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There has been a spate of big cases in the last few days. I’ll deal first with what is probably the most legally significant, ZH (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1060.

In ZH the Court of Appeal have confirmed for anyone that did not already know it that Regulation 12(1)(b)(ii) of the 2006 EEA Regulations is unlawful following Metock. Remarkably, a Deputy President of the tribunal, Ms Arfon-Jones, had refused to accept this, but the Home Office conceded at the Court of Appeal that the appellant had been right. However, the Home Office attempted to prop up the tottering decision by arguing that the marriage at the heart of the case was a sham marriage and the couple should not therefore benefit from it. The Court of Appeal gave this new point short shrift and pointed out that the facts found by the tribunal were that there was a genuine relationship between the couple.

Tantalisingly, Lord Justice Aitkens ends his judgment as follows:

For those reasons, I would allow the appeal. I am conscious, however, that serious and difficult issues arise which concern: (i) the interpretation of the word “spouse” and the phrase “marriage of convenience” for the purposes of the 2006 Regulations, (ii) whether it is the person seeking an EEA family permit or the SSHD that has the burden of proving that a marriage is a “marriage of convenience” for the purposes of the 2006 Regulations; and (iii) the nature and application of the “abuse of rights” doctrine for the purposes of the 2004 Directive and, therefore, the 2006 Regulations. The points were fully argued before us. These issues will be raised at the re-hearing before the tribunal. When I prepared a first draft of this judgment I thought it would be possible and right to express some views on all three topics, in the hope of assisting the tribunal, although my views would not, strictly speaking, have been necessary for my decision on this appeal. However, having considered the issues and after discussion with Rix and Wall LJJ, I have decided that it is not sensible to give any views on these topics. On further reflection I think it will be much better that the tribunal should first find the further facts that might be relevant and, if further issues of law arise, they will be considered on appeal if necessary.

So, the wait continues…

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


2 Responses

  1. FM

    I am sure I speak for many when I say that the Deputy President of the tribunal, Ms Arfon-Jones, really needs to be made aware of your website to keep up-to-date with the latest cases.

    I forget how many times the Metock case has been articled by you, but I think this is at least the fourth times since September 2008. If Eire have had to change their laws based on EC/2008/34 a while back due to Metock, you would have thought everyone at the HO or tribunal would know the score.

    Who currently has the burden of proof in an EU marriage application to show whether or not it is a “sham marriage” per the EC Directive in your veiw?

  2. I came across this comment made by Baroness Hale of Richmond in the case of baiai v sec of the state.


    My Lords,

    34. A “sham” marriage is still a valid marriage in English law. “The
    fact is that in the English law of marriage there is no room for mental
    reservations or private arrangements regarding the parties’ personal
    relationships once it is established that the parties are free to marry one
    another, have consented to the achievement of the married state and
    observed the necessary formalities” (Vervaeke v Smith [1983] 1AC 145,
    152 per Lord Hailsham of St Marylebone LC). This has long been
    recognised as a rule of public policy. The ecclesiastical courts from
    whom our marriage law was derived did not want parties to an
    apparently valid marriage claiming that it was void because of some
    private reluctance to accept all of the obligations it entailed. How would
    one single out which obligations were essential and which not? There
    are many happily married couples who do not live together and many
    more who do not have children together. Nor are all so-called “sham”
    marriages entered into for “a nefarious purpose”; as Lord Simon of
    Glaisdale has pointed out, “Auden married the daughter of the great
    German novelist, Thomas Mann, in order to facilitate her escape from
    persecution in Nazi Germany” (Vervaeke v Smith, at p 164; for another
    example of an altruistic sham marriage see Silver v Silver [1955] 1 WLR

    A marriage of convenience is defined as ” a marriage entered SOLELY to benefit from eu law” and according to regulation 2 of the 2006 regulations anyone who enters into such marriage cannot be considered as a spouse or even a civil partner. Imagine this scenario

    x marries y for the sole benefit of obtaining some immigration advantage.Hence,x will not be considered as a spouse. If x is not considered as spouse then who is x. If x is simply considered as a partner then that means the marriage is either void or voidable.
    However,entering in marriage of convenience is not a ground for a marriage to be void or voidable according to Section 11 and 12 of the Matrimonial Causes Act 1973.Thus,x is a spouse.

    The definition of spouse is a person’s partner in marriage ie Husband or wife. The etymology of the word spouse comes from the latin word sponsus meaning betrothed man or woman ie someone who is formally engaged to marry. The case possibly signals the end of the campaign against “marriage of convenience” because it is becoming increasingly difficult to prove.