Papajorgji (EEA Spouse - Marriage of Convenience) Greece

JurisdictionUK Non-devolved
CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeMr Justice Blake,Freeman
Judgment Date06 Jan 2012
Neutral Citation[2012] UKUT 38 (IAC)

[2012] UKUT 38 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

Mr Justice Blake, PRESIDENT

UPPER TRIBUNAL JUDGE Freeman

Between
Entry Clearance Officer, Nicosia
Appellant
and
Lindita Papajorgji
Respondent
Representation:

For the Appellant: Mr R. Hopkin, Senior Home Office Presenting Officer

For the Respondent: No appearance

Papajorgji (EEA spouse — marriage of convenience) Greece

i) There is no burden at the outset of an application on a claimant to demonstrate that a marriage to an EEA national is not one of convenience.

ii) IS (marriages of convenience) Serbia [2008] UKAIT 31 establishes only that there is an evidential burden on the claimant to address evidence justifying reasonable suspicion that the marriage is entered into for the predominant purpose of securing residence rights.

iii) The guidance of the EU Commission is noted and appended.

DETERMINATION AND REASONS
1

The claimant (the respondent before us) is an Albanian national born in 1970. She married a Greek national, Mr Papajorgi in 1996 in Greece.

2

In July 2010 she applied to the British consular authorities in Athens for a document enabling her to accompany her husband on a visit to the United Kingdom for a few weeks returning to Greece in September 2010. She downloaded from the appropriate web site and completed the 115 questions in the entry clearance application form. In accordance with the guidance accompanying the form she submitted her marriage certificate, her passport and evidence confirming that her husband was both a Greek national and intending to accompany her on the visit.

3

On 3 August 2010 she received a decision notice in the following material terms:

“You have applied for admission to the United Kingdom…as the family member of a European Economic Area national…but I consider this to be a marriage of convenience because apart from your Greek marriage certificate and a copy of your husband's Greek passport you have not provided 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. …I have refused your EEA family permit application on this occasion because I am not satisfied that you meet all the requirements of Regulation 12 of the Immigration (EEA) Regulations 2006.”

4

She appealed to the First-tier Tribunal expressing disappointment that her marriage had been characterised as one of convenience and pointing out that she had not been asked to provide such documents but that the telephone bill was in her husband's name. She offered to show her album of photographs but expressed surprise that a marriage of 14 years standing of which there were two children with everyone living in a common household should be so treated. She had in fact provided information to this effect on the application form.

5

On 19 October 2010 the Entry Clearance Manager maintained the refusal decision. She said that:

“the appellant was advised in extensive publicity from this Consulate of the required documents needed in order for his (sic) application to be assessed, the marriage certificate, certificate of family circumstances and a telephone bill in Greek were seen but not retained but the appellant has still failed to provide evidence to satisfy me that the marriage is not a marriage of convenience”.

6

The First-tier judge determined the appeal on the papers and allowed it on 4 February 2011. In a brief decision he cited the decision of the AIT in VK (Marriage of convenience) Kenya [2004] UKIAT 305 for the proposition that:

“where the respondent alleges that the appellant's marriage is one of convenience the burden of proof lay on him to show on a balance of probabilities that the marriage was one of convenience. Good evidence was needed to establish the allegation”.

He noted what the claimant said about her marriage and there was no evidence from the ECO to support his assertion and found that he had no reason to disbelieve her.

7

The ECO obtained permission to appeal to the Upper Tribunal because the Judge had not realised that the decision in VK [2004] UKIAT 305 was no longer authoritative. In 2008 the AIT decided the case of IS (marriages of convenience) Serbia [2008] UKAIT 31 where it concluded that where there is a dispute on the issue the burden of proving that the claimant was a family member under the Immigration (EEA) Regulations and not a party to a marriage of convenience fell on her.

8

The appeal was adjourned on one previous occasion when her husband attended the hearing in person but his English was insufficient to enable him to communicate. A Greek interpreter was booked for the subsequent hearing but he did not travel over for a second time and so no live evidence was taken.

9

We note in passing that the Entry Clearance manager submitted that in accordance with the case of DR*38 (Morocco) (by which we conclude she was referring to DR (ECO: post-decision evidence) Morocco * [2005] UKIAT 00038) the Tribunal should not receive any further evidence in the case. We shall comment on this in due course and note that in July 2011 the claimant submitted a clip of family photographs and the birth certificates of her children.

10

When Mr Hopkin opened his submissions for the Entry Clearance Officer, we indicated that we were very surprised at the refusal decision, which seemed to be based on a failure to understand the relevant principles of European Union law and the material parts of the determination in IS.

11

Mr Hopkin realistically acknowledged that the refusal of the entry clearance was indefensible on its facts, although he reserved the right to argue that a failure to produce relevant evidence could justify the refusal of an EEA application, and submitted IS was properly decided when it placed the burden of proof on the claimant.

12

We indicated that we would dismiss the ECO's appeal from the Judge's decision to allow the claimant's appeal. We now give our reasons for doing so.

The law
13

The Citizens Directive (EP and Council Directive 2004/38/EC) sets out the basic rules of European Union law regulating the admission of spouses of EU citizens who are not such citizens themselves (third country nationals). The pertinent principles may be summarised as follows:

  • i. A visa or similar pre-entry document may be required of third country national family members who do not hold a residence card, but there must be facilities for granting the visa without charge as soon as possible and in an accelerated procedure (Art 5 (2)).

  • ii. Where a third country spouse travels without the necessary visa, the Member State shall not turn them away without first affording every reasonable opportunity to obtain the necessary documents or prove that they are covered by the right of free movement and residence (Article 5(3)).

  • iii. A residence card operates as a visa and the documents that a Member State issuing a visa or residence card can ask for in order to issue are set out by the Directive (Art 5(2) and Art 10). In the case of a wife the documents are her passport, her marriage certificate and evidence that her husband is an EU national exercising Treaty rights (in this case the right of entry for a short visit) (Art 10(2)).

  • iv. Member States can take action to prevent abuse of rights or fraud including action to prevent residence being obtained by a marriage (Article 35).

  • v. Measures taken to prevent abuse of rights or fraud must be proportionate and subject to the procedural safeguards in Article 30 and 31 (Article 35).

  • vi. These safeguards include a reasoned decision on the public policy grounds on which the decision is based (Article 30(2)), a right of appeal to examine the facts and the legality of the decision to ensure that it is proportionate and based on considerations in Article 28, including the personal conduct of the claimant (Article 31 (3)).

14

The United Kingdom has taken measures to prevent parties to a marriage of convenience from taking advantage of the Citizens Directive by providing in the Immigration (EEA) Regulations 2006, regulation 2(1) that “spouse does not include a party to a marriage of convenience”. No definition is given of marriage of convenience but that phrase has been construed in the context of the immigration rules as a marriage entered into without the intention of matrimonial cohabitation and for the primary reason of securing admission to the country (our emphasis). The Minister appears to have applied this approach when introducing the Immigration (EEA) Order 1994 that preceded the 2006 Regulations (see Macdonald “Immigration Law and Practice” (Eighth Edition) 2010 at 7.100). Even on this approach intent to cohabit as man and wife is inconsistent with a marriage of convenience.

15

In its decision in IS the AIT recognised the importance of EU law in this regard. It found three reasons for its conclusion that the burden of proof lies on the claimant to demonstrate that she is a qualified person under the Regulations. We quote the whole passage:

“10. The third reason is to be found in the relevant provisions of EU law. So far as concerns the Citizens Directive, although “spouse” is not defined so as to exclude marriages of convenience, there is no doubt that “spouse” in EU law bears a meaning excluding marriages of convenience. Article 35 of the Directive is as follows:

Abuse of rights

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.”

Preamble 28 is as follows:

“To guard against abuse of rights or fraud, notably marriages of convenience or any other form of relationships contracted for the...

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