The burden of proof of establishing “marriages of convenience” lies with the Home Office.
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 their partner is one of convenience. The Supreme Court ruled that the burden of proof of establishing a ‘marriage of convenience’ falls on the Home Office.
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. The couple gave notice to the Home Office of their intention to marry. On their wedding day, immigration officials arrived at the Registrar’s office and interviewed each of them separately. They were subsequently detained before they were able to marry. They were then issued with notices that they were liable to removal from the UK, 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”) and Mr Malik for being an over-stayer.
The couple were unsuccessful in their appeals to the First-tier Tribunal, the Upper Tribunal and the First Division of the Inner House of the Court of Session and went on to challenge the decisions by taking the matter to the Supreme Court.
The First-tier Tribunal’s approach required them to prove that they had not entered into a marriage of convenience and found that they had failed to do so based on inconsistencies in their interviews. This approach was found to be incorrect in regards to the requirements of EU law.
Following an analysis of the law, the Supreme Court found that the burden to establish ‘a marriage of convenience’ rests with the Secretary of State, which must fully investigate the facts and circumstances.
The Supreme Court remitted the case for a full re-hearing to the First-tier Tribunal whereby it should take into account their interviews, the circumstances in which the interviews took place as well as the evidence supporting their relationship.
Clifford Johnston’s immigration solicitors have advised and assisted clients in similar circumstances as those described in this case and welcome this decision.
A copy of the Press Summary can be found here: https://www.supremecourt.uk/cases/docs/uksc-2017-0031-press-summary.pdf