Janet Foyeke Oyekan, R (on the application of) v The Secretary of State for the Home Department

In an application for an EEA residence card based on a proxy marriage, the applicant bears the burden of establishing the marriage's validity. Whether a marital relationship exists must be determined under the law of the Member State of which the Union citizen is a national. Case-management directions in judicial-review proceedings cannot reverse that substantive burden.

Judicial review will be dismissed where the Secretary of State has provided an effective alternative remedy: a fresh refusal carrying an in-country appeal, in which the applicant may present the relevant evidence and the tribunal may determine the matter according to the applicable law.

The applicant, a Nigerian citizen, sought judicial review of a decision for her administrative removal. She had previously appealed unsuccessfully against the refusal of an EEA residence card sought through a proxy marriage to a Swedish citizen.

Permission for judicial review was granted after evidence concerning Nigerian proxy marriages was produced, with directions requesting evidence of Swedish law. Before the substantive hearing, the Secretary of State made a fresh decision refusing a residence card but conferring an in-country right of appeal, and invited withdrawal of the judicial-review proceedings.

The central issue was whether the directions or a consent order had shifted the burden of proving the marriage's validity to the Secretary of State, and whether the fresh appeal was an adequate alternative remedy.

1. The judicial-review application was dismissed. The fresh refusal of a residence card gave the applicant an in-country right of appeal. It provided a clear alternative remedy through which a First-tier Tribunal could reconsider the matter with the relevant facts and law before it.

2. The Upper Tribunal reaffirmed that Kareem (Proxy marriages - EU law) Nigeria [2014] UKUT 24 (IAC) stated the applicable law. An appellant asserting entitlement through a proxy marriage bears the general burden of proving the marriage's validity. Where that entails a question of foreign law, evidence is required.

3. As explained in TA & others (Kareem explained) Ghana [2014] UKUT 316, the existence of a marital relationship for the purposes of the Immigration (European Economic Area) Regulations 2006 must be examined under the law of the Member State from which the Union citizen derives nationality.

4. The permission-stage directions neither could nor purported to reverse that burden. They did not displace the law declared by the Upper Tribunal. Although the applicant was entitled to a short period to consider the Secretary of State's offer, she should have accepted the fresh appeal route. Any costs issue could have been raised before the Tribunal.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review of the administrative-removal decision was dismissed: [2015] UKUT 410 (IAC).
• First-tier Tribunal: The applicant's earlier statutory appeal against refusal of an EEA residence card was dismissed in May 2013. No citation is stated in the judgment.