Sham marriages, marriages of convenience and the burden of proof
The effectiveness of freedom of movement for EEA nationals depends on the right of their partners to reside with them. However, their ability to exercise this right may be obstructed by the increasingly enthusiastic efforts of the Home Office to prevent abuse by non-genuine couples entering into ‘sham marriages’. Two recent cases provide guidance on the meaning of sham marriages, marriages of convenience and who bears the burden of proof.
Molina, R (On the Application Of) v The Secretary of State for the Home Department  EWHC 1730 (Admin) (12 July 2017))
In this case, the High Court considered whether there was a difference between a ‘sham marriage’ and a ‘marriage of convenience’.
Mr Molina, a Bolivian national who entered the UK illegally in 2007, commenced a relationship with an Italian national in October 2013, and moved in with her in September 2014. They were to be married on 19 May 2015 but immigration officers attended the Registry Office and interviewed them. Mr Molina was then served with a notice which stated:
‘…although there is a relationship going on it does not show that they have a relationship akin to marriage.[The claimant] will benefit from his union with [Ms Salguero] and even though this may not be a sham marriage it is definitely a marriage of convenience to gain Immigration advantage’. Mr Molina challenged decisions to prevent his marriage, detain him and to set removal directions by way of judicial review. He argued that a ‘sham marriage’ was synonymous to a ‘marriage of convenience’ and that as his relationship had been found to be genuine, his attempted marriage could not have been one of convenience.
Deputy Judge Grubb considered the statutory definition of ‘sham marriage’ in section 24(5) of the Immigration Act 1999, which requires:
– The absence of a genuine relationship
– One or both parties to enter into the marriage to avoid immigration law or or the Immigration Rules and/or to obtain a right conferred by law or those Rules to reside in the UK
– One or both parties to be a citizen of a country other than the UK, an EEA state or Switzerland.
He then considered the definitions of ‘marriage of convenience’ in the EEA Regulations 2016 and the definition in Article 1 of Council Resolution 12337/97’, which refers to ‘a marriage concluded…with the sole aim of circumventing the rules on entry and residence of third-country nationals and obtaining…a residence permit or authority to reside’. The latter definition had been applied by the House of Lords (R (Baiai) v SSHD  1 AC 287) and Court of Appeal (Rosa v SSHD  EWCA Civ 14).
He concluded that a ‘sham marriage’ can only be established if there is no genuine relationship between the parties; whereas the ‘hallmark of a marriage of convenience is one that has been entered into… for the purpose of gaining an immigration advantage’ [para. 64]. This means that a ‘marriage of convenience’ may exist where there is a genuine relationship, if the sole aim of at least one of the parties is to gain an immigration advantage [para. 73].
Sadovska & Anor v Secretary of State for the Home Department (Scotland)  UKSC 54 (26 July 2017)
In this case the Supreme Court considered the issue of who bears the burden of proof in relation to an alleged marriage of convenience.
Ms Sadovska is a Lithuanian citizen who had been working in the UK since February 2007 and had acquired the right of permanent residence. She began a relationship with Mr Malik, a Pakistani national, who overstayed his student visa when it expired in April 2013. They gave notice of their intention to marry but on the day they were interviewed by immigration officers and detained. Removal decisions were made for Mr Malik, as an overstayer pursuant to s.10(1)(a) of the Immigration and Asylum Act 1999; and Ms Sadovska, on the basis of abuse of rights by attempting to enter into a marriage of convenience. The First-tier Tribunal dismissed their appeal, having placed the burden of proof on the Appellants to establish that their marriage was not one of convenience, on the balance of probabilities. .
The Supreme Court found that Ms Sadovska had established rights which meant that the onus was on the respondent to prove that the grounds for her removal in Article 35 of the Directive were made out. Therefore the burden of proof was on the respondent to establish a marriage of convenience. The First-tier Tribunal had also failed to consider whether removing Ms Sadovska would be proportionate. Although Mr Malik did not have established rights, if he could produce evidence of a durable relationship, the respondent would be obliged to facilitate his entry/residence or justify any refusal to do so. The Court therefore remitted the case to the First-tier Tribunal for a re-hearing.
Baroness Hale also considered the approach to marriages of convenience, finding that earlier definitions had been moderated by the Commission’s 2014 Handbook, such that the predominant, rather than sole, purpose of the marriage should be to gain rights of entry/ residence. Incidental immigration and other benefits (e.g. tax advantages) that a marriage may bring are not relevant, if this is not the predominant purpose of at least one party to the marriage [para. 29].
The Supreme Court has confirmed that the burden is on the Home Office to prove that there is a marriage of convenience, upholding previous case-law. The correct approach to be taken to ascertain the existence of a marriage of convenience is less clear. The Supreme Court makes no reference to the earlier decision in Molina and conversely seems to use the term sham marriage as a synonym to a marriage of convenience (see para. 35). This leaves the question of whether a marriage of convenience can exist where there is a genuine relationship unsettled. In any event, it is difficult to envisage the Home Office being able to discharge the burden of proving that the predominant purpose of a marriage is to obtain an immigration advantage where the couple are in a genuine relationship.
If you are the partner of an EEA national and would like further advice regarding the possibility of making an application for a residence card, or if you would like to challenge a finding of marriage of convenience, contract our immigration barristers in London on 0203 617 9173 or via our online enquiry form.