The recent Supreme Court judgment of Sadovska and another v Secretary of State for the Home Department  UKSC 54 considers the issue of where the burden of proof lies in establishing that a marriage between an EEA national and her partner is one of convenience.
The case concerned Ms Sadovska, an EEA national who had acquired a permanent right of residence in the UK and her partner, Mr Malik, a national of Pakistan who initially came to the UK on a Tier 4 student visa and overstayed on his visa. They met in October 2012, their relationship commenced in February 2013 and they decided to get married in January 2014.
In March 2014, the couple gave notice to the Home Office of their intention to marry the following month. On their scheduled wedding day, immigration officials arrived at the Registrar’s office, interviewed each of them separately and detained them before they were able to marry. Each were then issued with notices that they were liable to removal from the UK, Mr Malik being an over-stayer and Ms Sadovska for attempting to enter into a marriage of convenience contrary to regulation 19(3)(c) of the Immigration (European Economic Area) Regulations 2006 (“EEA Regulations”).
Following the appellants’ unsuccessful appeals to the First-tier Tribunal, the Upper Tribunal and the First Division of the Inner House of the Court of Session, they appealed to the Supreme Court.
The approach taken by the First-tier Tribunal was to require the appellants’ to prove that their marriage was not a marriage of convenience and that they failed to do so based on inconsistencies in their interviews. The Supreme Court found that this was the wrong approach to take as regards the requirements of EU law.
Following an analysis of the law, the Supreme Court found that as an EEA national with a right of permanent residence, Ms Sadovska could only be removed from the UK if it is established that she entered, or attempted to enter, into a marriage of convenience and the burden to establish this rests with the Secretary of State, which must fully investigate the facts and circumstances. The interpretation of “marriage of convenience” under the Directive giving effect to the EEA Regulations, means that the marriage is contracted for the predominant purpose of obtaining the right of entry and residence and that any removal must be a proportionate response to the abuse of rights established [29-31]. It was found that the First-tier Tribunal failed to address the issues in this way.
For Mr Malik, as he had not acquired a right of residence as a family member under the EEA Regulations and was an over-stayer, ‘he had no established rights, either in EU law or in non-EU immigration law’ and would therefore ‘have to show that he has a “durable relationship” with Ms Sadovska’ and it would then be up to the Secretary of State ‘to show that it was not or that there were other good reasons to deny him entry’ .
The Supreme Court determined that the appeal should be allowed and sent back to the First-tier Tribunal for a full re-hearing, whereby the First-tier Tribunal should take into account their interviews, together with the circumstances in which it took place as well as their evidence supporting a genuine relationship. The burden of proof falls on the Secretary of state in proving that the proposed marriage is one of convenience.