Was the European marriage genuine? What is the test?

A remarkable, dramatic and legally interesting story has emerged from the Supreme Court (the highest court in the UK).

The story was set in Edinburgh. (Readers will no doubt be interested to know that, although there are differences between the English/Welsh and the Scottish legal systems, our immigration law is UK-wide and the Supreme Court makes decisions on immigration cases from all the UK jurisdictions.)

Ms Sadovska is Lithuanian and Mr Malik is Pakistani. They met at a disco in Edinburgh, they “spent the night together”, they carried on seeing each other, met members of each other’s families, and eventually the relationship became a steady and serious one. They decided that they wanted to get married.

Ms Sadovska was here legally, working, and thus exercising EC Treaty rights. Mr Malik originally came here legally as a student but he subsequently overstayed so he was not here legally any longer. But if they did get married then Mr Malik would have been able to apply for an EEA Residence Card, as he would then be a Family Member of Ms Sadovska under European free movement law. This would allow him to stay in the UK entirely legally with his wife.

They arranged the wedding, at Leith Registry Office, successfully but here things became dramatic. Home Office officials turned up at the Registry Office on the day of the wedding. They interviewed Ms Sadovska and Mr Malik (in English, which was of course not the first language of either of them) and were evidently dissatisfied with the outcome. They prevented the wedding from going ahead, on the basis that it was not genuine, and put both Ms Sadovska and Mr Malik in immigration detention.

The astute reader can probably work out unaided that neither party was very happy about this situation, but then things got worse. Although Ms Sadovska was subsequently released from detention, Mr Malik was kept inside. And then both of them were served with removal decision notices, ie notices saying that a decision had been made to remove them from the UK.

In Mr Malik’s case the decision was made on the basis that (a) he was an overstayer and (b) that he had dishonestly entered into a “marriage of convenience” and in Ms Sadovska’s case that she had breached European law by entering into such a dishonest marriage of convenience.

The impartial observer might be tempted to note that this course of action by the Home Office was remarkably assertive. It is quite unusual for an EEA national to be served such a notice.

But the parties were evidently made of stern stuff. They appealed the removal decisions all the way up through the Scottish legal system to the Supreme Court, which proceeded to hear the case (Sadovska and another v SSHD (Scotland)).

The judgement, delivered by Lady Hale, may have given some comfort to the parties. The court was not directly critical of the Home Office’s actions, but it was critical of the actions of the Judge at the First-Tier Tribunal who had heard the case at the appeal hearing. The court said, in regard to considering discrepancies in the parties’ accounts, “But in considering those discrepancies, the circumstances in which the interviews took place and the statement was made must be borne fully in mind”. The court also pointed out that a lot of the evidence in the case was favourable to the parties, not unfavourable.

And it also pointed out a broad legal principle – which had in fact already been established in case law by the higher courts but the Immigration Judge had not seemed to be aware of it. When a European marriage is alleged by the Home Office to be a “marriage of convenience” (ie not genuine) the onus is on the Home Office to prove it to the required standard. The onus is not on the parties to prove that it is genuine. As the court put it: “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.”

Furthermore, the court said of the Immigration Judge’s general approach to the case that “It is apparent from his determination [ie decision] that his whole approach was to require Ms Sadovska and Mr Malik to prove that their proposed marriage was not a marriage of convenience, rather than to require the Home Office to prove that it was.”

The court was thus not very satisfied with the First-Tier Tribunal’s decision and directed them to re-hear the case and make a fresh decision, but this time do it properly (actually they did not quite say that but that was the meaning).

We hope to be able to advise our readers of further developments in this interesting case.

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