Burden of proof on the Secretary of State to prove sham marriages

By SeanMack - EN wikipedia / SeanMack, Public Domain, https://commons.wikimedia.org/w/index.php?curid=731225

By SeanMack - EN wikipedia / SeanMack, Public Domain, https://commons.wikimedia.org/w/index.php?curid=731225

Earlier this week, the Supreme Court held that the burden of establishing whether a proposed marriage is of convenience, otherwise known as a ‘sham marriage’, falls on the Secretary of State.

In the case of Sadovska and another (Appellants) v Secretary of State for the Home Department (Respondent) (Scotland) [2017] UKSC 54 the Supreme Court unanimously allowed the appeals of Ms Sadovska and Mr Malik and remitted the case for a full re-hearing by the First-tier Tribunal.

Ms Sadovska, a citizen of Lithuania, and Mr Malik, a citizen of Pakistan, had asserted that they had been in a relationship since 2013 and made the decision to marry in 2014. They notified the Home Office of their intention to marry.  At the Registrar’s Office the couple were detained before they could proceed with their marriage. They were both served with notices that they were liable to removal from the UK.

Under regulation 19(3)(c) and 21B of the Immigration (European Economic Area) Regulations 2006, if the Secretary of State had reasonable grounds to suspect that a person is abusing their EU right of residence by entering a marriage of convenience, that person may be liable to removal. This power is now contained in regulation 23(1) of the Immigration (European Economic Area) Regulations 2016, when read with paragraph 6 of schedule 1. Ms Sadovska was accused of attempting to enter into a sham marriage and was issued with a notice that she was liable to removal. Her partner was also liable to removal due to having stayed in the UK unlawfully after his student visa had expired. Had the marriage occurred he would have acquired a right of residence as the spouse of an EU citizen.

An appeal was lodged at the First-tier tribunal, which dismissed the case. As did the Upper Tribunal and Inner House of the Court of Session. The Supreme Court eventually allowed the appeal on the basis that:

  1. The tribunal should not have placed the burden of proof on Ms Sadovska to prove her relationship was genuine and subsisting; the burden was on the Secretary of State to prove the marriage was one of convenience;  and
  2. The tribunal had not considered whether removing Ms Sadovska from the UK would be a proportionate response to the abuse of rights (assuming this was established).

At paragraph 31, Lady Hale stated that Ms Sadovska:

“...had established rights and it was for the respondent to prove that the quite narrow grounds existed for taking them away. Nor did the determination address the issue of proportionality in the right way, the decision would inevitably have been the case.”

The Secretary of State has a broad discretion to decide whether to take action against a suspected marriage of convenience. The Supreme Court’s confirmation that the burden of proving that a marriage is one of convenience falls on the Secretary of State is a welcome protection against excessive and unreasonable action being taken against genuine couples who wish to get married.