Seferi & Anor, R (On the Application Of) v Secretary of State for the Home Department

A conclusion that a proposed marriage is a marriage of convenience does not necessarily constitute a separate reviewable decision. The relevant question is whether it produced a direct legal consequence, or instead informed the exercise of an independent power to remove or detain.

A marriage of convenience may exist despite a genuine relationship. The decisive issue is whether the parties’ predominant purpose was to obtain an immigration advantage. A removal decision remains lawful where it is primarily based on illegal entry and removability, even though removal prevents marriage in the United Kingdom and the marriage assessment informs the exercise of discretion.

The claimants challenged the defendant’s decisions concerning the proposed marriage of Mr Seferi, an Albanian national without leave to enter or remain, and Ms Zara, a Greek national with permanent residence in the United Kingdom. Following an investigation, the defendant concluded that the proposed marriage was a marriage of convenience, detained Mr Seferi and maintained removal directions.

The claimants argued that the marriage conclusion was unlawful, infringed Ms Zara’s free movement rights and rendered Mr Seferi’s detention unlawful. The central issues were whether there was a separate reviewable decision about the proposed marriage, whether that conclusion irrationally affected removal, and whether the consequential grounds could succeed.

1. Nature of the decisions. The entries made on 13 July 2017 were neutral about the genuineness of the relationship but concluded that the predominant purpose of the proposed marriage was to give Mr Seferi an immigration advantage. They therefore supported the conclusion that it was a marriage of convenience under the Immigration (European Economic Area) Regulations 2016. Later records were summaries, not freestanding decisions.
2. A conclusion about a proposed marriage can be reviewable without a formal decision letter where it is conclusive and leads directly to an adverse result. Here, however, the conclusion produced no direct consequence for the marriage. If Mr Seferi had not been detained and had retained his passport, the couple could have married in the United Kingdom. The effective prevention of the marriage resulted from detention and removal. The reasoning in Molina v SSHD [2017] EWHC 1730 (Admin) was materially distinguishable because that case involved a notice issued at the register office.
3. Removal and detention. The primary basis for removal was Mr Seferi’s status as an illegal entrant who could be swiftly returned to Albania. Those factors independently gave the defendant power to remove and detain him. The marriage assessment was secondary and concerned the discretionary question whether removal should nevertheless be pursued. The power to detain could not be used merely to prevent a marriage, but that was not the purpose of the detention.
4. Rationality. It was rational to infer from Ms Zara’s research into regularising Mr Seferi’s status, together with the surrounding circumstances, that both parties predominantly sought the immigration advantage of marriage. A conclusion that a marriage is one of convenience does not require a concluded view on whether the relationship itself is genuine. This was consistent with Sadovska v SSHD [2017] 1 WLR 2926.
5. The claimants’ first ground was unsustainable. The challenges based on free movement rights and detention consequently failed. The judicial review claims were dismissed in their entirety. The parties were invited to agree the final order and costs.