Luciara Machado Rosa v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Richards,Lord Justice Floyd,Lord Justice Moore-Bick
Judgment Date15 Jan 2016
Neutral Citation[2016] EWCA Civ 14
Docket NumberCase No: C5/2013/2621

[2016] EWCA Civ 14




Appeal Number: IA/235114/2012

Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Moore-Bick

(Vice President of the Court of Appeal (Civil Division)

Lord Justice Richards


Lord Justice Floyd

Case No: C5/2013/2621

Luciara Machado Rosa
Secretary of State for the Home Department

Hugh Southey QC and Glen Hodgetts (instructed by Birnberg Peirce & Partners) for the Appellant

Robert Kellar (instructed by the Government Legal Department) for the Respondent

Hearing date: 17 December 2015

Lord Justice Richards

This case was listed for hearing under the title LR (Brazil) v Secretary of State for the Home Department, but there is no reason for retaining the anonymity of the appellant, Mrs Rosa.


Mrs Rosa is a Brazilian national who was removed from the United Kingdom in 2007 as an overstayer. In July 2008 she married a Portuguese national, Mr De Oliveira, in Portugal. He was living in the United Kingdom at the time. She joined him in the United Kingdom three months after the wedding. In January 2009 he was arrested at Heathrow Airport on suspicion of importing cocaine, an offence to which he subsequently pleaded guilty. He was sentenced to five years' imprisonment, from which he was released in September 2011. Prior to his release a decision was taken to deport him, but he appealed successfully to the First-tier Tribunal against that decision. Mrs Rosa gave evidence to the tribunal in support of that appeal.


In April 2012 Mrs Rosa applied for a residence card under regulation 17 of the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations") as Mr De Oliveira's spouse. Her application was refused by the Secretary of State, on the ground that her marriage to Mr De Oliveria was a "marriage of convenience". Her appeal against that decision was dismissed by the First-tier Tribunal and a further appeal was dismissed by the Upper Tribunal. She now appeals to this court against the determination of the Upper Tribunal, with permission granted by a Judge of the Upper Tribunal.


Although the appeal is against the determination of the Upper Tribunal, the focus in practice is upon the determination of the First-tier Tribunal and whether that determination was vitiated by material error of law. The grounds of appeal are, in summary, that the First-tier Tribunal (i) wrongly concluded that the appellant bore the legal burden of proof on the issue of marriage of convenience, (ii) wrongly focused on whether the marriage was "genuine and subsisting" instead of whether it was a marriage of convenience, (iii) failed to deal adequately with the evidence given by two witnesses called on behalf of the appellant, and (iv) made an adverse credibility finding in relation to the appellant on the basis of a mistaken understanding of the evidence.


Only the first of those grounds raises an issue of principle. I will consider that issue before turning to examine whether the First-tier Tribunal erred in any of the respects alleged and, if so, whether any such error was material.

The burden of proof on the issue of marriage of convenience

The legislation governing the issue of a residence card


Regulation 17 of the EEA Regulations governs the issue of residence cards. It provides:

"17(1) The Secretary of State must issue a residence card to a person who is not an EEA national and is the family member of a qualified person or of an EEA national with a permanent right of residence under regulation 15 on application and production of —

(a) a valid passport; and

(b) proof that the applicant is such a family member."


Regulation 7 sets out who is to be treated as a "family member" for these purposes:

"7(1) Subject to paragraph (2), for the purposes of these Regulations the following persons shall be treated as the family members of another person —

(a) his spouse …."

Regulation 2 provides that "'spouse' does not include … a party to a marriage of convenience".


Since the date that is material for the purposes of the present case, the EEA Regulations have been amended to introduce additional procedural provisions relevant to the issue of burden of proof. By regulation 17(8) as amended, regulation 17 is subject to regulation 20(1). By regulation 20(1) as amended, the Secretary of State may refuse to issue a residence card on grounds of abuse of rights in accordance with regulation 21B(2). By regulation 21B(1)(c), the abuse of a right to reside includes entering into a marriage of convenience; and by regulation 21B(2) the Secretary of State may take a decision on the ground of abuse of rights where there are reasonable grounds to suspect the abuse of a right to reside and it is proportionate to do so. Further, where the Secretary of State wants to verify the eligibility of a person to apply for documentation issued under Part 3, which includes the issue of a residence card under regulation 17, regulation 20B provides that the Secretary of State may invite that person to provide evidence to support the application and may draw factual inferences if the person fails without good reason to provide the additional information requested. In relation to the period under consideration in this case, however, those various additional provisions must be put firmly to one side.


The EEA Regulations implement Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of Member States ("the Directive"). There is no suggestion in this case of incorrect or inadequate transposition of the Directive. It is therefore unnecessary to set out the detailed provisions of the Directive relating to the rights of residence of family members or the issue of a residence card to them. It is sufficient to note that in cases of abuse, including marriages of convenience, the Directive permits Member States to exclude the rights otherwise conferred by the Directive. Thus, Article 35 provides:

"Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31."

Recital (28) of the preamble to the Directive is in similar terms.


Neither the EEA Regulations nor the provisions of the Directive contain a definition of "marriage of convenience", but in R (Baiai) v Secretary of State for the Home Department (Nos. 1 and 2) [2008] UKHL 53, [2009] 1 AC 287, at paragraph 6, Lord Bingham said that it was difficult to improve on the definition (which the Secretary of State accepted in that case as apposite) in Article 1 of EC Council Resolution 97/ C 382/01 of 4 December 1997 on measures to be adopted on the combating of marriages of convenience. That article defines a marriage of convenience as —

"a marriage concluded between a national of a Member State or a third-country national legally resident in a Member State and a third-country national, with the sole aim of circumventing the rules on entry and residence of third-country nationals and obtaining for the third-country national a residence permit or authority to reside in a Member State."

The tribunal procedural rules


The tribunal procedural rules in force at the material time, though now superseded, were the Asylum and Immigration Tribunal (Procedure) Rules 2005. The only rule to which it is necessary to refer is rule 53, entitled "Burden of proof", which provided:

"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 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."

The relevant national case-law


The Asylum and Immigration Tribunal in IS (marriages of convenience) Serbia [2008] UKAIT 00031 (" IS Serbia") held that it was for an appellant to prove before an immigration judge that his marriage was not a marriage of convenience. The tribunal gave a number of reasons for that conclusion, stating that perhaps none was itself decisive but together the result was compelling. The first was that, generally speaking, it is for the appellant to prove his case:

"7. … 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 tribunal stated that the second reason tended to reach the same conclusion by a completely different route. If the first reason did not persuade, that would be because the provision that a marriage does not include a marriage of convenience was not an essential part of what the appellant had to...

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