Rosa v Secretary of State for the Home Department

Where an applicant seeks an EEA residence card, the legal burden of proving that an otherwise valid marriage is a marriage of convenience lies throughout on the Secretary of State. The evidential burden may shift to the applicant once evidence raises a reasonable basis for suspicion. National procedural rules govern how evidence is adduced, but do not alter that allocation of the legal burden.

The relevant question is whether the marriage was entered into with the intention of circumventing immigration rules. Evidence about the parties’ later relationship may be considered because it can illuminate their intention when they married. Loose reference to whether a marriage is genuine or subsisting will not invalidate a decision where the tribunal understood and answered the correct question.

The appellant, a Brazilian national, applied under regulation 17 of the Immigration (European Economic Area) Regulations 2006 for a residence card as the spouse of a Portuguese national. The application was refused on the ground that the marriage was one of convenience. The First-tier Tribunal dismissed her appeal, and the Upper Tribunal found no material error of law.

She appealed to the Court of Appeal, arguing that the First-tier Tribunal had misallocated the burden of proof, focused on whether the marriage was genuine and subsisting, failed properly to deal with two witnesses, and based an adverse credibility finding on a mistaken understanding of the evidence. The central issue was the proper allocation of the legal and evidential burdens in a marriage-of-convenience case.

1. Appeal dismissed. The First-tier Tribunal had erred in stating that the appellant had to prove on the balance of probabilities that the marriage was not one of convenience. The legal burden remained throughout on the Secretary of State. The evidential burden could nevertheless shift to the applicant where evidence was capable of supporting the conclusion that the marriage was one of convenience.
2. That conclusion followed from the proper interpretation of the Immigration (European Economic Area) Regulations 2006 in conformity with Directive 2004/38/EC. Article 35 permitted rights under the Directive to be refused for abuse of rights, including marriages of convenience. The Commission’s guidance placed the burden on the authorities seeking to restrict those rights, while national procedural rules governed the evidence by which abuse was established. Emsland-Stärke GmbH was consistent with that approach.
3. The reasoning in Papajorgji, as endorsed in Agho, was accepted. The contrary analysis in IS Serbia was seriously confused because it combined a supposed legal burden on the applicant with an evidential threshold before the issue arose. Rule 53 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 did not alter the position.
4. The misdirection was immaterial. The previous findings in the husband’s deportation appeal, together with the evidence before the First-tier Tribunal, shifted the evidential burden to the appellant. The tribunal’s emphatic conclusion that the marriage was a marriage of convenience showed that the result did not turn on its mistaken direction about the legal burden.
5. The tribunal’s references to a marriage being genuine and subsisting were loose, but it understood that the ultimate question was whether the marriage was one of convenience. Evidence concerning the relationship before, during and after imprisonment was relevant because it could cast light on the parties’ intention when they married. The tribunal adequately dealt with the two witnesses and gave rational reasons for its adverse credibility findings. The appeal was therefore dismissed.

• Court of Appeal (Civil Division) — [2016] EWCA Civ 14: appeal from the Upper Tribunal dismissed.
• Upper Tribunal (Immigration and Asylum Chamber): dismissed the further appeal and found no material error of law in the First-tier Tribunal’s determination.
• First-tier Tribunal: dismissed the appeal against refusal of a residence card under regulation 17 of the Immigration (European Economic Area) Regulations 2006.