In an unreported case, Upper Tribunal Judge Stephen Smith held that a proportionality assessment should happen in marriage of convenience cases. Secretary of State of the Home Department v Ms Dora Nketia (unreported) 11 Aug 2022 EA/04841/2019 concerns the approach to be taken under the Immigration (European Economic Area) Regulations 2016 to a marriage of convenience which later evolves into a genuine relationship. 

The practice directions on unreported cases confirm that the case doesn’t have any authority and cannot be cited in other submissions. However, this is a novel point of EU law with ongoing relevance to the EU Settlement Scheme, so the arguments may be useful.

Facts

Ms Nketia has a poor immigration history dating back to 2011. The facts are lengthy, mainly due to her lack of credibility and many failed attempts to legally reside in the UK. The issue before the court relates to an application made in 2019 for a residence card under the EU Settlement Scheme. Her eligibility was based on her marriage to an EEA national living in the UK. They married by proxy in Ghana on 4 August 2018 and started living together in September 2018. As part of the application, they were asked to attend separate marriage interviews. The application was refused on the basis that the marriage was one of convenience. Ms Nketia appealed.

Once a marriage of convenience, always a marriage of convenience

The First-tier Tribunal found that there had been a marriage of convenience, but accepted that by the time they were invited to their marriage interviews they were in a genuine relationship. An additional factor considered was the child they had together. Is it possible for a marriage of convenience to cease being a marriage of convenience? The Judge found that it was a question of proportionality under EU law and based on the circumstances, he accepted that Ms Nketia could continue her marriage and enjoy the rights conferred on her as the spouse of an EEA national.

Upper Tribunal Judge Smith rejected the decision of the First-tier Tribunal. He relied on the leading case of Sadovksa v Secretary of State for the Home Department [2017] UKSC 54, stating that:

“Pursuant to Sadovska, the existence of a marriage of convenience is determined solely by reference to the intention of the parties to the marriage at the time it was contracted. Whether the relationship later evolves into a “genuine and subsisting relationship” is nothing to the point: it is a marriage of convenience, and always will be.”

Proportionality is relevant to decisions taken on the grounds of abuse of rights

Judge Smith was of the view that a married couple engaging in fraudulent immigration applications shouldn’t be allowed to benefit from generous free movement rights and other rights enshrined in EU law. He points to Recital 28, Article 28(1), Article 35 of the Free Movement Directive 2004/38/EC, which refer to guarding against abuse of rights and the considerations to be made before withdrawing rights in marriage of convenience cases. These are transposed in the Immigration (European Economic Area) Regulations 2016. Regulation 26(3) is particularly relevant:

“The Secretary of State may take an EEA decision on the grounds of misuse of rights where there are reasonable grounds to suspect the misuse of a right to reside and it is proportionate to do so.”

When considering the impact of withdrawing rights from the parties to a marriage of convenience, Judge Smith admits that although the First-tier Tribunal erred in its reasoning, it is appropriate to consider proportionality:

“Any proportionality assessment taken in relation to a marriage of convenience must assess the impact of the measure in relation to the objective of adopting measures to guard against the abuse of rights or fraud, and must feature an express consideration of whether it was appropriate to confer on the parties to a marriage of convenience rights which flow from a relationship contracted for the sole or predominant purpose of the abuse of EU law rights. Such assessments must also engage with the stated public policy objectives of the United Kingdom…. In turn, that assessment would have to be performed against the background of the marriage partners’ real world situation.”

It is accepted that a relationship may start as a marriage of convenience and turn into a genuine relationship over time. But does the fact Ms Nketia’s relationship changed from a marriage of convenience to a genuine relationship mean it would be disproportionate to withdraw those rights now?  

In short, no. The Judge found it proportionate to refuse to grant a residence card on the basis that she was a party to a marriage of convenience. The purpose of the marriage, when she entered into it, was to abuse the rights ordinarily enjoyed by non-EEA family members of EEA nationals.

Judge Smith justifies the decision, explaining that by refusing the application Ms Nketia is simply placed back into the position she was in before she submitted the fraudulent application. She has the option of making a further application for permission to stay in other immigration categories or submitting a human rights claim.

What next for proportionality assessments in marriage of convenience cases?

It’s a shame that Ms Nketia lost her rights. It is the decision of one judge on a relatively new area of law and there could, over time, be views to the contrary. This unreported case is a great first step towards introducing proportionality into a marriage of convenience cases and has ongoing relevance for the EU Settlement Scheme.

It also highlights the lack of transparency in the case reporting process. What’s the criteria for deciding what gets reported and what doesn’t? This case seems pretty important to me, so I’ll keep a lookout for any potential developments in this area that may go unreported.