In an Opinion delivered by Lord Carloway the Lord President yesterday 7th July 2016, the Inner House of the Court of Session refused the appeals of Violeta Sadovska and Saleem Malik against a decision of the Upper Tribunal (the ‘UT’) in a case concerning an alleged sham marriage. The Lord President's Opinion has been published under neutral citation  CSIH 51.
The appellants in this case were a Lithuanian female and a Pakistani male who had sought to marry at the Leith Registry Office in Edinburgh. Their marriage was interrupted by immigration officers and instead of the marriage proceeding as planned, the parties were interviewed separately under caution, after which it was decided that there had been an intention to enter in to a sham marriage and the removal of both parties from the UK was ordered.
The appellants were unsuccessful in their appeal at the First-tier Tribunal (‘the FTT’). The FTT was influenced by a number of discrepancies and inconsistencies in the appellants' original interviews. Ultimately, the FTT held that "the appellants were not in a relationship, and certainly not a durable one. Since the first appellant was a party to a marriage of convenience, the respondent had been justified in revoking her residence card and ordering her removal. There was no family life involving the second appellant to be protected and no argument was presented on the basis of a private life." (para 11).
The appellants appealed to the UT on the ground that the FTT had based its decision on the interviews rather than the totality of the evidence as required by ECO, Nicosia v Papajorgji  UKUT 38 (at para 39). A number of complaints about the evidence obtained from the interviews were raised. The UT found that the FTT made no error of law and dismissed the appeal.
This present appeal against the UT’s decision was raised on three grounds:
1) The UT had erred in law in rejecting a contention that the FTT had approached the burden of proof incorrectly (para 15).
2) The UT had erred in failing to hold that the respondent had not met the required standard of proof. A high degree of proof was required in the European context to prove fraud (para 16).
3) Having established the first ground of appeal that the FTT had erred in relation to burden and standard of proof, it could not be said that these misdirections had made no difference to the outcome. There had been good evidence of the appellants having a genuine relationship. The UT had failed to take into account the pressures upon the appellants at an interview, taking place instead of a wedding, without interpreters. The state had created an unnecessary atmosphere of compulsion in which to obtain evidence unfairly. This involved a breach of the common law, Article 6 of the European Convention and Article 47 of the EU Charter of Fundamental Rights (ZZ (France) v Home Secretary (No 2)  QB 820) (para 17).
The grounds in relation to the FTT having misdirected itself on both onus and standard of proof were not grounds raised with the UT. “There, the point being advanced was that the FTT had failed to abide by the guidance in ECO, Nicosia v Papajorgji  UKUT 38 (para 39) to look at the totality of the information. Papajorgji involved an application to enter the European Union on the basis of marriage to an EU national. A genuine marriage certificate existed. It is not surprising therefore that the UT held that this raised an evidential burden upon the state to prove its allegation that the marriage was a sham. However, as has often been said, once the evidence has been heard, questions of onus usually cease to be important (Sanderson v McManus 1997 SC (HL) 55, Lord Hope at 62). The view of the UT in Papajorgji (at para 39) that the question, in the Tribunal context, was whether it is more probable than not that the marriage is one of convenience “in light of the totality of the information”, accords with that dictum.” (para 20, emphasis added).
“There is no error of law in stating a general proposition that, in immigration appeals, the legal burden is on the appellant.” “...the FTT considered the information and reached a decision based upon it. That decision did not depend upon onus but upon weighing the various factors in the balance. In that context, there is only one standard of proof; that being the balance of probabilities (Scottish Ministers v Stirton 2014 SC 218, LJC (Carloway) at paras -).” (para 21, emphasis added).
Lastly, in relation to the application of Article 6 ECHR and Article 47 of the Charter, Lord Carloway held that: “In the absence of any substantive unfairness, it is not necessary to consider the application of either Article 6 of the European Convention or Article 47 of the Charter of Fundamental Rights. It may be sufficient to record that neither Article, in this context, would appear to enhance the standards of fairness applicable at common law. If the FTT had considered that the interviews had been unfairly conducted, either because of undue pressure applied by the interviewing officers or because of a lack of proper understanding of the questions or difficulty in answering because of language problems, it would have been open to it to assess that unfairness and to attach such weight to the interviews as it deemed appropriate. That is, no doubt, what the FTT did in considering that what was said at interview demonstrated the absence of a relationship leading to a genuine marriage.” (para 24).