IS (marriages of convenience) Serbia
| Jurisdiction | England & Wales |
| Judge | C M G OCKELTON,DEPUTY PRESIDENT |
| Judgment Date | 18 December 2007 |
| Neutral Citation | [2008] UKAIT 31 |
| Court | Asylum and Immigration Tribunal |
| Date | 18 December 2007 |
[2008] UKAIT 31
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Clements
For the Appellant: Mr. D. O'Callaghan instructed by B H Solicitors
For the Respondent: Mr. J. Gulvin, Home Office Presenting Officer
IS (marriages of convenience) Serbia
(1) The burden of proving that a marriage is not a “marriage of convenience” for the purposes of the EEA Regulations rests on the appellant: but he is not required to discharge it in the absence of evidence of matters supporting a suspicion that the marriage is one of convenience (i.e. there is an evidential burden on the Respondent). See also AG [2007] UKAIT 00075 . (2) An EEA family permit is not “Entry Clearance” and so is not caught by s 85(5).
The appellant is from Kosovo. He appealed to the Tribunal against the decision of the respondent on 24 August 2006 refusing him an EEA family permit. The Immigration Judge dismissed his appeal. The appellant sought and obtained an order for reconsideration. Thus the matter comes before us.
The basis of the appellant's claim is that he is married to a Lithuanian national exercising treaty rights in the United Kingdom, whom we shall call the “sponsor”. The marriage took place in Kosovo on 24 May 2006. The application was made and decided under reg 12(1) of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003). That regulation requires a family permit to be issued, on application, to a person who is the “family member” of an EEA national who is residing in the United Kingdom in accordance with the Regulations, which the sponsor was and is. “Family member” is defined in reg 7(1)(a) as including a spouse, but in reg 2 entitled “general interpretation”, is found the following:
“—(1) In these Regulations—
…
“spouse” does not include a party to a marriage of convenience”.
The respondent's refusal, and the Immigration Judge's dismissal of the appeal, are both based on a conclusion that the marriage between the appellant and the sponsor is a marriage of convenience.
Before looking in detail at the facts of the present case, it is convenient to deal with the first ground for review which Mr. O'Callaghan argues on the appellant's behalf, which relates to the burden of proof. The Immigration Judge decided that the appellant before him had the burden of establishing that his marriage was not one of convenience. Mr. O'Callaghan submits that that was wrong. He submits that the burden of proof is on the respondent to prove the marriage to be one of convenience.
So far as we are aware, this issue has not previously been the subject of judicial decision. In Chang [2001] UKIAT 00012, a starred case dealing with a number of matters in relation to marriages of convenience, the respondent accepted the burden of proof. The Tribunal said this:
“43. Before the Adjudicator it was common ground that the Respondent had the burden of proving that the Appellant's marriage was a ‘sham’. The position before us was the same. For the purposes of this determination we accept it, but it appears to us that that position (as to both burden and standard) might properly be reconsidered in some other case. So far as concerns burden, the burden of proof is, as a matter of the general law, usually on the party who asserts. We should, if we were required to make a decision on the matter, have been inclined rather to say that it is the Appellant who asserts that he is a spouse who has a right of residence than that he merely asserts that he is a spouse, leaving the Respondent to deny that he has a right of residence. We are fortified in that view by the provisions of Rule 31 of the 1984 Rules (which applied to this appeal before the Adjudicator). So far as concerns standard, a high standard is appropriate in cases where misconduct is alleged: but, as at present advised, we are not persuaded that there is anything inherently wrong in marrying for convenience and taking any advantages that flow from the relationship — provided, of course, that no deception is involved.”.
In VK [2004] UKIAT 00305, the Tribunal said this:
“16. 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. We are aware of the starred decision of the Tribunal in Chang … that left open the possibility that the proper approach was for the Appellant who wanted to take advantage of her married status to prove that her marriage was not a marriage of convenience and therefore excluded by the Rules. [The Tribunal] was careful to state in that decision that the Tribunal did not have to decide the point. Whilst it must remain open to argument we find, given the specific concession of the Secretary of State, that unless the Secretary of State makes it plain in a particular case that he takes a different position (in which case the question will have to be reconsidered) it is now established that it is for the Secretary of State to prove that a marriage is a marriage of convenience if that is what he alleges. For the reasons already discussed it is clear that the Adjudicator accepted this and set out to apply it.”
In the present appeal the Presenting Officer, on behalf of the Secretary of State, did indeed make it clear that the Secretary of State took a different position. He submitted to the Immigration Judge that the appellant bore the burden of proving that his marriage was not a marriage of convenience.
In the circumstances Mr. O'Callaghan was not able to rely on the previous decisions on the issue as settling the question in his favour. He did, however, point to them as an indication of what might be regarded as established practice. He reminded us of the notorious difficulty of proving a negative, of the fact that it was the respondent who had raised the issue of whether the marriage was one of convenience, and that the question ought to be decided in the context of any relevant rules of European law, because the Regulations implement the Citizens Directive 2004/38/EC. Mr. Gulvin told us that he proposed to repeat the argument of the Presenting Officer to the Immigration Judge, and was fortified in that view by what had fallen from the Tribunal in the course of Mr. O'Callaghan's submissions.
We have reached the firm conclusion that the burden of proof lies on the appellant. There are a number of reasons for this: perhaps none is in itself decisive, but together we regard the result as compelling. The first is that, generally speaking, it is for the appellant to prove his case. As the Tribunal pointed out in Chang, it is probably better to put the appellant's case as that of being a spouse entitled to the benefits of the Directive and the Regulations rather than merely being a spouse. In a case such as the present, an applicant needs to establish that his sponsor is a person exercising treaty rights, and that he himself is related in a particular way to the sponsor. The relationship has to be the relationship defined by the Regulations, and in the case of the relationship of spouses, part of that definition is that the marriage is not one of convenience. So the appellant's general duty to prove his case includes a duty to prove that his marriage is not one of convenience.
The second reason tends to reach the same conclusion by a completely different route. If the first reason does not persuade, that would be because the provision that a marriage does not include a marriage of convenience is not an essential part of what the appellant has to prove, but is something additional which may arise in some cases. But then rule 53 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230), which is the successor of rule 31, to which reference was made in Chang, has relevance. That rule reads as follows:
“ Burden of proof
53.—(1) If an appellant asserts that a relevant decision ought not to have been taken against him on the ground that the statutory provision under which that decision was taken does not apply to him, it is for that party to prove that the provision does not apply to him.
(2) If —
(a) an appellant asserts any fact; and
(b) by virtue of an Act, statutory instrument or immigration rules, if he had made such an assertion to the Secretary of State, an immigration officer or an entry clearance officer, it would have been for him to satisfy the Secretary of State or officer that the assertion was true, it is for the appellant to prove that the fact asserted is true.”
There may be some doubt about the meaning of “statutory provision” in rule 53(1). It clearly excludes the Immigration Rules. Given the formulation in rule 53(2), there seems to be no reason to suppose it does not include both Acts and statutory instruments, because if it was intended to apply to Acts alone one would have thought that that word would have been used in the first paragraph as it is in the second paragraph of the rule. It was not suggested before us that “statutory provision” in rule 53(1) does not include a statutory instrument. The EEA Regulations are a statutory instrument. As we have indicated, reg 2 of those Regulations provide that a marriage does not include a marriage of convenience, and it seems to us that, in a case such as this, the appellant is asserting that that provision does not apply to him in the sense that it is irrelevant to the determination of his application. If that is right, it follows that the burden of proof is placed on the appellant by the Procedure Rules.
The third reason is to be found in the relevant provisions of EU...
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