EU Family Members – marriage of convenience ‘or’ inconvenience for the Home Office
In the recent Supreme Court case of Sadovska & Another v Secretary of State for the Home Department  UKSC 54, the court had to rule on the issue of where the burden of proof lies between the parties in a case as to whether any marriage is a marriage of convenience under EU law. The Supreme Court ruled that the burden of proof is on the Home Office.
The case concerned Ms Sadovska a national of Lithuania who came to the UK lawfully in February 2007 and who has since been working in the UK and Mr Malik, a national of Pakistan who came to the UK on a student visa in May 2011. Mr Malik’s visa expired on 15 April 2013 and he remained in the UK unlawfully. The couple met in Edinburgh in October 2012 and started a relationship. On 25th March 2014, they published their notice of intention to marry on 17 April 2014. On the day of their wedding, the Home Office went to the registry office and before the marriage could take place interviewed the couple for several hours. After the interviews, the Home Office under their immigration powers detained Mr Malik and the couple was therefore unable to marry.
The Home Office issued Ms Sadovska with a removal decision under the EEA regulations because the Home Office concluded that her removal was justified on the grounds that she had abused her free movement rights under EU law, namely that she attempted to enter into a marriage of convenience with Mr Malik. The couple appealed their respective decisions to the First-tier Tribunal which heard their appeals together.
Their appeals were dismissed and they appealed further to the Supreme Court on two issues:
- Where the burden of proof lies in cases where the Home Office decides to remove a person who they believe has entered into a marriage of convenience.
- The fairness of the interview -The Home Office conducting an interview on the day of the wedding, without giving time to seek advice and in their second language.
On the first issue, the First-tier Tribunal determined that the burden was on Ms Sadovska and Mr Malik to prove that their proposed marriage was not a marriage of convenience. The Supreme Court ruled that this approach was incorrect as Ms Sadovska has established rights under EU law in that she had the right of permanent residence in the UK because she had worked for 5 years. The Home Office could therefore only take away her established rights if they could succeed in establishing that her removal was justified because she had attempted to enter into a marriage of convenience.
One of the most basic rules of litigation is that he who asserts must prove. Therefore, the Supreme Court reasoned that the burden was on the Home Office to show that Ms Sadovska was trying to enter into a marriage of convenience. The Supreme Court also ruled that a marriage of convenience is where both parties marry for the predominant purpose of gaining rights of entry or residence under EU law. Both parties have to hold that purpose. If one of them enters into the relationship genuinely then it cannot be considered a marriage of convenience. Also, just showing that it is a marriage of convenience is not enough. The Home Office and any appeal court would also need to consider, looking at all the circumstances whether removing someone because they had attempted to enter into a marriage of convenience is proportionate.
In light of its reasoning, the Supreme Court therefore held that the case would have to be reheard again by the First-tier Tribunal adopting the correct approach as set out by the Supreme Court in its judgment, because the decision of the First-tier Tribunal would not have inevitably been the same had the correct approach been adopted. The Supreme also ruled that it was therefore unnecessary for it to consider the second issue.
Our Immigration solicitors and caseworkers specialise in EU residence applications and can advise and assist in relation to applications and appeals on EU law grounds. We have many years of experience dealing with alleged marriage of convenience cases similar to the Sadovska case.
If you need any help please book an appointment today with one of our specialist lawyers.