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The Police and Criminal Evidence Act 1984 (PACE) is a piece of legislation which governs the powers of police officers and also provides codes of practice. This blog looks at the extent to which PACE impacts on the powers exercised by immigration officers.

In the recent Upper Tribunal case of Elsakhawy (immigration officers: PACE) [2018] UKUT
86 (IAC) it was held that PACE will apply where there is an intention to bring a criminal
prosecution in the context of the exercise of immigration enforcement, however evidence
cannot be declared as inadmissible under the PACE Codes where the intention was simply
to remove a person from the UK under the administrative powers of Immigration officers.

The facts of the case were that Mr E was granted an EEA residence Card as a family
member of an EEA national. On 27 February 2015, immigrations officers were investigating
another individual’s marriage and Mr E was temporarily residing at his house. Immigration
Officers encountered the Mr E upon entering the property. They woke him up and began
interviewing him.

The Mr E alleged that the immigration officers were behaving inappropriately, as they were
aggressive and threatening. For example, they did not offer him an interpreter, did not allow
him to speak to his lawyer, failed to caution him and failed to provide him with an opportunity
to read back the notes of the interview. The Home Office set removal directions for the
appellant under section 10 of the Immigration and Asylum Act 1999 on the basis that he had
entered a sham marriage.

An issue raised by Mr E before the Tribunal was whether the questioning on 27 February
2015 was properly conducted in accordance with the Immigration (PACE Codes of Practice)
Direction 2013. This analysis would determine whether the evidence was admissible. It was
held that PACE did not apply where the intention was to remove the individual from the UK
rather than prosecuting him.

This makes little sense. Prima facie it appears that PACE rights will only be safeguarded if
individuals insist on being arrested and the protections of PACE and criminal law coming into
play. This is arguably absurd, as the individual is forced to put themselves into a situation
where they get the safeguards of PACE by being arrested (thereby ensuring they are treated
fairly by the government when being questioned by immigration officer).

Arguably, this is a double-edged sword. As discussed, in order to exercise PACE
requirements, there should be an intention to prosecute. Many immigration specialists have
argued that this may mean rejecting entry to immigration officers or not answering their
questions. However, if an individual proceeds with non-cooperative behaviour then the
Home Office may accuse them of non-compliance, which can have a detrimental
consequence on future applications. On the other hand, if an individual does not exercise
PACE requirements, then inaccurate answers may be logged and individuals may be forced
to provide inaccurate or incorrect information without the presence of a lawyer or translator.
Thus, clearly a double edged sword.

The immigration department at Drummond Miller LLP have successfully assisted several
individuals who have been subjected to accusations of sham marriage/ marriage of
convenience by the Home Office. Should you require assistance in relation to this matter or
any other immigration matter, please do not hesitate to contact the Edinburgh or Glasgow
Office.