The recent case of Elsakhawy (immigration officers: PACE)  UKUT 86 (IAC) in the Upper Tribunal examined whether evidence obtained by an immigration officer is admissible in court if the Immigration Officer has not followed the PACE codes of Practice.
What is PACE?
The Police and Criminal Evidence Act 1984 (PACE) and the accompanying PACE codes of practice establish the powers of the police to combat crimes while protecting the rights of the public. It sets out to strike a balance between the powers of the police and the rights and freedoms of the public. The codes of practice cover matters such as stop and search (individuals and premises), arrest, detention, investigation, identification and interviewing detainees.
The PACE codes of practice do not only apply to police officers but anyone who has duty of investigating criminal offences or charging offenders.
The case before the Upper Tribunal
Mr. Elsakhawy, an Egyptian national who had married a Polish national and applied for a residence card as the spouse of an EEA National exercising Treaty Rights in the United Kingdom, stipulated that he was encountered whilst staying with a friend, early in the morning by two immigration officers.
The Appellant was woken up by the officers, who abruptly asked him many questions about his immigration status. Bewildered and intimidated, Mr. Elsakhawy had maintained he could not fully understand the questions.
Mr. Elsakhawy was not offered the services of an interpreter and was not given a criminal caution. He further submitted that the immigration officers had behaved inappropriately, aggressively and in an intimidating manner. He therefore believed that it was mandatory for him to co-operate with the immigration officers. In the circumstances, he had answered the questions willingly without an interpreter and legal advice.
Mr. Elsakhawy’s representatives argued that PACE ought to be applied and the evidence should be inadmissible because the Appellant had not been provided with an interpreter, an opportunity to seek legal advice and make a contemporaneous note and record of the interview. Furthermore, the Appellant was not even offered an opportunity to read back and sign the immigration officer’s notes.
The Upper Tribunal’s determination
The Upper Tribunal agreed with the Home Office and held that there is a distinction between administrative and criminal enquiries.
Although the immigration officers have investigative powers and an administrative and criminal power to arrest, they are not required to give a criminal caution when investigating someone they suspect to have entered into a sham marriage. The criminal courts have a power to refuse to allow evidence which would have an adverse effect on the fairness of the proceedings if admitted. The Upper Tribunal held that PACE does not therefore apply when the intention of an investigation is not to prosecute. Given that the Appellant in this instance was questioned with the intention of him being removed rather than prosecuted, PACE was inapplicable and the evidence was admissible.
Nevertheless, the Tribunal clarified that grossly abusive set of failures on the immigration officer’s part will incline them to refuse to allow evidence where PACE has not been followed. In this instance, the Upper Tribunal did not find Mr. Elsakhawy’s claim that the immigration officers had behaved inappropriately, aggressively and in an intimidating manner, credible.
What does this all mean?
You are entitled to refuse to allow an immigration officer entry into your premises. Furthermore, you are entitled to refuse to show your belongings to an immigration officer.
There is however a risk that taking such approaches may result in you being given a criminal caution or arrested. However, at that stage, PACE protections will apply and you will have a right to an interpreter and legal advice at the time of questioning.
Sometimes, it may be more desirable to agree to an interview on the spot which is not subject to the safeguards provided by PACE. It is worth remembering that since PACE does not apply to administrative investigations, any evidence obtained in such investigations may be used in your immigration matter but it cannot be used to support a later prosecution, as they will not comply with the PACE requirements.
If you have any queries, are subject to detention or removal and would like assistance, please contact Hillay Janebdar, an associate solicitor and head of our immigration team at firstname.lastname@example.org