Disclosure of Home Office interviewers’ notes

In Nimo (appeals: duty of disclosure) [2020] UKUT 88 (IAC), the Upper Tribunal (Immigration and Asylum Chamber) held that, in cases where a marriage of convenience is alleged, the Home Office is not under a duty to provide an appellant and the Tribunal with the marriage interviewer’s notes.

The Appellant in this case was a Ghanaian national whose application for an EEA residence card based on his marriage to a Dutch national was refused by the Home Office because the marriage was alleged to be one of convenience. One of the reasons relied on by the Home Office was alleged discrepancies in the Appellant and his wife’s interview answers. The Appellant appealed the refusal to the First-Tier Tribunal, but the latter dismissed his appeal.

When appealing to the Upper Tribunal, the Appellant raised the Home Office’s failure to disclose form ICD.4605, which is a summary sheet containing a “recommendations” section, written by the interviewer. The Appellant cited the case of Miah (interviewer’s comments; disclosure; fairness) [2014] UKUT 515, decided previously by the Upper Tribunal, where it was held that form ICD.4605 must be disclosed in appeals to guarantee a fair hearing. Overruling Miah, the Upper Tribunal held that there was no general duty of disclosure in an Immigration Appeal, and that such a duty exists only in judicial review litigation. The Upper Tribunal did state, however, that the Home Office had an obligation to not mislead the Tribunal, and that notes which ‘materially’ helped the appellant therefore had to be disclosed.

The Upper Tribunal’s Decision clearly explains that there is no general duty of disclosure in immigration appeals, however it does not explain how anyone might ensure that the Home Office adheres to its duty to not mislead. Presumably, immigration applicants must simply trust the Home Office, which seems unsatisfactory.

If you have an issue with a past or prospective Home Office interview, contact one of our Immigration Barristers. We are specialist Immigration Lawyers with experience of helping clients manage the Home Office interview, immigration appeals and immigration judicial reviews.


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