Collins Agho v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Vos,Lord Justice Moore-Bick,Re |
| Judgment Date | 26 November 2015 |
| Neutral Citation | [2015] EWCA Civ 1198 |
| Date | 26 November 2015 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2013/3565 |
[2015] EWCA Civ 1198
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the Upper Tribunal (Immigration and Asylum Chamber)
Upper Tribunal Judge McGeachy
IA/05994/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
(Vice President of the Court of Appeal – Civil Division)
Lord Justice Underhill
and
Lord Justice Vos
Case No: C5/2013/3565
Ms Amaka Nnamani (instructed by Samuel Louis Solicitors) for the Appellant
Mr Mathew Gullick (instructed by the Government Legal Department) for the Respondent
Hearing date: 28 th July 2015
INTRODUCTION
The Appellant, whose full name is Collins Mohammed Agho, is a Nigerian national, born on 13 February 1984. He entered the UK lawfully as a student on 25 April 2010. On 18 November 2011 he married a French national named Kozo Bernadette Raducanou.
On 2 April 2012 the Appellant applied to the Respondent, in accordance with the Immigration (European Economic Area) Regulations 2006, for an EEA residence card, claiming that he was a family member of Ms Raducanou, who was exercising her Treaty rights in the UK. The application was made with the assistance of a firm of immigration advisers, using the standard "EEA2" form. The form gave both his address and that of Ms Raducanou as 23 Manor Grove London SE15 1EQ, which is in Peckham.
That application for a residence card was refused, no less than ten months later, by letter from the UK Border Agency ("UKBA") dated 7 February 2013. Two reasons were given. The first reads as follows:
"In order to qualify for a residence card, you are required to provide evidence that you are related to your EEA sponsor as claimed. As evidence of this, your representative supplied a marriage certificate. However, a visit was conducted to your address, and it was found that you and your EEA sponsor do not, and never have, resided at this address. Therefore, this department cannot accept that you are related as claimed to your EEA sponsor."
The second reason was that Ms Raducanou was not exercising Treaty rights.
For reasons which will appear, we are not concerned with the second of those reasons. The first is obliquely expressed. However, it is accepted before us that what it meant was that the Respondent believed that the Appellant and Ms Raducanou had never lived at 23 Manor Grove; and that it could be inferred from that fact that their marriage was a marriage of convenience and accordingly did not constitute a relationship falling within the terms of the Regulations. A spouse is of course a "family member" for the purpose of the Regulations (see regulation 7 (1) (a)); but the definition of "spouse" in regulation 2 (1) excludes "a party to a marriage of convenience". An allegation that the marriage of an applicant under the Regulations is a marriage of convenience is a serious one, and I hope that it is not normally made in such inexplicit terms as it was in this case: people need to know clearly what is being said against them.
The allegation that the Appellant's marriage to Ms Raducanou was a marriage of convenience had not been put to him prior to UKBA's decision. He had not been asked to provide evidence of the genuineness of the marriage nor to rebut what was said about the visit to 23 Manor Grove – as to which indeed no details whatever are given, not even the date. This was a clear breach of good practice: see para. 12 below.
The Appellant appealed to the First-tier Tribunal ("the FTT"). In the meantime Ms Raducanou had established in an appeal of her own that she was exercising Treaty rights. Accordingly the only issue before the Tribunal was whether their marriage was indeed a marriage of convenience. That is not in fact a defined term, but the Tribunal adopted the definition given by the Upper Tribunal (comprising Blake J, the President, and UTJ Freeman) in Entry Clearance Officer, Nicosia v Papajorgji [2012] UKUT 00038 (IAC), namely "a marriage entered into without the intention of matrimonial cohabitation and for the primary purpose of securing admission to the country" (see para. 14). Neither party before us quarrelled with that definition (though in a case like the present the phrase should be "securing the right to reside" rather than "securing admission"). I will refer to "genuine marriage" as the antonym of "marriage of convenience".
The appeal was heard by the FTT on 8 July 2013. The Appellant was represented by Ms Nnamani of counsel, who also appeared before us. The Respondent was represented by a Home Office Presenting Officer. I shall return in due course to the evidence that was before the Tribunal. By a determination promulgated on 11 July FTTJ Pearce held that on the balance of probabilities the Appellant's marriage to Ms Raducanou was indeed a marriage of convenience, and he dismissed the appeal. I should say that there was no case advanced on the basis of the Appellant's rights under article 8 of the European Convention of Human Rights.
The Appellant was initially refused permission to appeal to the Upper Tribunal ("the UT"), but permission was given by UTJ Storey, on the basis that it was arguable that the evidence before the FTT did not justify the Judge's conclusion.
That appeal was heard on 10 October 2013. The Appellant was again represented by Ms Nnamani and the Respondent by a Senior Home Office Presenting Officer. By a determination promulgated on 16 October UTJ McGeachy held that the decision of the FTT was one to which the Judge was entitled to come on the evidence, and he dismissed the appeal.
Permission to appeal to this Court was initially refused on the papers but it was granted by Maurice Kay LJ at a hearing.
PRELIMINARY: THE BURDEN AND STANDARD OF PROOF
I should start by stating what the position is about the burden and standard of proof in a case where the Secretary of State or an Entry Clearance Officer ("ECO") alleges that a marriage is a marriage of convenience. That question is carefully reviewed by the UT in the Papajorgji case to which I have already referred. In that case the ECO had refused an application for entry clearance on the basis of marriage to an EEA national on the ground that all that she had produced in support of the application was her marriage certificate and a copy of her husband's Greek passport and that she had failed to produce "any documentary evidence of your marriage, such as photographs of your wedding or your life together or agreements in joint names such as a bank account or a tenancy agreement". The UT's determination falls into two parts.
At paras. 24–32 the UT holds that the ECO's approach was wrong. As it put it at para. 27 of its determination
"… [T]here is no burden on the claimant in an application for a family permit to establish that she was not a party to a marriage of convenience unless the circumstances known to the decision-maker give reasonable ground for suspecting that this was the case. Absent such a basis for suspicion the application should be granted without more on production of the documents set out in article 10 of the Directive. Where there is such suspicion the matter requires further investigation and the claimant should be invited to respond to the basis of suspicion by producing evidential material to dispel it."
It goes on to say that a failure to provide evidence in support of the genuineness of the marriage will only justify an adverse inference if such documents have been asked for. At para. 32 it emphasises that the evidential burden of showing that there are reasonable grounds for suspecting a marriage of convenience lies on the decision-maker.
Thus far, the UT was concerned with the approach to be followed by the ECO. At paras. 33–38 it goes on to discuss the burden of proof in proceedings in the Tribunals. It was concerned about a possible reading of an earlier decision – IS (Marriages of Convenience) Serbia [2008] UKAIT 31– to the effect that "once evidence of reasonable suspicion has been raised, there is a legal burden on the applicant to demonstrate that it is more probable than not the marriage is not one of convenience" (see para. 33). It expressed considerable reservations about such an approach, and although it said that the issue did not fall for decision it went on at paras. 34–37 to explain why it was strongly inclined to believe that it was wrong in principle. Mr Gullick took no issue with the reasoning in those paragraphs, but it is fair to say that the grounds of appeal did not turn on the issue of the burden of proof and it does not fall for decision before us any more than it did before the UT in Papajorgji. In those circumstances I will not attempt to summarise the passage in detail. 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". Of course in the usual way the evidential burden may shift to the applicant by proof of facts which justify the inference that the marriage is not genuine, and the facts giving rise to the inference may include a failure to answer a request for documentary proof of the genuineness of the marriage where grounds for suspicion have been raised. Although, as I say, the point was not argued before us, that approach seems to me to be correct – as does the UT's statement that the standard of proof must be the civil standard, as explained by the House of Lords in Re B (Children) [2008] UKHL 35, [2009] 1 AC 11.
The UT in Papajorgji concluded, at...
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