In the recently reported case of Elsakhawy (immigration officers: PACE) [2018] UKUT 86 (IAC), the Upper Tribunal dismissed an appeal concerning the applicability of the Police and Criminal Evidence Act 1984 (PACE) to immigration officers exercising powers of “pastoral” interview.
PACE is the law which safeguards the rights of those being interviewed, arrested or detained from intimidation and abuse of power. This decision distinguishes between an immigration enforcement visit where a criminal prosecution is intended and where PACE will apply, and a visit where a criminal prosecution could be pursued but is not intended and where PACE can be disregarded.
1. The respondent’s instructions and guidance to immigration officers correctly reflect the operation of sections 66 and 67 of the Police and Criminal Evidence Act 1984 (PACE) and of the Immigration (PACE Codes of Practice) Direction 2013, in drawing a distinction between administrative enquiries and formal criminal enquiries. The fact that immigration officers have powers of investigation, administrative arrest and criminal arrest does not require them to follow the PACE codes of practice concerning the giving of a “criminal” caution, when questioning a person whom they reasonably suspect of entering into a marriage of convenience, in circumstances where the investigation is merely into whether an administrative breach has occurred.
2. Section 78 of PACE, which gives a criminal court power to refuse to allow evidence which, if admitted, would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it, has little to say about the task facing a Tribunal, in civil proceedings under the EEA Regulations.
Mr Elsakhawy, represented by Julian Norman of Drystone Chambers, had married an EEA national and been issued with a residence card on this basis. He was faced with a removal decision after an enforcement visit to a place where he was temporarily staying.
Mr Elsakhawy’s account of the enforcement visit will be familiar to many immigration practitioners who have taken instructions regarding such visits. He reported that, early one morning, two immigration officers entered the flat where he was staying, encountered him sleeping and woke him up in order to abruptly question him about his immigration status. Mr Elsakhawy, whose first language is not English, was bewildered and intimidated by this unexpected encounter.
Despite having difficulties understanding the officers without being offered an interpreter, he answered questions willingly and co-operated with their requests, perceiving that he was being interrogated and that his co-operation was mandatory. He further alleged that the immigration officers’ behaviour was inappropriate, aggressive and threatening.
The Home Office disputed the allegations about the officers’ inappropriate behaviour and argued that PACE guidance did not apply in the present case because the situation concerned an administrative rather than criminal procedure.
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The judge found Mr Elsakhawy’s claims and his criticisms of the immigration officers’ conduct to be unreliable and upheld the Home Office’s argument that PACE guidelines did not apply. It was held that the Immigration Officers acted appropriately despite failing to caution Mr Elsakhawy, offer him an interpreter, allow him to speak to his lawyer, make a contemporaneous, full and accurate record of interview, or offer him the opportunity to read back and sign the notes.
This was because PACE did not apply where the intention was only to remove the person in question from the UK rather than to prosecute him.
However, where immigration officers behave in an egregiously unacceptable way (which was found not to have happened here), then their evidence may be disregarded by a tribunal. The difficulty is, of course, proving that such egregiously unacceptable behaviour has taken place, as in most scenarios the immigration officers will clearly have the upper hand in terms of keeping records of such visits.
This decision highlights the importance of individuals knowing that they are entitled to refuse to allow officers entry to their property, or insist on being arrested so that the PACE protections apply.
Legal practitioners should advise clients who are at risk of being detained or removed as a result of enforcement visits that it is preferable to be interviewed under the protection of PACE having been arrested, rather than being interviewed on the spot.
On the other hand, the decision serves as an important reminder of the procedures that Immigration Officers do need to follow when conducting enforcement visits, noting the Secretary of State’s codes of practice direction 2013.
Immigration officers, police and prosecutors will also need to be aware that evidence obtained in such visits cannot be used to support a prosecution.
