Mazhar Hassan Saeed v The Secretary of State for the Home Department

Under the Immigration (European Economic Area) Regulations 2016, a marriage of convenience is assessed by reference to its predominant purpose. A sham marriage requires the absence of a genuine relationship. The concepts overlap but are not interchangeable.

A marriage may be one of convenience even where a genuine relationship exists. Where no genuine relationship existed when the marriage was entered into, the tribunal may infer deception by a party who knowingly entered into the marriage. Tribunals should make clear findings about the existence of a genuine relationship at the material time.

The appellant, a Pakistani national, appealed against the dismissal of his application for indefinite leave to remain on the basis of long residence. The Secretary of State relied on findings in an earlier appeal that the appellant had entered into a marriage of convenience and had thereby made false representations and engaged in conduct relevant to suitability.

The First-tier Tribunal rejected arguments that a later consent order concerning an unrelated TOEIC allegation prevented reliance on those findings. It dismissed the appeal under the Immigration Rules and under Article 8. The central issues were the effect of the consent order, the distinction between a sham marriage and a marriage of convenience, and whether the appellant’s conduct justified refusal.

1. The appeal was dismissed. The consent order concerned the rescission of the section 10 decision relating to the alleged fraudulent TOEIC certificate. It did not concern, waive, or otherwise displace the unchallenged finding that the appellant had entered into a marriage of convenience. The Secretary of State had complied with the consent order by reinstating leave and allowing a further application.
2. There are different tests for a sham marriage and a marriage of convenience. A sham marriage, as defined by section 24(5) of the Immigration and Asylum Act 1999, requires the absence of a genuine relationship. Under regulation 2 of the Immigration (European Economic Area) Regulations 2016, the predominant-purpose approach applies to a marriage of convenience.
3. The concepts are not mutually exclusive. A marriage entered into without a genuine relationship may be both a sham and a marriage of convenience. A genuine relationship does not prevent a marriage being one of convenience if the predominant purpose of at least one party was to obtain an immigration advantage.
4. Tribunals determining whether a marriage is one of convenience should make clear findings about whether a genuine relationship existed when the marriage was entered into. Where a person knowingly enters into a marriage of convenience without a genuine relationship, deception may be inferred, depending on the facts.
5. The First-tier Tribunal was entitled to find, on the unchallenged earlier findings and evidence, that the appellant knowingly entered into a marriage of convenience without a genuine relationship. Its conclusion that his conduct was dishonest and sufficiently reprehensible for the purposes of paragraph 322(5) of the Immigration Rules was therefore lawful. The appellant’s evidence of a genuine relationship did not justify going behind the earlier findings.
6. The Secretary of State had not established that paragraph 322(2) applied. That made no material difference because paragraph 322(5) independently justified refusal. The historical injustice arising from the original curtailment of leave had been rectified by compliance with the consent order. The unchallenged Article 8 and proportionality findings disclosed no material error.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and maintained the First-tier Tribunal’s decision.
• First-tier Tribunal: Judge Twydell dismissed the appellant’s earlier appeal under the Immigration (European Economic Area) Regulations 2016, finding that the marriage was one of convenience. Judge Hussain later dismissed the appeal against refusal of indefinite leave to remain.
• Court of Appeal: approved a consent order on 4 February 2020 concerning the separate TOEIC-related section 10 decision.