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Upper Tribunal says no duty of candour on Home Office in statutory appeals

Upper Tribunal says no duty of candour on Home Office in statutory appeals

In Nimo (appeals: duty of disclosure : Ghana) [2020] UKUT 88 (IAC) the Upper Tribunal, consisting of Mr Justice Lane and Mr Ockelton, has held that the duty of candour applying to parties in judicial review proceedings does not apply in statutory appeals and there is no obligation in marriage of convenience cases for the Home Office to disclose Form ICD.4605, which sets out the interviewer’s comments:

(1) In an immigration appeal, the Secretary of State’s duty of disclosure is not knowingly to mislead: CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59, citing R v SSHD ex parte Kerrouche No 1[1997] Imm AR 610.

(2) The Upper Tribunal was wrong to hold in Miah (interviewer’s comments; disclosure; fairness) [2014] UKUT 515 that, 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. No such general requirement is imposed by the respondent’s duty of disclosure or by rule 24 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.

Although the tribunal does not say so (rather unhelpfully) there is still surely an obligation on the Home Office to serve verbatim interview notes, as had occurred in this case.

The common law system of case precedence does not formally apply in tribunal proceedings but judges are normally loathe to simply reverse an earlier decision just because they disagree with it. Apparently the McCloskey Exception applies here. 

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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