This blog has previously discussed the difficulties that arise from the different definitions of “sham marriage” and “marriage of convenience”. The Upper Tribunal has now returned to this topic in the recent decision of Saeed (Deception – knowledge – marriage of convenience) [2022] UKUT 18 (IAC).

The facts

Mr Saeed, a Pakistani citizen, entered the UK as a student in 2008. He held leave until 2014, when the Home Office made a decision to remove him under section 10 of the Immigration and Asylum Act 1999 because of an allegedly fraudulent English language test certificate. He challenged that decision by way of judicial review.

While the judicial review was pending, in October 2016, Mr Saeed applied for an EEA residence card as the unmarried partner of a Lithuanian national. This application was refused; Mr Saeed exercised his right of appeal. Meanwhile, he married his partner, in August 2017.

The First-Tier Tribunal dismissed his appeal, finding that he was in a marriage of convenience, but that he had not submitted a fraudulent test certificate.

By this point his judicial review was before the Court of Appeal. This was settled in February 2020, with the Home Office accepting the tribunal’s finding that the certificate was not fraudulent. His leave was reinstated.

Mr Saeed then sought indefinite leave to remain on the basis of ten years’ long residence. This was refused. The Home Office said that the finding that he was in a marriage of convenience meant that he had made false representations to obtain leave to remain. Mr Saeed maintained that he was in a genuine relationship and appealed this refusal. The First-tier Tribunal dismissed the appeal.

Marriages of convenience

In the Upper Tribunal, Mr Saeed argued among other things that the judge had failed to distinguish between a sham marriage and a marriage of convenience. Being in a marriage of convenience did not mean that a false representation had been made and did not amount to “sufficiently reprehensible conduct” to justify refusal of his long residence application.

A sham marriage is defined under the Immigration Acts as one in which there is no genuine relationship between the parties to the marriage (or civil partnership), and one or both of the parties enter into the marriage for the purpose of circumventing UK immigration control.

A marriage of convenience is defined as one entered into for the purpose of circumventing immigration laws.

As a result, a couple in a genuine relationship cannot be in a sham marriage, but curiously they can still be in a marriage of convenience. But in both cases, the purpose of the marriage is key. The question is whether the predominant purpose is to circumvent immigration laws.

The headnote of Saeed summarises the state of the law as follows:

(i) There are different tests to determine whether a marriage is a “sham” or whether a marriage is one of convenience under EU law, in this case the 2016 Regs. The former is defined in s.24 (5) of the 1999 Act (see Molina) and requires the absence of a genuine relationship. In respect of the latter, the predominant purpose test applies (see Sadovksa).

(ii) The terms “sham marriage” and “marriage of convenience” are not mutually exclusive. The absence of a genuine relationship at the time of the marriage being entered into would render the marriage one of convenience (and a “sham”); however, if there is a genuine relationship at the time of the marriage, while it could not be categorised as a “sham” marriage, it may still amount to a marriage of convenience (depending on the predominant purpose).

(iii) When deciding whether a marriage is one of convenience under the 2016 Regs, a Tribunal should make clear findings about whether it is accepted that there was a genuine relationship between the parties to the marriage at the material time (the time of the marriage).

(iv) There is deception deployed by a person who knowingly enters into a marriage of convenience with another in the absence of a genuine relationship. In the absence of a genuine relationship at the relevant time, a Tribunal may be entitled to infer that deception was exercised by the Appellant or the Sponsor or both. Depending on the facts there may be deception in a marriage of convenience.

The decision considers and quotes at length from R (Molina) v SSHD [2017] EWHC 1730 (Admin). In Molina, the High Court held that a marriage of convenience can exist even where there is a genuine relationship and where there is no deception as to the existence of the relationship. But Molina was appealed to the Court of Appeal and set aside by consent in 2018. It is not clear whether the Upper Tribunal was aware of this.

The statement of reasons accompanying the Molina consent order is worth considering in full. It explains, for example, that for immigration reasons a genuine couple might decide to wed much sooner than they had originally thought they would, but that is not necessarily a marriage of convenience.

The success of the appeal in Molina had provided hope that defining marriages of convenience to include couples in a genuine relationship would be challenged further. Saeed reminds lawyers that they will have to continue to advise clients in genuine relationships that they can be caught out.

No genuine relationship here

As far as Mr Saeed was concerned, the tribunal held that there was in any event “no evidence” before the original judge “that the parties were in a genuine relationship”. As there was no genuine relationship, the marriage was a sham and there had been deception.

The decision explains that whilst Mr Saeed’s witness statement asserted that his was a genuine relationship, the previous tribunal findings were not actually challenged.

Judge Twydell made the following findings: the Appellant had not established that he was living with the Sponsor as claimed; there was little evidence of “joint spending”; there had been limited discussion between the Appellant and the Sponsor about their religious beliefs; it was surprising that the Appellant had not spoken to the Sponsor’s mother on the ‘phone; they (the Appellant and the Sponsor) had opposing views about whether the Sponsor would return with the Appellant to Pakistan; and that they had had little discussion about what the judge found was to be such an important issue. Neither had produced their mobile phones having been given the opportunity to do so.

It appears that unfortunately no further evidence was submitted to address these issues. It is important for practitioners to remember that sham marriage/marriage of convenience findings can be revisited if there is “new and significant information has come to light” since the investigation took place: see the Home Office guidance on Partners, divorce and dissolution.