VK (Marriage of Convenience)
| Jurisdiction | England & Wales |
| Judge | Vice President |
| Judgment Date | 24 November 2004 |
| Neutral Citation | [2004] UKIAT 305 |
| Court | Immigration Appeals Tribunal |
| Date | 24 November 2004 |
[2004] UKIAT 305
IMMIGRATION APPEAL TRIBUNAL
Mr J Barnes – Vice President
Mr J Perkins – Vice President
For the Appellant: Mr R Khubber of Counsel instructed by the Joint Council for the Welfare of Immigrants
For the Respondent: Miss C Hanrahan, a senior Home Office Presenting Officer
VK (Marriage of Convenience) Kenya
The Appellant is a citizen of Kenya. She was born on 1 November 1972 and so is now 31 years old. She appeals the decision of an Adjudicator, Ms C A Parker, who in a determination promulgated on 15 August 2003 dismissed her appeal against a decision of the Respondent that she was not entitled to admission to the United Kingdom as the wife of an EEA national and that the decision complained of was contrary to her human rights. Unless, as is the case here, it is alleged that the decision is contrary to the Appellant's human rights, appeals of this kind cannot be heard when the Appellant is within the United Kingdom. By reason of Regulation 30(3)(b) of The Immigration (European Economic Area) Regulations 2000 the appeal can be heard whilst the Appellant remains in the United Kingdom. We assume that it is for this reason that the appeal is numbered in the “HR” rather than the “IM” series.
The Appellant arrived in the United Kingdom on 9 March 1992 with her son. She claimed asylum on arrival. On 16 December 1998 she was refused asylum. She appealed that decision. The appeal was dismissed and the determination promulgated on 10 February 2000. On 1 March 2000 the Appellant was refused permission to appeal to the Immigration Appeal Tribunal.
Sometime in April 2000 a, a citizen of the Republic of Ireland and therefore an EEA national, asked the Appellant to marry him. They had met in November 1999. They married on 8 May 2000 and on 29 June 2000 the Appellant applied for permission to remain on the basis of her marriage was issued with a residence permit on 18 August 2000. No decision was made on this Appellant's application until it was refused on 23 July 2001. On 26 July 2001 the Appellant entered a notice of appeal complaining that the decision was wrong and that the proposed removal to Kenya was contrary to her human rights. The Adjudicator heard the appeal on 15 August 2003.
It was the Appellant's case that she and her husband separated in November 2001 but her husband contacted her in February 2002 and again on 29 March 2003 to discuss their relationship and to try to reconcile.
It was the Respondent's case that the Appellant's marriage to the EEA national was a marriage of convenience and for that reason the Immigration Officer was right to refuse the application.
Regulation 13(1) of the Immigration (European Economic Area) Regulations 2000 provides that an Entry Clearance Officer must issue an EEA family permit to a person who applies for it if he is a family member of a qualified person. Regulation 6 of the same regulations defines “family members” in a way that includes a person's spouse and Regulation 2 provides that “spouse” does not include a party to a marriage of convenience.
At paragraph 18 of her determination the Adjudicator said “both parties agreed that the burden of proof of showing that the marriage was one of convenience lay upon the Respondent”. At paragraph 25 of her determination the Adjudicator reviewed cases that she had considered and said “I have extracted below the main ratios in those cases and do not believe that my finding that this is a marriage of convenience is inconsistent with them”. One of the cases cited by the Adjudicator was R v Immigration Appeal Tribunal ex parte Wai Kwan Cheung [1995] 104. There at page 106 Popplewell J said “In our view, as we have said, the Secretary of State must show on the balance of probability and bearing in mind the seriousness of the issue that the marriage has no substance. It may be that a marriage entered into for the purpose of achieving residence would nevertheless have some substance. It is all a matter of evidence.”
The Adjudicator noted that it was the Appellant's case that the burden of proof on the Respondent was higher than that of the normal civil burden and was akin to the burden applicable in fraud cases. It is plain to us that the Adjudicator did not accept that. She did not apply that standard. She applied the approach approved in Cheung that the Secretary of State had to prove that the marriage was a marriage of convenience and the standard was the “balance of probability and bearing in mind the seriousness of the issue that the marriage has no substance.”
At paragraph 22 of the determination the Adjudicator says “I have carefully considered all the evidence and submissions before me and I find that this is a marriage of convenience for the reasons which follow.” It is clear to us from reading those reasons that the Adjudicator found that the marriage was a marriage of convenience when she considered it and it had never been anything else. This interpretation, which is clearly justified in the light of the Adjudicator's findings, is of some importance in the light of the submissions made to us.
At paragraph 22.1 of her determination the Adjudicator said that the Appellant and her husband “gave unconvincing and inconsistent evidence about why they were not living together and I found their evidence lacked in credibility.” At paragraph 22.2 of her determination the Adjudicator said “in my view, none of the reasons put forward for not living together were credible and, if they had decided before they married that they would not be living together there did not seem to be any reason for them to have married in the first place apart from the issue of the Appellant's immigration status.”
At paragraph 22.3 the Adjudicator noted that had given inconsistent evidence about when he last saw his wife before March 2003. According to the Adjudicator the Appellant and made statements before the hearing in which they said that they separated in November 2001 and did not see each other again until February 2002. They met then to try and resolve their differences. They failed and did not see each other again until March 2003. However at the hearing said that before seeing the Appellant in March 2003 there had been a period of about one month when he had not seen her. In his previous evidence there had been a gap of more than one year. The Adjudicator found this incredible.
The Adjudicator further found that there was no particular reason for the couple having seen each other in March 2003 except that the hearing was approaching. At paragraph 22.4 the Adjudicator noted that the Appellant and her husband differed about when they saw each other. They both claimed that they saw each other several times a week but could not agree about when they met. At paragraph 22.5 the Adjudicator noted that the Appellant and her husband were still living apart when she heard the case. And the Adjudicator found no “convincing explanation” as to why they did not live together. She found the absence of such an explanation to undermine their claim to be in a genuine marriage. At paragraph 22.6 the Adjudicator says
“the couple remained living together separately after their marriage ceremony and continued claiming benefits as a single person. Neither of them gave a convincing explanation as to why they did not live together and the absence of any such explanation undermines the credibility of their claim to be in a genuine marriage. They married very soon after meeting and the timing of their marriage coincided with the Appellant's application for leave to appeal to the Immigration Appeal Tribunal being declined. apparently proposed a month after that decision was promulgated and they then married a month later. When they married they had no intention to live together in the foreseeable future so that such haste is all the more questionable. I further note that the ‘reconciliation’ between the couple allegedly occurred towards the end of March 2003, shortly before the parties were sent notification that the Appellant's appeal would be heard which is highly coincidental. Apart from the marriage certificate, wedding photographs and the evidence of the Appellant and her husband, there is no evidence to support their claim to be in a genuine relationship. They do not live together; there is no joint bank account; no evidence of joint purchases or bills; no evidence of joint activities; no statements from family members or friends concerning their relationship. The Appellant is represented and, if such evidence existed, I would have expected it to have been submitted but none has been. When this situation is looked at, in the round, I am satisfied that this is a marriage of convenience.”
As indicated above it is quite plain to us that the Adjudicator here meant that the marriage was a marriage of convenience at its inception, when it was considered by the Immigration Officer and when she heard the case.
The Adjudicator also found that the Appellant had established a private and family life in the United Kingdom with her son. She did not accept there was a protected private or family life...
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