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New case law on meaning of genuine and subsisting marriage
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Several important new cases have just emerged on the subject of marriage and the immigration rules for spouses. They all deal with the evidence and burden of proof in such cases. The President of the Upper Tribunal’s Immigration and Asylum Chamber, Mr Justice Blake, has had a hand in all three.
EU sham marriage allegations
The first of these is Papajorgji (EEA spouse – marriage of convenience) Greece  UKUT 00038 (IAC), in which the tribunal notes that there is no burden on the applicant to prove that a marriage to an EEA is not a marriage of convenience. The tribunal goes on to highlight EU guidance on the issue of abuse of EU free movement rights and marriages of convenience that appeared on this blog as long ago as November 2009 (courtesy of the wonderful Elspeth Guild at the ILPA AGM that year). The guidance is very informative and helpful and the full version available here.
Meaning of and proving a “subsisting marriage”
The second case is Goudey (subsisting marriage – evidence) Sudan  UKUT 00041 (IAC). The President observes (as he does in Papajoraji) that all 115 questions in the visa application form were properly completed and goes on to find that the immigration judge erred in law by imposing his own expectations of how a couple might conduct their relationship and by failing to appreciate that the evidence that was presented was properly corroborative of the relationship. Thankfully for Luddites everywhere, the President is particularly critical of the bizarre finding that the absence of texting somehow suggested the relationship was less than genuine. He then goes on:
It may be that the ECO and the judge considered that the requirement to show a “subsisting marriage” imposes some significant burden to produce evidence other than that showing that there was a genuine intention to live together as man and wife in a married relationship. If so we conclude that that is an error of law. The authority of GA (“Subsisting” marriage) Ghana *  UKAIT 00046;  Imm AR 543 only requires that there is a real relationship as opposed to the merely formal one of a marriage which has not been terminated. Where there is a legally recognised marriage and the parties who are living apart both want to be together and live together as husband and wife, we cannot see that more is required to demonstrate that the marriage is subsisting and thus qualifies under the Immigration Rules.
Standard of proof and post decision evidence
The third case, Naz (subsisting marriage – standard of proof) Pakistan  UKUT 00040 (IAC), was an appeal by the Entry Clearance Officer to the Upper Tribunal against an appeal that had been allowed. The President reiterates that post-decision evidence is admissible if it goes to show what the situation really was at the date of decision — the Hoque and Singh  Imm AR 216 argument, for the case law historians amongst you — and upholds the judges’s assessment of the sponsor being a confused but honest witness.
All three are welcome cases, restoring some common sense and propriety to the judicial evaluation of other people’s relationships. Perhaps most importantly, the theme that underpins all three cases is that it should not be assumed as a starting point that all immigrants are liars who must somehow prove otherwise. The standard of proof is, after all, simply ‘more probable than not’.