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European Marriages - Genuineness - Burden of Proof
16 August 2017
If a non-EEA migrant marries or forms a civil partnership with an EEA national who is in the UK exercising Treaty rights (eg by working) this should give the non-EEA national free movement rights under EU law, as they then become a "family member" of the EEA national. This should give them the right to stay in the UK with their European spouse/civil partner.
European free movement law works differently from British immigration law and has a much broader and more flexible character. Unlike under British law, under European law it is not a particular issue if the non-EEA migrant is someone who is an overstayer, ie someone who has overstayed their visa. And so marriage to an EEA national can regularise a migrant’s status and transform them from someone who is an overstayer to someone who is here entirely legally.
So far so good but, things being what they are, a level of suspicion hangs in the air. Is such a marriage necessarily genuine? Or is it - to use the legal expression - a "marriage of convenience"? European free movement law itself recognises the possibility of marriages of convenience and states very clearly that such marriages do not enable a non-EEA migrant to acquire free movement rights.
So the question in any individual case for decision-makers might be: Is the marriage genuine or is it a marriage of convenience?
A useful starting point would be, do we have a reliable legal definition of a marriage of convenience? Yes, we do: the most up-to-date guidance says that a marriage of convenience is a marriage which is contracted for the predominant purpose of obtaining an immigration advantage. But, on the other hand, a marriage is not necessarily a marriage of convenience simply because it confers an immigration advantage.
So, to put it clearly, if non-EEA Person X and EEA Person Y fall deeply in love and get married, the fact that Person X thus acquires an immigration advantage does not mean that the marriage falls foul of the law.
This issue, amongst others, was explained in a recent judgement from the Supreme Court in a case called "Sadovska". Ms Sadovska is a Lithuanian national and Mr Malik is a Pakistani national. They wanted to get married and they got as far as the Registry Office but the Home Office arrived and stopped the wedding because they suspected that the marriage was not genuine.
The parties were not very happy about this and they took the matter all the way up to the Supreme Court.
Neither was the Supreme Court very happy, but for different reasons: it was dissatisfied with the way that the case had been dealt with lower down in the legal hierarchy, particularly with the way that the "burden of proof" had been considered by the First-Tier Immigration Tribunal.
"Burden of proof" sounds like one of those arcane legal concepts and to some extent it is. It is about whose "job" it is in a legal case to establish what they are seeking to establish. In some cases it might not make much difference because the evidence and arguments come from both sides and a decision-maker such as a judge considers both sides and makes a reasoned decision - and of course in some cases one side’s arguments are much stronger than the other’s and the decision-maker’s task is thus easier than it would have been otherwise.
But sometimes it might make a difference. If the issue is put starkly the point may emerge: Was it the job of the parties to show that the marriage was genuine or was it the job of decision-makers to show that it was not genuine? And in this case the issues were quite finely balanced.
In this regard the Court confirmed earlier caselaw from the higher courts. The burden of proof is on the decision-maker to establish that the marriage is not genuine, not the other way round. The First-Tier Immigration Tribunal judge had said in his decision that "in immigration appeals the burden of proof is on the appellant". This is often a correct principle but it does not apply to every situation, and it does not apply to the situation where a European marriage is alleged to be one of convenience.
The Supreme Court’s complaint was evidently not just about these particular words in the Tribunal’s decision. The Court clearly took the view that the Tribunal’s understanding - or indeed misunderstanding - of the burden of proof had affected its decision in a general way. As the Court put it regarding the judge’s decision:
"It is apparent from his determination 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 gave a quick "lecture" to the Tribunal and reminded it of the evidence that had been before it, some of which was favourable to Ms Sadovska and Mr Malik, and the Court directed that the case be heard again by the First-Tier Tribunal and a fresh decision made.
The Tribunal will be free to make whatever decision it wants to make in the new hearing, but it must of course bear strongly in mind the Supreme Court’s criticisms of the previous decision.
It is sometimes very difficult for parties to a European marriage to show that it is genuine and UKVI decision-makers are not easy to convince. But at least the courts now have a very clear direction from the Supreme Court about the way in which to approach issues of genuineness.