The burden of proof of establishing “marriages of convenience” lies with the Home Office.
The recent judgement by the Supreme Court 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 found that the burden of proof of establishing a ‘marriage of convenience’ is the responsibility of the Home Office.
The case concerned, an EEA national, Ms Sadovska, who had secured a permanent right of residence in the UK and Mr Malik, her partner, a national of Pakistan. The couple gave notice to the Home Office of their plans to marry. On the day of their wedding, immigration officials turned up at the Registrar’s office and proceeded to interview each of them separately, They to their detention before the marriage was able to proceed. They were then issued with notices that they were liable to removal from the UK, Mr Malik for staying in the country beyond the terms of his visa and Ms Sadovska for endeavouring to enter into a marriage of convenience contrary to regulation 19(3)(c) of the Immigration (European Economic Area) Regulations 2006 (“EEA Regulations”).
They were both unsuccessful in their appeals to the First-tier Tribunal and the Upper Tribunal, as well as in their appeals to the First Division of the Inner House of the Court of Session and proceeded to challenge the decisions by taking the matter to the Supreme Court.
The First-tier Tribunal’s approach necessitated them to prove that they had not entered into a marriage of convenience and found that based inconsistencies in their interviews, they had failed to do so. This approach was found to be flawed in regards to the requirements of EU law.
Following an analysis of the law, the Supreme Court ruled that the burden to establish ‘a marriage of convenience’ rests with the Secretary of State, which must comprehensively investigate the circumstances and facts surrounding such a case.
The Supreme Court remitted the case to the First-tier Tribunal for a full re-hearing, whereby it should consider their interviews, the circumstances in which the interviews took place as well as any relevant 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