Immigration interviews happen in several different contexts. Interviews may be necessary where, for example, an applicant has made a business visa application and is required to establish their credibility, has made a spouse visa application and is required to establish the genuineness of the relationship, or is an employer with a Sponsorship Licence subject to a Home Office enquiry.
Usually, such interviews are not audio recorded. Instead, a hand-written or typed transcript of the interview is made by the interviewer. The potential for unfairness is obvious; Home Office and entry clearance officials are – like human beings generally – susceptible to bias, mistake, or misunderstanding. The consequences of such unfairness are almost always significant. For example, an applicant might be refused leave to remain or enter, or an employer might have their Sponsorship Licence downgraded or revoked (with predictably ensuing chaos for their sponsored employees).
The Home office refuses to introduce audio recording as the normal practice in immigration interviews. The excuses usually given are woefully flimsy. To select a few from my own experience:
“It would cost too much” (incorrect because the cost can be passed on to the applicant)
“it would create data protection issues” (technically correct, but only to the same degree as for other data stored by the Home Office)
“it would subject officials to undue pressure” (this is not a proper reason)
“it would create health and safety issues” (an excuse actually advanced in one of my cases, I promise you)
The real reason that the Home Office does not want to allow audio recording is that public officials generally don’t like their judgement being subjected to scrutiny.
The problem is compounded in immigration appeal and judicial review proceedings when judges pay ‘lip service’ to immigration applicants’ protestations that their interview transcripts are not accurate, but then – probably because there is no other record to fill the informational vacuum – go on and accept the content of the transcript, with reasoning to the effect of “the note taker was a professional official doing their job; it seems unlikely that they would have recorded an answer incorrectly”.
The current situation creates unfairness and injustice, however the law can be developed coherently to redress this. A brief glance at the asylum context shows this.
Currently, asylum applicants have their interviews audio recorded, but this was not always the case. In R (Dirshe) v Secretary of State for the Home Department [2005] EWCA Civ 421, the Court addressed the issue of whether asylum applicants should be permitted to have their asylum interviews audio recorded. The Home Office did not permit audio recording at the time. At [14]–[18] Latham LJ held that :
[t]he interview could well be critical to any determination by either the respondent or appellate authorities as to the credibility of the applicant. The record of the interview is created by the interviewing officer, who is acting on behalf of the respondent. It follows that fairness requires that the procedure should give to the applicant an adequate opportunity to challenge its reliability or adequacy … A tape recording provides the only sensible method of redressing the imbalance which results from the respondent being able to rely on a document created for him without an adequate opportunity for the applicant to refute it.
Subsequently, the Home Office amended its policy so that asylum interviews could be audio recorded, however no such policy was introduced for immigration applicants generally.
The fundamental question for present purposes is this: are there any features of immigration interviews that distinguish them from the scenario considered by the Court in Dirshe? Why does fairness not require that interviews for business visas, marriage visas, or Home Office compliance enquiries, which have significant and enduring consequences for the immigration applicants affected by them, be audio recorded, so as to “give … the applicant an adequate opportunity to challenge its reliability or adequacy” as stated in Dirshe? In my view there is no such justification. Immigration Lawyers should, in my view, ask for all interviews to be audio recorded to protect their clients’ interests; if the Home Office refuses then serious consideration should be given to whether judicial review proceedings challenging that refusal are warranted.