Marriage of Convenience in UK Law

As we have said, these three reasons taken together lead us to the view that the burden of proving that a marriage is not one of convenience lies on the appellant. We would, however, also associate ourselves with the wording of the Council Resolution to this extent. Not every applicant needs to prove that his marriage is not one of convenience. If there is no evidence that could support a conclusion that the marriage is one of convenience, the appellant does not have to deal with the issue.

I have already held that the legal burden of proof on the issue of marriage of convenience lies throughout on the Secretary of State. It follows that the First-tier Tribunal was indeed in error in proceeding on the basis that it was for the appellant to show on the balance of probabilities that the marriage was not a marriage of convenience. This was not one of those rare cases that turns on where the legal burden of proof lies.

It may be useful to contrast a marriage of convenience with a "genuine" marriage (indeed, Underhill LJ treated them as antonyms at paragraph 6 of his judgment in Agho), but the focus in relation to a marriage of convenience should be on the intention of the parties at the time the marriage was entered into, whereas the question whether a marriage is "subsisting" looks to whether the marital relationship is a continuing one.

What it comes down to is that as a matter of principle a spouse establishes a prima facie case that he or she is a family member of an EEA national by providing the marriage certificate and the spouse's passport; that the legal burden is on the Secretary of State to show that any marriage thus proved is a marriage of convenience; and that that burden is not discharged merely by showing "reasonable suspicion".

Furthermore, although the Regulations permit the respondent to take steps on the basis of reasonable grounds to suspect that that is the case, Ms Sadovska is entitled to an appeal where the facts and circumstances must be fully investigated. That must mean, as held in Papajorgji, that the tribunal has to form its own view of the facts from the evidence presented. One of the most basic rules of litigation is that he who asserts must prove.

In summary, our understanding is that, where the issue is raised in an appeal, the question for the judge will therefore be ‘in the light of the totality of the information before me, including the assessment of the claimant's answers and any information provided, am I satisfied that it is more probable than not this is a marriage of convenience?’.

It was common ground between the parties that it was for the Secretary of State to prove that the marriage was a marriage of convenience. This concession is, presumably, based on the general position in common law that a person who makes an assertion has to prove it.