosed the lack of evidence and preparation of the criminal investigation. I was quite shocked when the interviewing officer put legal correspondence that he had retrieved from the seized legal papers to the non-EEA national during the interview. When reminded about the professional legal privilege, I was assured that “proper steps would be taken before the correspondence is reviewed”. What does this mean? The immigration officer had the audacity to tell me that he would take steps to review the papers. I presume all by himself!

There is a set protocol that the police and the Home Office are required to follow when executing a search under a warrant. The protocol requires that any legal correspondence which is tendering advice to the client is to be sealed in a bag and placed before the judiciary to determine if the legal privilege applies to that correspondence. I cannot help thinking that the correspondence he had put to the non-EEA national was never afforded the judicial examination that was required. I do hope that the criminal investigation is not going to be based on the legal correspondence that has been acquired through this search. I presume that the immigration officer must have had an opportunity to review the file of papers prior to conducting the criminal interview, including the determinations issued in 2008 and 2015. How far will these authorities go before they will accept the judicial determinations as binding on them?

Ghana-Estonia

The third case involved a Ghanaian national (the husband) who had entered into marriage with an Estonian national (the wife). The parties met in early 2011. They have two children as a result of their relationship. They submitted an application for an EEA residence card as a family member of an EEA national. The application was refused in 2013. The Home Office conceded the appeal and referred the case back to the caseworker. The caseworker again refused the application. On 1 September 2014 the appeal was successful on regulation 8 (durable relationship). The parties then decided to enter into marriage on 23 September 2014, after the appeal was allowed. Immediately after the marriage, they were invited to a marriage interview. I attended with them at the Liverpool office. I wished to experience the interviewing process myself.

It was not the best reception that I have had. It was quite evident that the Home Office team were not too pleased to have a representative accompany the couple. The interview commenced with the husband. I made a point of writing out the questions and the answers by placing my notepad immediately in front of the interviewer. After one and a half hours, the wife was interviewed. Her interview lasted 45 minutes. I had placed my notepad directly opposite the interviewer and made a point of placing large ticks on the answers that were correct. There were no discrepancies identifiable to me. Perhaps the couple were not able to be “interrogated” in the presence of their representative.

Naturally, at the end of the interview I took full advantage of questioning why the “marriage” interview had taken place, given that the couple had been successful at appeal on regulation 8. I questioned what trigger factors had been identified, the source of the surveillance, the substance of the case that had to be put to the couple, the lack of caution etc. The interviewer did not respond vocally. Perhaps this was due to the fact that the interview was being audio recorded. The interviewer did nod her head in agreement to one of my questions. I acknowledged her response vocally. However, after that she sat in complete silence and made no comment or further gestures. At the end of the interview, I requested a copy of the audio recording regardless of the outcome. I continue to wait in hope that maybe they will send this to me one day.

After the interview was concluded, I asked the interviewer what were her instructions. She advised me that she had no instructions as such other than to conduct the interview and identify the discrepancies.

Commentary

The “marriage interview” weapon which the Home Office is utilising against married couples is questionable. There is an inherent lack of fair play. Disclosure appears to be deliberately withheld or excessively delayed. If practitioners do not persevere, this will continue to have a drastic impact on the parties’ lives and their ability to present their case at appeal. Not only should practitioners utilise an invaluable tool by familiarising themselves with the EC Handbook, but proper preparation for the interview is an absolute necessity.

There is no substitute for spending valuable time in listening carefully to the audio recordings and identifying any potential issues. The transcript should be sought and compared to the audio recording to ensure there are no discrepancies. Meticulous preparation is absolutely necessary.

The Home Office is refusing to provide the guidance for marriage interviews. In the absence of disclosure of the guidance, the Home Office is prone to abusing its power. Preparation for the appeal requires the alleged discrepancies to be fully explained. However, this alone is insufficient in the absence of social and cultural understanding. The circumstances require to be considered as a whole. Interviewers cannot substitute their own views and experiences and expect the parties to have acted and behaved in a similar manner.

The couple should be advised of the importance of their representative attending with them at the interview. Instructing a professional to prepare and submit an application on behalf of the client is already a costly exercise. However, the damage that can be caused at the interview may be irreparable. Significant time, cost and stress can be avoided if the parties are accompanied by a representative who is well versed with their case. A greater level of responsibility comes for the representatives with this now frequently used procedure.

Judges are not particularly sympathetic towards practitioners who are seeking an adjournment due to the Home Office’s failure to provide full disclosure. It can take several months for the Home Office to acknowledge correspondence, let alone provide the full disclosure; however, the judiciary do not appear to have regard to this inherent difficulty. This is a cause of frustration for practitioners who are required to prepare and present cases without the full information being to hand. Delay in disclosure often results in cases being continued at the last minute, and invaluable time is wasted, instead of properly considered motions for adjournments being granted with directions for the Home Office to make full disclosure at the outset.

It has become necessary to keep a tight rein on the Home Office to avoid falling into a system which has become inherently unjust.