The Supreme Court has ruled that the burden of proof of establishing a 'marriage of convenience' falls on the Home Office, in the case of Sadovska v SSHD (Scotland)  UKSC 54 (27 July 2017)
By Malbora Shehu of OTS Solicitors
EEA Nationals have extensive free movement rights throughout the EU. These rights extend to Non-EEA family members, such as the spouse of a qualified person or an EEA national with a right of Permanent Residence. These rights, however, cease to apply in situations where there is a “marriage of convenience”, otherwise known as a ‘sham marriage’.
The question raised in this appeal is who bears the burden of proof of establishing that a marriage is a “marriage of convenience”.
The current EEA Regulations on granting a Residence Card
The EEA Regulations state that:
“The Secretary of State must issue a residence card to a person who is not an EEA national and is the family member of a qualified person or of an EEA national with a right of Permanent Residence under regulation 15 on application and production of—
(a) a valid passport; and
(b) proof that the applicant is such a family member”
The Regulation also contains provisions for who is to be treated as a “family member”. This definition does not include a party to a marriage of convenience.
Facts of the Case
The case of Sadovska v SSHD (Scotland)  UKSC 54 concernedMs. Sadovska, a Lithuanian citizen, who had moved to the UK in 2007 and had lived and worked here lawfully thereby, acquiring a right of Permanent Residence as an EU national. Her partner, Mr. Malik, a citizen of Pakistan had entered the UK with a student visa in 2011 and had remained in the UK unlawfully after his visa expired in April 2013. The couple (Appellants) asserted that they had been in a relationship with each other since 2013, and decided to marry in 2014.
On notifying the Home Office that they intended to marry, they were interviewed and then detained before they were able to marry.
The Appellants were served with notice that they would be removed from the UK as the Home Office suspected that Ms. Sadovska had abused her EU right of residence by an attempt to enter into a marriage of convenience, contrary to regulation 19(3)(c) immigration (European Economic Area) Regulations 2006. Likewise, Mr. Malik was issued with a notice that he was a person liable to removal due to having stayed in the UK unlawfully after his student visa expired.
Had the couple married, Mr. Malik would have acquired the right of residence as the spouse of an EEA National thus allowing him to remain in the UK lawfully.
A First-tier Tribunal heard their appeal and ruled that the burden of proof was on the Appellants to establish that their proposed marriage was not a marriage of convenience.
In a unanimous decision, the Supreme Court allowed the appeal ruling that the burden of proof of establishing that the proposed marriage is one of convenience falls on the Secretary of State and not the Appellants.
At paragraph 31, Lady Hale stated that Ms Sadovska:
“...had established rights and it was for the respondent to prove that the quite narrow grounds existed for taking them away. Nor did the determination address the issue of proportionality in the right way, the decision would inevitably have been the case.”
The Supreme Court has now remitted the case for a full re-hearing by the First-tier Tribunal.
The evidence provided by the Appellants in support of their relationship, as well as the discrepancies in their interviews will be considered, at this point.
How does this impact EEA Applications?
Moving on forward, if the Home Office suspects a “marriage of convenience”, they would be required to prove this, and not the Applicant.
Nevertheless, in order to meet the EU Regulations, the Applicant must provide sufficient documentary evidence to the Home Office to illustrate that their relationship with the EEA National is genuine, and thus not one of convenience.
Obtaining a Residence Card can be a challenging process, especially when Applicants fail to provide sufficient documentation to the Home Office, and thus failing to demonstrate that their relationship is a genuine one. It is therefore imperative to ensure that Applicants provide the relevant documents in support of their application as this will increase the chances of obtaining a Residence Card.
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Posted on: Friday, 04 August, 2017