Who must prove that a proposed marriage is a sham or one of convenience? We look at what the Supreme Court decided in a case involving a Lithuanian citizen[1].

Under Regulation 19(3)(c) and 21B of the Immigration (European Economic Area) Regulations 2006, an EU citizen with a permanent right of residence in a host member state may have that right removed ‘in the case of abuse of rights or fraud, such as marriages of convenience’. One of the appellants in a recent case is a Lithuanian citizen. She moved to the UK in 2007 and had acquired permanent residence.

The other appellant is a Pakistani citizen and the two parties claimed to have been in a relationship since 2013, deciding to marry in 2014. He came to the UK on a student visa in May 2011 but he remained here unlawfully after its expiry in April 2013. They notified the Home Office of their intention to marry, and immigration officers interviewed them separately at the registry office - then detained them before they were able to marry.

Both were served with notice that they were persons liable to removal from the UK – the first appellant on the basis that the Secretary of State had reasonable grounds to suspect the abuse of her EU right of residence by attempting to enter into a marriage of convenience, contrary to regulation 19(3)(c) Immigration (European Economic Area) Regulations 2006.

Three appeals by the appellants failed. It was decided that the burden of proof was on the appellants to show that their proposed marriage was not one of convenience. However, the Supreme Court overturned the earlier rulings and decided that it was not for her to establish that her relationship with the second appellant was a genuine and lasting one, but for the Secretary of State to establish that it fell within the definition of a marriage of convenience.

The SC also found that whilst her partner had no established rights, if he could produce evidence of a durable relationship with her, it would be for the Secretary of State to show that it was not - or that there were other good reasons to deny him entry.

The case was sent back for a full re-hearing, particularly for the purposes of investigating various inconsistencies in the interviews held by the Home Office with the appellants.

[1] Sadovska and another (Appellants) v Secretary of State for the Home Department (Respondent) (Scotland) [2017] UKSC 54

 

 

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