Entry Clearance Officer, Nicosia v Lindita Papajorgji

A third-country national applying as the spouse of an EEA national does not bear an initial burden of proving that the marriage is not one of convenience. Under the Citizens Directive, the decision-maker must first have objective material giving reasonable grounds for suspicion.

Absent such grounds, production of the documents required by the Directive entitles the applicant to a family permit. A failure to supply photographs or similar material which was not requested cannot itself create a reasonable suspicion. Once a properly founded suspicion arises, the applicant may be required to address it. Ultimately, exclusion for a marriage of convenience requires the allegation to be established on the balance of probabilities.

The claimant, an Albanian national, applied in Greece for an EEA family permit to accompany her Greek husband on a short visit to the United Kingdom. She supplied her passport, marriage certificate and evidence of her husband’s nationality and intended travel.

The Entry Clearance Officer refused the application under regulation 12 of the Immigration (EEA) Regulations 2006, treating the absence of photographs, joint documents and similar material as showing that the marriage was one of convenience. The First-tier Tribunal allowed her appeal on the papers. The Entry Clearance Officer appealed, contending that the judge had relied on an authority displaced by IS (marriages of convenience) Serbia [2008] UKAIT 31.

The central issue was whether an EEA spouse must initially prove that the marriage is not one of convenience, and whether the material before the Entry Clearance Officer justified an investigation or refusal.

1. Appeal dismissed. The First-tier Tribunal reached the correct result. The refusal was not in accordance with the law, and the family permit was directed to be issued promptly.

2. The Tribunal agreed with IS (marriages of convenience) Serbia [2008] UKAIT 31 only insofar as it recognised an initial evidential burden on the state. There is no burden at the outset on an applicant to prove a negative. Before an application may be suspended for investigation, the decision-maker must possess evidence capable of providing reasonable grounds to suspect a marriage of convenience.

3. Where no such suspicion exists, a spouse establishes entitlement by providing the documents specified by the Citizens Directive, including those in Article 10. A national authority cannot impose general documentary criteria beyond the Directive. It was unfair and perverse to infer suspicion from the absence of photographs and joint documents where neither the application form nor published guidance required them.

4. If reasonable suspicion does arise, the applicant should be given an opportunity to respond with material capable of dispelling it. The Tribunal reserved for a future case the precise question whether a formal legal burden shifts to the applicant. It held, however, that a person is disqualified only where the marriage of convenience is established. The decision-maker’s honest suspicion, or an adverse inference from a failure to supply available material, cannot alone be decisive.

5. The proper appellate question is whether, on the totality of the information, it is more probable than not that the marriage is one of convenience. On the facts, the long marriage, shared household, children and proposed short visit supplied no basis for suspicion.

6. Further evidence rebutting an allegation of a marriage of convenience was admissible. EEA family-permit appeals must give effect to the procedural safeguards required by the Directive.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the Entry Clearance Officer’s appeal and directed prompt issue of the family permit.
• First-tier Tribunal: allowed the claimant’s appeal against refusal of the EEA family permit on 4 February 2011.