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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 [2012] 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 [2012] 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 * [2006] UKAIT 00046; [2006] 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 [2012] 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 [1988] 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’.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.

Comments

22 Responses

  1. These are very good decisions. the ECOs and some IJs believe that all couples must email and text each other to prove their subsisting relationships, even when they cannot read and write! I now have something to confront them with! Thanks!

  2. I read the Papajorgji case yesterday.
    How the ECO and their ECM refused and continued to refuse an EEA visitors permit for the non-EU spouse beggars belief.

    It was refused on the “marriage of convenience” basis. Given they are married for over 12 years, have kids, live together etc, I found the HOPO not conceding when guided by the judge to do so equally dubious behaviour.

    The only detail missing was why the non-EU spouse had not successfully applied for a Greek passport. A lesson for spouses of EU nationals exercising freemovement – when you can get an EU passport ASAP.

    Maybe European Citizen can confirm this, but technically the spouse doesn’t require a visa (for up to 90 days), IMHO. The UKs position of requiring an EU visa for non-EU spouses is arguably contrary to EC38 isn’t it?

  3. European Citizen is delighted to read EC law with their early morning coffee :)

    I do not see the visa requirement as a violation of 2004/38/EC which states that (Article 5(2)):
    Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement.
    It seems to me that the family permit requirement is compatible with this article. What do you think, Mr T?

    As for getting Green citizenship: as far as I know it is very difficult as it is still very much guided by jus sanguinis. It also required permanent residence in Greece for 10 out of 12 years, dealing with Greek bureaucracy and possibly other things not mentioned in official documents.

  4. Thanks, Mr T, very useful link. It seems that the Border Manual is more “generous” than the 2006 Regulations which state that before refusing admission an opportunity to submit satisfactory evidence should be given (11(4)).
    Perhaps a permit is really not a “requirement” but the Regulation says that the person “must” be admitted if they are in possession of it.
    I think a bigger problem for me at least is the residence card: as far as I can see a residence card issued by any EU country should exempt the person from the visa “requirement”. Yet, UKBA’s website states that if a non-EEA family member is living in the UK and has a residence document confirming their right of residence here, they do not need to apply for an EEA family permit each time they enter the UK after travelling abroad. It says nothing about somebody who has a residence card issued by another EU country. I hope FM does not mind this discussion but it might help someone in the end :)

  5. Just a quick note on the travelling without a visa — Section 11(4) indeed gives an non-EEA spouse of an national the right to enter a third EU country without a visa but with an adequate proof of his/her status, such as the marriage certificate (and, preferably, the spouse). This provision mirrors 5(4) of the 2004 Directive. In practice, however, the airline will deny you boarding. The airline’s decision may be legally actionable, since their T&C usually will say sth like “you need to have all the necessary visas” and you may argue that the visa wasn’t in fact necessary, but I wouldn’t bet on that.

    I know all this, of course, because it happened to us two year ago.

  6. Oh Please Mr T, that the HOPO stuck to his or her instructions was not “dubious” there were merely doing as they were told, I am would have assume that you would be aware that as an advocate the HOPO is not there to advance their own feelings or opinions, but merely to put the position of their employer.

    It was clearly the case that the IJ and subsequently SIJ’s disagreed with the position maintained by the HOPO, but to suggest or hint at some sort of dubious or dishonest behaviour is pathetic and misleading.

    Like wise FM’s suggestion that every HOPO,SPO, ECO and ECM assumes and every applicant is a liar, is yet more over-baked hyperbole.

    The case its self is interesting reading, and a real lesson vis-à-vis the importance of considering all of the evidence in the round, I would hope that the guidance set out in this reported case is considered in future decision making (given that it will clearly be relied on when applications are refused).

    PO

    1. See in the judgement:
      “11. Mr Hopkin (senior HOPO)realistically acknowledged that the refusal of the entry clearance was indefensible on its facts, although he reserved the right to argue that …..”

      Another example of UKBA staff failing to show integrity and do the right thing.

      This part of the judgement made me laugh:
      “23. We asked Mr Hopkin whether there were any factors which would support such a suspicion (of a sham marriage) in the present case. He could not point to any, and recognised that there were none.”

  7. No criticism of Mr Hopkin is intended, I trust, Mr T. Mr Hopkin has huge integrity and I’ve got a great deal of time for him.

    1. None.
      Whoever at the UKBA instructed the HOPO (Mr Hopkins) to “defend the indefensible” is at fault.

      The logical inconsistency shown by the HOPO in para 11 raised my eyebrow.

      PO’s use of the “Nuremberg defense” doesn’t wash with me either.

  8. I certainly appreciate PO’s comments: it’s always good to hear from somebody on the other side and I can see why s/he wants to defend their colleagues.
    That said, there is a “culture of disbelief” at UKBA and this has been well-documented (though we probably don’t know the extent of it).
    But why is taxpayers’ money and UKBA expertise wasted on cases like the one above? Is it incompetence, lack of supervision or simply stubbornness?
    I think none of the criticism here is intended to be personal, there is simply a lot of frustration with the system itself.

  9. I am currently going through the initial stages of an appeal all based on the fact that the ECO is not satisfied the relationship is subsisting.i presented postcards, pictures etc, can you believe they came back saying the postcards were not dated, my question is who date postcards. Something i noted when i went to submit my documents is that the High Commission has an exhaustive list of supporting documents that they tick off the ones you provide, this is contrary to what is said on the UKBA website, reading the section with regards to supporting documents they make it look as if they do not have the comprehensive list of documents they require for the different applications. my question is why don’t they publish this list so that prospective applicants can gather all their documents together from the onset, rather than been refused for something as minor as no evidence of correspondence in the first year or your relationship. I understand the need to secure your borders, but the appeal processing times are a torture on people who love each other and just want to be together. i am now looking at possibly another 6-8 months away from my husband, bear in mind we have been separated for 6 months already.this is mere torture.

  10. The fact that Mr T is now comparing my colleague to Nazi’s shows his own prejudice, how pathetic! How sad.

  11. I would add that thin is akin to stating as a fact that all immigration lawyers are bent, on the basis of a few bad apples.

    Yes, some colleagues have become overly cynical, but not all. The ‘Culture of disbelief’ allegation / slur is not ‘well dicumented’ merely an opinion.

    Making broad statements about tend of thousands of civil servants, based on exposure to tens or a hundred or so is as ignorant as assuming that all foreign nationals are lying and on the make.

    FM, mostly provides measured and detailed analysis, Mr T sadly displays ignorance, stupidity and prejudice.

  12. PO,

    Don’t forget that UKBA’s own code on practice for keeping children safe warns officers to make sure children “should not feel that they are up against a culture of disbelief”.

    Anyway, what can’t we just have a useful exchange? I asked a question: in your opinion, why do we encounter cases where clearly taxpayers’ money and UKBA expertise are wasted (e.g. the case cited above)? I’m not saying this is always the case of course but it does happen.

    1. PO
      From Wiktionary
      Nuremberg defense (plural Nuremberg defenses)
      1.(idiomatic, law, ethics) An explanation offered as an intended excuse for behaving in a criminal or wrongful manner, claiming that one behaved in that manner because one was ordered by others to do so.

      Other than that I don’t respond to Ad Hominem attacks.

    2. Mr T, I really don’t want to blacklist you after all this time, but your latest comments are outrageous and inappropriate. I’d have said so sooner but have been really busy. Any more of this and I’ll delete the comments and block you. I suggest an apology is in order and that you reconsider comparing civil servants acting in a professional capacity on instructions from their employer with Nazi officers who were tried, convicted and hanged for what they had done. It is a bonkers comparison and lowers the tone of debate.

  13. Could anyone help me????? I need to apply for my husbands visa but I cant apply befor may as i’ve just start workin! But theres alot of rumours about the law changin in april wat istchanging? Help me out pls!!