The Supreme Court has handed down its judgement in the case of Sadovska and another (Appellants) v Secretary of State for the Home Department (Respondent) (Scotland) [2017] UKSC 54.

In unanimously allowing the appeal, the Supreme Court ruled that the burden of proof of establishing a ‘marriage of convenience’ falls on the Home Office.

The court therefore concurred with the previous rulings of the Court of Appeal in the cases of Rosa v Secretary of State for the Home Department [2016] EWCA Civ 14 and Agho v The Secretary of State for the Home Department [2015] EWCA Civ 1198.

The Appellants are Ms Sadovska, a Lithuanian national, and Mr Malik, a Pakistani national. Ms Sadovska, having lived and worked in the UK since February 2007, has a right of permanent residence in the UK. Mr Malik is an overstayer.

Their wedding was due to take place on 17 April 2014. Immigration officers attended the Registrar’s Office on the day of the wedding to interview them.

After the interviews, both were detained. Mr Malik was issued with a notice that, as an overstayer, he was a person liable to removal. Ms Sadovska was issued with a notice that she was liable to removal because her removal was justified on grounds of abuse of rights, in particular that she had attempted to enter into a marriage of convenience with Mr Malik. Regulation 21B(2) of the EEA Regulations provided that

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

Ms Sadovska and Mr Malik appealed against their respective notices. The First-tier Tribunal, Upper Tribunal and the First Division of the Inner House of the Court of Session all dismissed their appeals.

In a unanimous decision, the Supreme Court allowed the appeal on the basis that the First-Tier Tribunal wrongly applied the burden of proof of establishing a marriage of convenience.

In the case of Ms Sadovska, she had clearly acquired a right of permanent residence and the removal notice issued to her because of the alleged marriage of convenience was clearly an interference with that right. It was therefore for the Respondent to prove that the marriage was actually one of convenience. Lady Hale said at paragraph 28

One of the most basic rules of litigation is that he who asserts must prove. It was not for Ms Sadovska to establish that the relationship was a genuine and lasting one. It was for the respondent to establish that it was indeed a marriage of convenience.

In this regard, she added

It is not enough that the marriage may bring incidental immigration and other benefits if this is not its predominant purpose. Furthermore, except in cases of deceit by the non-EU national, this must be the purpose of them both. Clearly, a non EU national may be guilty of abuse when the EU national is not, because she believes that it is a genuine relationship [29].

Further, in the case of Ms Sadovska, the First-Tier Tribunal failed not only to prove that it was a marriage of convenience, but also to assess whether removing Ms Sadovska would be a proportionate response to the abuse of right, as required by Regulation 21B(2) of the EEA Regulations.

The case of Mr Malik was rather different. Because the marriage had been prevented, he was not the spouse of an EU citizen and therefore did not automatically have a right of residence. As an overstayer, he had no established rights, either in EU law or in non – EU immigration law. He might however qualify as a “durable partner.” Interestingly, the fact that he had not applied for or been granted a residence card on this basis did not trouble the Supreme Court:

So if he can produce evidence of a “durable relationship”” (aa term which is not defined in the Directive)), it would be for the respondent to show that it was not or that there were other good reasons to deny him entry.

In light of these findings, the Supreme Court remitted the case for a full re-hearing by the First-tier Tribunal.

The Court’s Press Summary of the case is available here: https://www.supremecourt.uk/cases/docs/uksc-2017-0031-press-summary.pdf