Home Secretary must show EU national's proposed marriage one of convenience
Where it is alleged that a proposed marriage between an EU citizen with a permanent right of residence in the UK and an illegal overstayer is one of convenience, the burden of proof is on the Home Secretary, and not on the couple to establish the contrary, the UK Supreme Court ruled yesterday.
Five judges unanimously allowed an appeal by Violeta Sadowska and Saleem Malik against a decision of the Court of Session and ordered a rehearing by the First-tier Tribunal of the issue of marriage of convenience. The tribunal had previously upheld a decision of the Home Secretary ordering the removal from the UK of both appellants, and this decision had been affirmed by the Upper Tribunal and the Court of Session.
Ms Sadovska, a citizen of Lithuania, had moved to the United Kingdom in 2007 and had lived and worked here lawfully since, acquiring a right of permanent residence as an EU citizen pursuant to Directive 2004/38/EC. Mr Malik, a citizen of Pakistan, had entered the UK with a student visa in May 2011 and had remained here unlawfully after his visa expired in April 2013. They maintained that they had been in a relationship with each other since February 2013, and decided to marry in January 2014. On notifying the Home Office that they intended to marry on 17 April 2014, they were interviewed and then detained before they were able to marry. Both were then served with notice that they were liable to removal, Ms Sadovska by giving the Secretary of State reasonable grounds to suspect the abuse of her EU right of residence by attempting to enter into a marriage of convenience, contrary to reg 19(3)(c) of the Immigration (European Economic Area) Regulations 2006.
The First-tier Tribunal held that the burden of proof was on the appellants to establish that their proposed marriage was not a marriage of convenience, and that they had failed to do this, having regard to the inconsistencies in their accounts at interview.
Lady Hale, with whom Lord Neuberger, Lord Kerr, Lord Clarke and Lord Reed agreed, said it was important to identify the different rights the appellants individually enjoyed, and thus what the Secretary of State needed to establish in order to remove them. Ms Sadovska had a right of permanent residence in the UK and could not be expelled unless she had abused her rights within the meaning of article 35 of the Directive. European Commission guidance explained that a marriage of convenience was a marriage contracted with the predominant purpose of enjoying the right of free movement. It was not enough that the marriage might bring incidental immigration and other benefits, and the predominant purpose had to be the purpose of both parties.
Mr Malik was liable to be removed as an overstayer, but following the proposed marriage would have acquired a right of residence in the UK as a family member of an EU national working here. The Directive recognised "a durable relationship, duly attested". Both appellants also enjoyed rights under articles 8 and 12 of the European Convention on Human Rights to a private and family life, and to marry and found a family. While Ms Sadovska was liable to removal on the basis stated, she was entitled to an appeal where the facts and circumstances were fully investigated. The tribunal had to form its own view of the facts from the evidence presented. It was not for her to establish that her relationship with Mr Malik was a genuine and lasting one, but for the Secretary of State to establish that it fell within the definition of a marriage of convenience.
The tribunal had also to be satisfied that her removal from the country where she had lived and worked for so long with other family members would be a proportionate response to the abuse of rights, rather than merely the prevention of the marriage. As the tribunal had not analysed Ms Sadovska’s rights this way, it was not possible for the Supreme Court to conclude that the Secretary of State had proved that the narrow grounds for taking away her established rights existed. Mr Malik had no established rights but if he could produce evidence of a durable relationship with Ms Sadovska, it would be for the Secretary of State to show that it was not, or that there were other good reasons to deny him entry. Again, the Supreme Court could not conclude that, had his case been approached in the right way, the outcome would have inevitably been the same.
Lady Hale observed that at the rehearing the inconsistencies in the appellants’ interviews would be considered along with their evidence supportive of a genuine relationship dating back several months; the circumstances in which the interviews took place would also be taken into account. The appellants’ ECHR rights did not add anything further to their claims in the light of this conclusion. Such rights would not in any event prevent a state from taking steps to prevent sham marriages, if it could show that the marriage would indeed be a sham.