Agho v The Secretary of State for the Home Department

Where the Secretary of State alleges that a marriage to an EEA national is a marriage of convenience, reasonable suspicion alone does not discharge the burden of proof. The question is whether, on the totality of the evidence and applying the civil standard, the marriage was more probably than not entered into without an intention of matrimonial cohabitation and primarily to secure a right to reside.

Strong and varied contemporary documents showing a shared address cannot properly be displaced by limited, late-disclosed, second-hand and confused evidence. An applicant’s inability to resolve doubts raised by that evidence does not itself prove the Secretary of State’s positive case.

The appellant, a Nigerian national, married a French national and applied for a residence card under the Immigration (European Economic Area) Regulations 2006. The Secretary of State refused the application, alleging in substance that the marriage was one of convenience because the couple had not lived at their stated address.

The First-tier Tribunal accepted that allegation and dismissed the appeal. The Upper Tribunal upheld its decision. The appellant appealed on the grounds that the First-tier Tribunal’s conclusion was unavailable or inadequately reasoned and that the Upper Tribunal should alternatively have admitted and acted upon fresh evidence.

The central issue was whether the evidence could support the finding that the couple had not lived together at the stated address and that their marriage was therefore one of convenience.

1. Appeal allowed. The Upper Tribunal was wrong not to overturn the First-tier Tribunal’s decision. The contemporary documents established a strong prima facie case that both spouses lived at the stated address. Displacing that inference required compelling evidence of an elaborate deception.

2. A marriage of convenience was a marriage entered into without an intention of matrimonial cohabitation and primarily to secure a right to reside. In a tribunal appeal, the question was whether, considering the totality of the information, the marriage was more probably than not one of convenience. The legal burden rested on the Secretary of State, although proof of suspicious facts could shift an evidential burden to the applicant. Reasonable suspicion alone did not discharge the legal burden. The applicable standard was the civil standard explained in Re B (Children) [2008] UKHL 35.

3. The police report could not overcome the documentary evidence. The absence of the spouses when the officer visited at 7.30 pm established nothing. The visitor whom he encountered disclaimed knowledge of the occupants. The reported communications with the landlord and managing agent were second-hand, obscure and potentially confused, particularly because first names or incorrect names may have been used.

4. The report was produced for the first time at the First-tier Tribunal hearing. The appellant therefore had no prior opportunity to answer its details. A serious finding, flatly contrary to numerous and varied contemporary documents, could not properly rest upon such limited, late-disclosed and confused material.

5. The Upper Tribunal also relied on matters outside the Secretary of State’s case theory, including a suggestion that the spouses might have occupied separate rooms. There was no evidence supporting its assumption about what another tenant would have known.

6. The further-evidence ground did not require determination. Since the marriage was undisputed and its genuineness had not been successfully impugned, the appellant was entitled to a residence card.

1. Court of Appeal (Civil Division): Allowed the appeal in [2015] EWCA Civ 1198, overturned the Upper Tribunal’s decision and held that the appellant was entitled to a residence card.

2. Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appeal, holding that the First-tier Tribunal had been entitled to reach its conclusion on the evidence.

3. First-tier Tribunal: Found on the balance of probabilities that the marriage was one of convenience and dismissed the appeal against refusal of the residence card.