Sadovska v Secretary of State for the Home Department

JurisdictionScotland
JudgeLady Hale,Lord Neuberger,Lord Kerr,Lord Clarke,Lord Reed
Judgment Date13 December 2018
Neutral Citation[2017] UKSC 54,[2018] UKSC 64
CourtSupreme Court (Scotland)
Docket NumberNo 3,No 2
Date13 December 2018
Sadovska and another
(Appellants)
and
Secretary of State for the Home Department
(Respondent) (Scotland)

[2017] UKSC 54

before

Lord Neuberger, President

Lady Hale, Deputy President

Lord Kerr

Lord Clarke

Lord Reed

THE SUPREME COURT

Trinity Term

On appeal from: [2016] CSIH 51

Appellant

Mungo Bovey QC

Daniel Byrne

(Instructed by Drummond Miller LLP)

Respondent

Lord Keen of Elie QC

(Advocate General for Scotland)

Andrew G Webster

(Instructed by Office of the Solicitor to the Advocate General for Scotland)

Heard on 12 June 2017

Lady Hale

( with whom Lord Neuberger, Lord Kerr, Lord Clarke and Lord Reed agree)

1

The issue in this case is the proper approach of the immigration appellate authorities where the Secretary of State has decided that a national of the European Economic Area who is lawfully living in the United Kingdom should be removed on the ground of abuse of the right to reside here. The abuse in question happened to be an alleged attempt to enter into a "marriage of convenience" but the issue would arise in respect of any abuse which would justify removal under article 35 of 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 the Member States ("the Directive").

The facts
2

Ms Sadovska is a citizen of Lithuania. She came to this country lawfully in February 2007 and has since been living and working here lawfully, exercising her rights under the Directive. She lives in Edinburgh, where her sisters also live, and works as a cleaner. Mr Malik is a citizen of Pakistan who came to this country lawfully with a Tier 4 student visa in May 2011. His visa expired on 15 April 2013 and he has been here unlawfully ever since. He too lives and worked in Edinburgh until 17 April 2014.

3

They say that they met at a disco, El Barrio in Edinburgh, in October 2012. They spent that night together and saw one another from time to time afterwards, meeting members of one another's families, but the relationship did not become a steady one until Valentine's Day 2013. Thereafter, they say, the saw one another as boyfriend and girlfriend. It is common ground (and there is photographic evidence) that in December 2013, Mr Malik attended the wedding of Ms Sadovska's sister and that they were on the streets of Edinburgh together during the celebrations at Hogmanay 2013. It is also common ground that Mr Malik booked a double room for two adults at a London hotel for four nights in January 2014 and that they were both in London at that time. They say that they were on holiday together and that was when they decided to get married.

4

On 25 March 2014, they published notice of their intention to marry on 17 April 2014 at Leith Registry Office. On 28 March 2014, they signed a one page statement about their relationship which included the following puzzling sentence:

"We have discussed the idea of living together in depth and also have touched upon the subject of marriage, but as of yet, none of these discussions have manifested into action."

5

That statement was enclosed in a letter dated 11 April 2014, sent by solicitors acting for Mr Malik (and, it would appear, also for Ms Sadovska) to the Home Office in Glasgow. This explained that their client was an over-stayer, but that he intended to marry an EEA national on 17 April 2014 and would be applying for recognition that he was exercising Treaty rights as a family member of an EEA national, so it was hoped that no enforcement action would be taken against him. The letter recognised that officials might wish to interview their clients but hoped that this could be done before their wedding on 17 April. It also stated that:

"We would like you to take this letter as a human rights allegation that both the applicant and the EEA national have established a family life in the United Kingdom and any decision to attempt to remove the applicant from the United Kingdom would be challenged on article 8 grounds and also on the grounds that the applicant [sci: attempt?] breaches our client's right to marry under article 12 of the ECHR."

6

Enclosed were copies of Mr Malik's passport, of Ms Sadovska's identity card, birth certificate and most recent payslip, a receipt from the Property Management Company in respect of a flat in Edinburgh for which they had signed a lease on 6 April 2014, three statements from two people who knew them, and their statement of 28 March.

7

Mr Malik and Ms Sadovska had indeed signed a lease for a flat in Edinburgh on 6 April 2014 and each gave this as their home address when interviewed on 17 April. (We are told that they still live together but at a different address.) On 16 April 2016 they bought wedding rings.

8

The solicitor's letter was faxed to the Home Office on Friday 11 April. The wedding was due to take place on the afternoon of the following Thursday. Before that could happen, however, immigration officers arrived at the Registrar's Office and asked to interview them. They agreed. Each was cautioned and agreed to be interviewed in English. They were interviewed separately, Mr Malik from 14.55 to 16.20 and Ms Sadovska from 14.54 to 16.50, according to the immigration officers' records. After the interviews they were detained and thus unable to marry. Ms Sadovska was released soon afterwards, but Mr Malik was detained until 11 June. On the same day as the interviews, each was issued with a two part decision notice.

9

Mr Malik was issued with a notice that he was a person liable to removal as an over-stayer, who had not applied for further leave to remain after his visa had expired and was thus liable to be detained pending a decision whether or not to give directions for his removed from the United Kingdom. The notice explained that he had breached section 10(1)(a) of the Immigration and Asylum Act 1999, which provides that "a person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if … (a) having only a limited leave to enter or remain, he … remains beyond the time limited by the leave", and had therefore committed an offence under section 24(1)(b)(i) of the Immigration Act 1971.

10

Ms Sadovska was issued with a notice that she was a person liable to removal because her removal was justified on grounds of abuse of rights, specifically that she had attempted to enter into a marriage of convenience with Mr Malik. The notice referred to regulation 19(3)(c), without explaining that this was contained in the Immigration (European Economic Area) Regulations 2006. At the time, this provided that "… an EEA national who has entered the United Kingdom … may be removed if … (c) the Secretary of State has decided that the person's removal is justified on grounds of abuse of rights in accordance with regulation 21B(2)". Regulation 21B(1) provided that "The abuse of a right to reside includes … (c) entering, attempting to enter or assisting another person to enter or attempt to enter, a marriage or civil partnership of convenience". Regulation 21B(2) provided that "The Secretary of State may take an EEA decision on the grounds 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". Regulation 24(2) provided that where a decision to remove was taken under regulation 19(3)(c), the person was to be treated as someone to whom section 10(1)(a) of the 1999 Act applied.

11

In each case, the notice was accompanied with notice of a decision to remove.

12

Both appealed to the First-tier Tribunal which heard their appeals together on 4 August 2014 and promulgated a determination refusing them both on 19 August 2014. Their appeals to the Upper Tribunal were heard on 5 February 2015 and a determination refusing them was promulgated on 9 February 2015. Their appeals to the First Division of the Inner House of the Court of Session were refused on 17 June 2016: [2016] CSIH 51. They now appeal to this court.

13

They make two complaints about the decisions of the tribunals and court below. The first, and most important, relates to the burden of proof in a case such as this.

14

Under the heading "Applicable law", the First-tier Tribunal judge said this, at para 7:

"In immigration appeals, the burden of proof is on the appellant and the standard of proof required is a balance of probabilities. In human rights appeals, it is for the appellant to show that there has been an interference with his or her human rights. If that is established, and the relevant article permits, it is then for the respondent to establish that the interference was justified. The appropriate standard of proof is whether there are 'substantial grounds for believing the evidence.'"

It is apparent from his determination that his whole approach was to require Ms Sadovska and Mr Malik to prove that their proposed marriage was not a marriage of convenience, rather than to require the Home Office to prove that it was.

15

Before the Upper Tribunal the appellants' complaint was that the First-tier Tribunal judge had taken the interviews as his starting point and given too much weight to the inconsistencies between them and had not considered them in the context of the totality of the evidence, as required by the decision of the Upper Tribunal in Papajorgji v Entry Clearance Officer, Nicosia [2012] UKUT 38, [2012] Imm AR 3 (at para 39).

16

Papajorgji was an extraordinary case in which an Albanian woman who had been married to and living with a Greek man for 12 years and had two children with him was refused a visa to accompany him on a visit to this country on the ground that theirs was a marriage of convenience, a belief which, as the Upper Tribunal said, was on the information supplied with the application "simply ludicrous" (para 32). There was no burden on the claimant...

To continue reading

Request your trial
86 cases
  • The Secretary of State for the Home Department v E3 and N3
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 21 Noviembre 2019
    ...not be rendered stateless. Mr Southey QC relied upon [28] and [31] of the judgment of Baroness Hale of Richmond DPSC in Sadovska v SSHD [2017] UKSC 54; [2017] 1 WLR 2926, a case where a removal order was made against an EU citizen on the grounds that she had abused her right of residence ......
  • Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998
    • United Kingdom
    • Supreme Court (Scotland)
    • 23 Noviembre 2022
    ...Martin v Most, para 49; Imperial Tobacco, para 16; and In re UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill [2018] UKSC 64; [2019] AC 1022; 2019 SC (UKSC) 13 (“ Continuity Bill”), para (ii) The case that the proposed Bill relates to reserved matters 58 In her sub......
  • R Gunars Gureckis v Secretary of State for the Home Department
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 14 Diciembre 2017
    ......However, even in the context of a marriage of convenience, the Supreme Court emphasised in Sadovska v Secretary of State for the Home Department [2017] UKSC 54 that the predominant purpose of the marriage of convenience must be artificially to gain EU law rights and that this must be the purpose of both partners to the marriage. Application of regulation 26 to rough sleeping . ......
  • R (on the Application of Farhan Aslam) v The Secretary of State for the Home Department
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 6 Agosto 2018
    ......Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 [notification of decision] and 31 [procedural safeguards].” . 44 In Sadovska and another v Secretary of State for the Home Department (Scotland) [2017] UKSC 54 , the Supreme Court defined a “marriage of convenience” as one which has as its “ predominant purpose” the gaining of rights of entry to and residence in the European Union. It is not enough that the ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT