The Court of Appeal has reiterated that the burden of proof for proving whether a marriage is a sham for immigration law purposes rests with the Home Office. The case is Agho v The Secretary of State for the Home Department [2015] EWCA Civ 1198 and it confirms the obiter remarks of former President Blake in the earlier tribunal case of Entry Clearance Officer, Nicosia v Papajorgji [2012] UKUT 00038 (IAC) (FM post: New case law on meaning of genuine and subsisting marriage).

The facts of the case might have given rise to a “reasonable suspicion” that the marriage was a sham, but this was insufficient to discharge the burden on the Home Office. FTTJ Pearce and UTJ McGeachy had erred in finding otherwise; the evidence before the tribunal was incapable of proving the Home Office case to the requisite standard even though the evidence of the appellant had “unsatisfactory features”.

The burden of proof issue was said not to directly arise in the appeal but in giving the leading judgment, Underhill LJ made clear that Papajorgji was right:

What it comes down to is that as a matter of principle a spouse establishes a prima facie case that he or she is a family member of an EEA national by providing the marriage certificate and the spouse’s passport; that the legal burden is on the Secretary of State to show that any marriage thus proved is a marriage of convenience; and that that burden is not discharged merely by showing “reasonable suspicion”. Of course in the usual way the evidential burden may shift to the applicant by proof of facts which justify the inference that the marriage is not genuine, and the facts giving rise to the inference may include a failure to answer a request for documentary proof of the genuineness of the marriage where grounds for suspicion have been raised. Although, as I say, the point was not argued before us, that approach seems to me to be correct – as does the UT’s statement that the standard of proof must be the civil standard, as explained by the House of Lords in Re B (Children) [2008] UKHL 35, [2009] 1 AC 11.

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The case also highlights the systemic problems the Home Office has in sham marriage cases and indeed in any case in which the Home Office is required to prove anything; the department seems almost incapable of organising itself to produce evidence, basically. There are exceptions, such as Operation Nexus appeals, but even here the evidence is routinely produced late, in breach of directions and in breach of any standard of procedural fairness.

Thus it was in this case too. The refusal letter refused the residence permit on the basis that the marriage was a sham, based on a single visit during the course of which the Home Office claimed “it was found that you and your EEA sponsor do not, and never have, resided at this address”. No further details were provided and no evidence was adduced by the Home Office to support this claim. As Underhill LJ says in the leading judgment:

The allegation that the Appellant’s marriage to Ms Raducanou was a marriage of convenience had not been put to him prior to UKBA’s decision. He had not been asked to provide evidence of the genuineness of the marriage nor to rebut what was said about the visit to 23 Manor Grove – as to which indeed no details whatever are given, not even the date.

In preparing for the hearing the claimant knew nothing of the case against him. Understandably, his witness statement was therefore quite short. He also produced substantial documentary evidence placing him and his wife at the claimed address.

At the hearing, the Home Office suddenly produced a police file note relating to the visit. This was allowed into evidence by Judge Pearce. The author of the note was not tendered to give evidence. Underhill LJ was unimpressed:

The note was produced by UKBA for the first time at the hearing. This was obviously unfair and does not reflect well on UKBA’s preparation of the case. The Appellant did of course know in advance of the hearing that the case against him would be based on that visit and what it was said to show; and, as appears from his statement, he had himself learnt of the visit shortly afterwards. But he knew nothing of the detail of what the police had reported. He seems in fact to have thought that UKBA was relying on things said by the lady whom he understood from his own enquiries that the officer(s) had met, which is why he focused on it in his statement; but he could not have appreciated that the real focus of the report was on what was said by the landlord and the solicitor/managing agent. Ms Nnamani [Counsel for the appellant] tells us that she protested at the late production of the report but that she did not ask for an adjournment because her instructions were to proceed. In those circumstances it is not surprising that it does not constitute a ground of appeal, but it is relevant in considering the evidence adduced by the Appellant.

The problem facing a litigant in this position is that costs will rarely if ever be awarded against the Home Office in the First-tier Tribunal, even for these kinds of litigation shenanigans. At the time of the hearing there was no power to award costs. The prospect of paying for one’s lawyers to come back for a second hearing is deeply unattractive, so even if the evidence is admitted by a judge (it is questionable whether it should be) then many will try and press on anyway.

The judge summarised the evidence, accepted the police report and fell into the trap of finding that the Home Office had been entitled to find there was a reasonable suspicion that the marriage was a sham, that the appellant had failed to prove otherwise and therefore that the appeal should be dismissed. This was the wrong approach:

I do not believe that it was right for the Judge to make a serious finding of the kind that he did, flatly contrary to the documentary evidence, on the basis of the late-disclosed, second-hand and confused evidence relied on by UKBA.

Underhill LJ concludes that the FTT therefore erred in law and that the UT erred in not so finding. He goes further, though, and criticises UTJ McGeachy for going beyond the case theory advanced by the Home Office.

Bear in mind that in the controversial case of R (on the application of Bilal Ahmed) v Secretary of State for the Home Department (EEA/s 10 appeal rights: effect) IJR [2015] UKUT 436 (IAC) the Upper Tribunal concluded that a person in the position of the appellant in this case would not be entitled to an in country appeal simply on the Home Office’s say so that the marriage was a sham. As well as causing the person concerned to wait outside the UK for the duration of the appeal process (estimated at around two years at present) this would weaken any appellant’s position considerably and made it even harder to address the routinely late and inadequate evidence from the Home Office.

Finally, if dealing with these kinds of cases you may find it helpful to refer to the EU Commission’s official Handbook on addressing the issue of alleged marriages of convenience between EU citizens and non-EU nationals in the context of EU law on free movement of EU citizens, not referenced in this decision but new since the UT decision in Papajorgji, which referenced a predecessor document.