Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 71 (AAC)

Fecha: 11-Ene-2024

Erred in relying on ‘insufficient’ evidence?

Erred in relying on ‘insufficient’ evidence?

34.

Part of this ground of appeal is that the FTT did not have “sufficient” evidence to make the finding at [54]; the error of law being alluded to here is that of making a finding that was perverse, or irrational, or which no reasonable tribunal could have come to on the evidence before it.

35.

It seems to me that the evidence on which the FTT decision’s conclusion on this was based, was, in summary in and in essence:

the evidence about the context for the government’s sham marriage referral and investigation scheme (of which the automated triage model formed part): the fact that ‘sham marriages’ had been identified by the government as a serious threat to immigration controls, leading to legislation to detect and investigate it; that there was organised criminal activity at work in the sphere of ‘sham marriages’, including by exploiting vulnerable people; the place of the automated triage process in the sham marriage referral and investigation scheme that had been set up, under statute; the fact that the triage process had eight criteria, or risk factors, to which referral information was subjected, and by which the government agency assessed the risk of a proposed marriage being sham (leading, if the risk was sufficiently high, to investigation); and the fact that three such criteria had been disclosed (registrar observation of unusual couple behaviour; number of shared travel events; and age difference between the couple); and

the reasoned opinions of HO and IC as to the effect on immigration controls and prevention/detention of sham marriages, if the “other” triage process criteria were disclosed. These are summarised paragraphs 18 and 19 above. In essence, the reasoning was that those involved in sham marriages, whether as criminal networks “advising” or arranging for others to enter into them, or as individuals seeking to enter into them, would, informed by knowledge of the criteria being used by the government to detect sham marriages, alter their conduct in such a way as to evade detection (and so defeat the aims of the government’s sham marriage referral and investigation scheme). That altered conduct might be by means of such persons organising things such that criteria used in the triage process were not satisfied in a given case (and yet the proposed marriage was still a sham); or by falsifying things to give the impression that criteria were not satisfied for a proposed marriage (when, in reality, they were).

36.

PLP argues that this evidence was “inadequate” because it did not include evidence of past examples of “altered conduct” of the kind just described (and achieving its desired effect, being rule evasion), in other, comparable circumstances; or evidence of such altered conduct having taken place (and achieving the desired effect), when HO disclosed three of the criteria used in the triage process.

37.

I do not accept the argument that the FTT erred in law in drawing the conclusion it did on the evidence before it. In the context of making a finding about the likelihood of certain future events coming to pass (prejudice to immigration controls etc due to disclosure of information), it was not irrational, or perverse, or otherwise erroneous in law, for the FTT to have relied on the factual/contextual and reasoned opinion evidence (from HO and IC) just summarised. Its essential logic was not difficult to fathom:

the government had set up a system to detect activity (which, by its nature, included dishonest and/or deceptive behaviour) aimed at evading immigration controls;

the efficacy of that system would be materially reduced by revealing to the people involved in this activity, how the government went about assessing whether they were being dishonest/deceptive;

that is because it is predictable that such people would use such information to try to frustrate the system and evade detection of their sham marriages.

The fact that there was no evidence of comparable “altered conduct”, and its efficacy in frustrating a comparable system, before the FTT does not, in itself, render this analysis irrational or perverse. Similarly, the fact that some information about how the government went about detecting this evasive activity had been disclosed does not render it irrational or perverse to conclude that disclosure of more such information would have the effect described.