Sadovska and another v Secretary of State for the Home Department

Where the state seeks to remove an EEA national for attempting a marriage of convenience, it must prove the abuse. The appellant need not prove that the relationship is genuine and lasting. A marriage of convenience is one whose predominant purpose, shared by both parties except where one deceives the other, is obtaining rights of entry or residence. Incidental immigration advantages are insufficient.

The appellate tribunal must determine the facts for itself and decide whether removal is proportionate. A non-EEA partner claiming a duly attested durable relationship must produce evidence of it, but the state must justify refusing residence. The parties’ factual and legal positions require separate consideration.

The Secretary of State decided that Ms Sadovska, a Lithuanian national with permanent residence in the United Kingdom, should be removed for attempting to enter a marriage of convenience with Mr Malik, a Pakistani national who had overstayed his student visa. Immigration officers interviewed and detained them on their intended wedding day, preventing the marriage.

The First-tier Tribunal dismissed both appeals after placing the burden upon the appellants to prove that the proposed marriage was genuine. The Upper Tribunal dismissed their further appeals. The First Division of the Inner House refused their appeals in [2016] CSIH 51.

The central issues were who bore the burden of proving abuse under article 35 of Directive 2004/38/EC, what constituted a marriage of convenience, and how the tribunal should assess the distinct rights of the EEA national and her non-EEA partner.

1. Appeal allowed unanimously; case remitted for a full rehearing. Lady Hale, with whom Lord Neuberger, Lord Kerr, Lord Clarke and Lord Reed agreed, held that the tribunals had adopted the wrong approach to EU law. The Supreme Court could not conclude that correctly directed tribunals would inevitably have reached the same decisions.

2. Ms Sadovska possessed a right of permanent residence under article 16 of Directive 2004/38/EC. In the absence of serious public-policy or public-security grounds, she could be removed only if abuse within article 35 were established. Although domestic regulations permitted preliminary action on reasonable suspicion, the appeal required full examination of the facts. The tribunal had to reach its own view upon the evidence.

3. The Secretary of State asserted a ground for taking away an established right and therefore bore the burden of proving it. Ms Sadovska did not have to prove that her relationship was genuine and lasting. The general proposition that appellants bear the burden in immigration appeals did not apply to the removal of an EEA national on this narrow ground.

4. A “marriage of convenience” is a term of art. Obtaining entry or residence must be the predominant purpose of the marriage. An incidental immigration or other advantage does not suffice. Except where the non-EU national deceives the EU national, the abusive purpose must be shared by both parties. The non-EU national may therefore abuse EU rights although the EU national honestly believes the relationship to be genuine.

5. Even where abuse is proved, article 35 requires a separate assessment of proportionality. Preventing a proposed marriage shown to be one of convenience and expelling a permanent resident who has long lived, worked and maintained family connections in the host state are distinct measures. The First-tier Tribunal had failed to consider whether expulsion was proportionate.

6. Mr Malik had no established right of residence. To benefit from article 3.2, he first had to produce evidence of a duly attested durable relationship. If he did so, the Secretary of State had to show that the relationship was not durable or that other good reasons justified refusing residence.

7. On rehearing, the tribunal had to consider the circumstances of the interviews, the consistencies as well as the discrepancies in the evidence, and the evidence supporting a pre-existing relationship. It had to assess each appellant’s legal and factual case separately. The state may prevent sham marriages, but it must establish that the proposed marriage would indeed be a sham.

1. United Kingdom Supreme Court: Allowed the appeal unanimously and remitted the case to the First-tier Tribunal for a full rehearing.
2. First Division of the Inner House of the Court of Session: Refused the appellants’ appeals in [2016] CSIH 51.
3. Upper Tribunal: Refused both appeals by a determination promulgated on 9 February 2015.
4. First-tier Tribunal: Refused both appeals by a determination promulgated on 19 August 2014.