Upper Tribunal (Immigration and asylum chamber), 2020-06-26, EA/00458/2019
| Jurisdiction | UK Non-devolved |
| Date | 26 June 2020 |
| Published date | 10 July 2020 |
| Hearing Date | 17 June 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | EA/00458/2019 |
Appeal Number: EA/00458/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/00458/2019 (P)
THE IMMIGRATION ACTS
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On the papers on 17 June 2020 |
Decision & Reasons Promulgated |
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On 26 June 2020 |
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Before
UPPER TRIBUNAL JUDGE HANSON
Between
EUNICE LETITIA [G]
(Anonymity direction not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
DECISION AND REASONS
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On 27 March 2019, a judge of the First-tier Tribunal dismissed the appellant’s appeal against the respondent’s refusal to issue her a Residence Card as confirmation of a right to reside in the United Kingdom as the family member of an EEA national exercising treaty rights. The EEA national is a Mr [VK] a citizen of Lithuania.
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That decision was set aside by the Upper Tribunal at a hearing on 12 July 2019 on the basis of a fairness argument. Directions were given for a Resumed Hearing which was listed for 8 January 2020 in Birmingham. That hearing was adjourned as the EEA national wished to give evidence, had been very ill with bowel cancer in the past and continues to receive treatment, and was unable to attend the hearing in Birmingham. Further directions were given providing an extended time period for the appellant to comply with the direction made at the error of law hearing for the provision of all evidence she was seeking to rely upon, and for arrangements made for the hearing to be transferred to Nottingham to facilitate the EEA nationals attendance.
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The hearing was listed on 27 March 2020 at Nottingham but vacated as a result of the Covid 19 pandemic. Directions were sent canvassing the parties opinion upon a remote hearing as a result of which the appellant contacted the Upper Tribunal indicating the EEA national would not attend any hearing due to his health needs and that she was happy for the matter to be determined on the papers.
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The respondent’s representative accepted if the appellant was not going to attend there was very little else that could be done and made further submissions which are set out below.
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I find it is appropriate to determine the merits of the substantive appeal on the papers in light of the position adopted by the appellant in response to directions.
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The issue in the appeal is whether the appellant’s marriage to the EEA national, which was found by the First-Tier Tribunal Judge to be a valid proxy marriage was, nevertheless, a marriage entered into solely for the purposes of obtaining and immigration advantage and therefore a marriage of convenience.
Burden of Proof
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The European Commission has produced a Handbook which can be found at the website (http://ec.europa.eu/justice/citizen/files/swd_2014_284_en.pdf). This indicates that the Commission are of the view that the burden of proof rests on the national authorities to prove the marriage is one of convenience.
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In Rosa [2016] EWCA Civ 14 it was held that the legal burden was on the SSHD to prove that an otherwise valid marriage was a marriage of convenience so as to justify the refusal of a residence card under the EEA Regulations. The legal burden of proof in relation to marriage lay on the Secretary of State, but if she adduced evidence capable of pointing to the conclusion that the marriage was one of convenience, the evidential burden shifted to the applicant (paras 24 – 27).
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That the burden of proof is on the respondent is now put beyond doubt by Sadovska v SSHD [2017] UKSC 54 an appeal from the First Division of the Inner House of the Court of Session.
The law
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The Immigration (European Economic Area) Regulations 2016 at regulation 2 defines a marriage of convenience: “marriage of convenience” includes a marriage entered into for the purpose of using these Regulations, or any other right conferred by the EU treaties, as a means to circumvent – (a) immigration rules applying to non-EEA nationals (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom); or (b) any other criteria that the party to the marriage of convenience would otherwise have to meet in order to enjoy a right to reside under these Regulations or the EU treaties.”
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In Molina, R (On the Application Of) v The Secretary of State for the Home Department [2017] EWHC 1730 (Admin) (12 July 2017)) the High Court considered whether there was a difference between a ‘sham marriage’ and a ‘marriage of convenience’. Deputy Judge Grubb considered the statutory definition of ‘sham marriage’ in section 24(5) of the Immigration Act 1999, which requires:
– The absence of a genuine relationship
– One or both parties to enter into the marriage to avoid immigration law or the Immigration Rules and/or to obtain a right conferred by law or those Rules to reside in the UK
– One or both parties to be a citizen of a country other than the UK, an EEA state or Switzerland.
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The Deputy Judge then considered the definitions of ‘marriage of convenience’ in the EEA Regulations 2016 and the definition in Article 1 of Council Resolution 12337/97’, which refers to ‘a marriage concluded…with the sole aim of circumventing the rules on entry and residence of third-country nationals and obtaining…a residence permit or authority to reside’. The latter definition had been applied by the House of Lords in R (Baiai) v SSHD [2009] 1 AC 287 and the Court of Appeal in Rosa v SSHD [2016] EWCA Civ 14.
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The Deputy Judge concluded that a ‘sham marriage’ can only be established if there is no genuine relationship between the parties; whereas the ‘hallmark of a marriage of convenience is one that has been entered into… for the purpose of gaining an immigration advantage’ [para. 64]. This means that a ‘marriage of convenience’ may exist where there is a genuine relationship if the sole aim of at least one of the parties is to gain an immigration advantage [para. 73].
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In Sadovska & Anor v Secretary of State for the Home Department (Scotland) [2017] UKSC 54 Baroness Hale considered the approach to marriages of convenience, finding that earlier definitions had been moderated by the Commission’s 2014 Handbook, such that the predominant, rather than sole, purpose of the marriage should be to gain rights of entry/ residence. Incidental immigration and other benefits (e.g. tax advantages) that a marriage may bring are not relevant, if this is not the predominant purpose of at least one party to the marriage [para. 29].
Discussion
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The application was refused by the respondent on 15 January 2019 for the following reasons:
Your application has been considered under regulation(s): 7 and 18 with reference to 22(4)(b) of the Immigration (European Economic Area) Regulations 2016.
We have determined that you have not provided adequate evidence to show that you qualify for a right of residence as the family member of your EEA sponsor.
You have not provided adequate evidence to prove that you are direct family member of an EEA or Swiss national and that you are related as claimed.
To enable the Secretary of State reconsider your application, you and your EEA or Swiss national spouse/civil partner, [VK] were invited to attend a marriage interview.
Invitation letters were sent on 5 November 2018 to [private email address] which you listed as our email address on the application form.
You failed to attend this interview and did not give the Home Office any/a good reason for this failure.
The Home Office invited you to a second interview on 22 November 2018. This invitation was sent to email address.
The Home Office then invited you to a third interview on 10 December 2018. This invitation was sent to email address.
Again, you failed to attend this interview.
Whilst you have stated that you could not attend due to medical reasons and have sent pictures of letter detailing your prescriptions, you have not provided written evidence from a relevant GP or doctor stating that you were or are unable to travel for these interviews.
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At the error of law hearing on 12 July 2019 the appellant, through her then representative, confirmed that she and the EEA national sponsor were willing to attend a marriage interview but had been unable to attend the earlier interviews as a result of the EEA sponsor’s medical issues. When specifically asked whether the EEA national and the appellant were capable of attending the interview the Tribunal was advised that the answer in respect of both of them was “Yes”. Sufficient time was therefore provided to arrange a further marriage interview which was offered by the respondent but which, again, the appellant and EEA national sponsor failed to attend.
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No issue has been taken concerning the sponsor’s status in the United...
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