Immigration officers stopped Ms Sadovska, a Lithuanian citizen living and working lawfully in the United Kingdom, from marrying Mr Malik, a Pakistani overstayer, and the Home Secretary decided to remove them both. The Supreme Court held that, because she already had a right of permanent residence, it was for the Home Secretary to prove that the proposed wedding was a marriage of convenience, not for her to prove that the relationship was genuine. Both appeals were allowed and the case was sent back for a fresh hearing.
Ms Sadovska was a Lithuanian citizen who had lived and worked in the UK since 2007. Mr Malik had entered lawfully on a student visa but remained after it expired. They said their relationship had begun before they gave notice of their intention to marry in Edinburgh.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
In a joint statement signed on 28 March 2014, after giving notice to marry but before moving in together, the couple described their position in these words.
We have discussed the idea of living together in depth and also have touched upon the subject of marriage, but as of yet, none of these discussions have manifested into action.
Before the ceremony the couple’s solicitors notified the Home Office and invited it to interview them. The couple also signed a lease together.
The letter was faxed on Friday 11 April. On the afternoon of the wedding, immigration officers arrived at the registrar’s office. The couple agreed to be interviewed separately in English, were detained, and so could not marry. Ms Sadovska was released soon afterwards. Mr Malik remained detained until 11 June. Each received a decision to remove. Mr Malik was treated as an overstayer who had remained after his limited leave expired. Ms Sadovska was told that her removal was justified by abuse of rights, namely an attempt to enter a marriage of convenience. The notice relied on the Immigration (European Economic Area) Regulations 2006, under which the Secretary of State could act where there were reasonable grounds to suspect such abuse and removal was proportionate.
The appeals below
The First-tier Tribunal dismissed both appeals. It said that in immigration appeals the burden lies on the appellant, on the balance of probabilities, and it required the couple to prove that the proposed marriage was not one of convenience. The Upper Tribunal and the First Division of the Inner House of the Court of Session refused their further appeals. The Inner House said that, once the evidence has been heard, questions of onus usually cease to matter, and that the tribunal had weighed all the information. The couple also complained that the interviews were unfair: they said they had been frightened by uniformed officers carrying batons and handcuffs, that neither was fluent in English, and that they had no time to obtain advice, an interpreter or evidence.
Two different legal positions
Lady Hale, with whom Lord Neuberger, Lord Kerr, Lord Clarke and Lord Reed agreed, said that the rights to be displaced differed. The 2006 Regulations were intended to implement Directive 2004/38/EC, and the Directive prevailed if the Regulations did not transpose it accurately.
Ms Sadovska had lived lawfully in the United Kingdom for a continuous period of more than five years, so article 16 gave her a right of permanent residence. A Union citizen with that right may not be expelled except on serious grounds of public policy or public security. No such ground was suggested. She could be removed only under article 35, which permits a member state to refuse, terminate or withdraw a Directive right for abuse or fraud, such as a marriage of convenience. The measure must be proportionate, and she was entitled to a challenge covering both the legality of the decision and the facts behind it.
A marriage of convenience is a term of art. It is not enough that a marriage brings an immigration advantage. Commission guidance described it as a marriage contracted for the sole purpose of obtaining free-movement rights which the person would not otherwise have, while later guidance treated obtaining entry and residence as needing to be the predominant purpose rather than the unique purpose. Unless the non-EU partner has deceived the EU citizen, that purpose must belong to both. One partner may be abusing the rules even if the other believes the relationship is genuine.
Mr Malik had no established right to remain. The interrupted ceremony did not give him the status of a spouse. He could, however, offer evidence that he was in a durable relationship, which would engage the duty to facilitate residence and require the Home Secretary to justify a refusal.
Who had to prove what
Reasonable suspicion could justify the Home Secretary taking steps, but the appeal required the facts to be fully investigated. Lady Hale agreed with the Upper Tribunal in Papajorgji that the tribunal must form its own view from the evidence. Because the Home Secretary was seeking to take away established rights, it was for her to prove a marriage of convenience, not for Ms Sadovska to prove that the relationship was genuine and lasting. The tribunal also had to decide whether expulsion was proportionate. Stopping a wedding is a different question from expelling someone who has lived and worked in the country for years and has other family here. The First-tier Tribunal had applied a burden which was generally correct in non-EU cases but wrong in hers, and it had not addressed proportionality.
Lady Hale also rejected the Inner House’s approach to the burden. The observation that onus usually ceases to matter once the evidence is in had been made in a dispute about contact with a child, where welfare was paramount and the court still had to be satisfied that an order served the child’s interests. What must be proved depends on the issue. Here the Home Secretary had to establish a narrow ground for removing established rights. The Supreme Court could not say that the correct approach would inevitably have produced the same decision for either appellant. A properly directed tribunal might reach different conclusions about them, and their cases had to be considered separately.
Guidance for the rehearing
The new tribunal could weigh discrepancies in the interviews alongside consistent answers and evidence of the relationship before notice of the wedding was given. It had to consider the conditions in which the interviews took place. An immigration advantage alone could not establish abuse by either partner.
Because EU law required a rehearing, the Court found it unnecessary to decide whether the European Convention on Human Rights added anything. Lady Hale would not accept the argument that the couple should be treated as already married merely because official action had prevented the ceremony. The state may act to prevent a sham marriage, but it must show that the marriage would indeed be a sham.
Verdict: Both appeals succeeded unanimously. The First-tier Tribunal was to rehear each case on its own facts. The Supreme Court made no finding that the proposed marriage was one of convenience and did not decide either person’s right to remain following rehearing.
Source: Sadovska and another v Secretary of State for the Home Department [2017] UKSC 54
