Sadovska & Anor v Secretary of State for the Home Department (Scotland) [2017] UKSC 54

A Lithuanian EEA national and her Pakistani partner were detained on their wedding day on suspicion of entering a marriage of convenience. The Supreme Court held that the burden of proof lay on the Secretary of State, not the appellants, and remitted the case.

Facts

Ms Sadovska, a Lithuanian national, had lived and worked lawfully in the United Kingdom since 2007, thereby acquiring a right of permanent residence under article 16 of Directive 2004/38/EC. Mr Malik, a Pakistani national, entered lawfully on a Tier 4 student visa in May 2011 but became an overstayer when his visa expired in April 2013. They claimed to have met in October 2012 and to have entered a relationship from February 2013. They gave notice of marriage at Leith Registry Office, with the wedding scheduled for 17 April 2014. They had signed a lease on a flat together, bought wedding rings, and produced statements from witnesses.

On the day of the intended wedding, immigration officers attended the Registry Office, cautioned and separately interviewed both parties in English (in which neither was fluent), and then detained them, preventing the marriage. Ms Sadovska was served with notice of removal under regulation 19(3)(c) of the Immigration (European Economic Area) Regulations 2006 on the ground that her removal was justified due to abuse of rights (attempted marriage of convenience). Mr Malik was served with notice of removal as an overstayer under section 10(1)(a) of the Immigration and Asylum Act 1999.

Their appeals to the First-tier Tribunal, Upper Tribunal, and the First Division of the Inner House of the Court of Session were all refused.

Issues

The principal issues before the Supreme Court were:

• Where the Secretary of State seeks to remove an EEA national lawfully resident in the UK on the ground of abuse of rights under article 35 of Directive 2004/38/EC (specifically alleged marriage of convenience), upon whom does the burden of proof lie?
• Whether the tribunals below adopted the correct legal approach to the appellants’ respective situations, including proportionality.
• Whether the circumstances and fairness of the interviews were properly considered.

Arguments

Appellants

The appellants argued that the First-tier Tribunal had wrongly placed the burden of proof on them to disprove that their proposed marriage was one of convenience, when, following Papajorgji v Entry Clearance Officer, Nicosia [2012] UKUT 38, the burden lay on the Secretary of State to establish abuse. They argued that the tribunal took the interviews as its starting point, gave undue weight to inconsistencies, and failed to consider the totality of the evidence. They further complained that the interviews were unfair and oppressive: conducted on their wedding day, by uniformed officers carrying batons and handcuffs, in English in which neither was fluent, without solicitor access, interpreter, or opportunity to gather evidence.

Respondent

The Secretary of State relied on the approach of the First Division, which held, citing Sanderson v McManus 1997 SC (HL) 55, that once evidence is heard questions of onus cease to be important, and that the matter turned on the totality of information weighed in the balance to the civil standard.

Judgment

Lady Hale (with whom the rest of the court agreed) allowed the appeal and remitted the case to the First-tier Tribunal for fresh hearing.

Ms Sadovska’s position

As an EEA national with more than five years’ lawful residence, Ms Sadovska enjoyed a right of permanent residence under article 16. Under article 28.2, she could only be expelled on serious grounds of public policy or public security; otherwise, only under article 35 in cases of abuse of rights or fraud such as marriages of convenience, and any such measure had to be proportionate and subject to the procedural safeguards in articles 30 and 31. Although the 2006 Regulations permitted the Secretary of State to act on reasonable grounds of suspicion, on appeal the tribunal had to fully investigate facts and circumstances. The Supreme Court held it was for the Secretary of State to establish that the marriage was one of convenience, not for the appellant to disprove it. The First-tier Tribunal’s statement that the burden of proof was on the appellant was incorrect in the EU context, and the determination did not address proportionality at all.

The meaning of “marriage of convenience”

The court considered that “marriage of convenience” is a term of art. Drawing on the European Commission’s 2009 Communication and 2014 Handbook, the predominant (rather than necessarily sole) purpose of the marriage must be to obtain rights of entry and residence. Incidental immigration benefits are not enough. Save where the non-EU national deceives the EU national, the abusive purpose must be shared by both parties.

Mr Malik’s position

Mr Malik had no established EU law right, being an overstayer not yet married to an EEA national. However, under article 3.2 the Member State must facilitate entry and residence of a partner with whom a Union citizen has a “durable relationship, duly attested,” and must justify any refusal. If Mr Malik produced evidence of a durable relationship, the burden shifted to the Secretary of State to demonstrate that it was not durable or that there were other good reasons to deny entry.

Proportionality and remittal

The court emphasised that even if a marriage of convenience were established, the tribunal still had to consider whether removal was a proportionate response, particularly given Ms Sadovska’s long residence, work, and family ties in the UK. The court could not conclude that the result would inevitably have been the same had the proper approach been taken. On remittal, while the Secretary of State would no doubt focus on inconsistencies in interviews and the puzzling statement of 28 March 2014, the circumstances of those interviews and the body of evidence supporting a genuine relationship would have to be considered. As Lady Hale observed, even if Mr Malik was delighted to meet an EU national willing to marry him, this would not necessarily render the marriage one of convenience nor establish that Ms Sadovska was abusing her rights.

The court rejected the appellants’ contention that their case should be approached as if they were married because the Secretary of State frustrated the marriage; states may legitimately take steps to prevent sham marriages, provided they prove the marriage would be a sham.

Implications

This decision clarifies the proper approach to alleged abuse of rights under article 35 of Directive 2004/38/EC. Several principles emerge:

• Where the Secretary of State seeks to remove a lawfully resident EEA national on the ground of marriage of convenience, the burden of proof lies on the Secretary of State, not the EEA national. The general rule that the burden lies on appellants in immigration appeals does not apply in this context, because the Secretary of State is seeking to take away established EU rights.
• A “marriage of convenience” requires that obtaining free movement rights be the predominant purpose of the marriage, shared by both parties (save in cases of deceit by the non-EU national). Incidental immigration benefits are not sufficient.
• Any removal decision under article 35 must be proportionate, requiring separate analysis from the question whether abuse is established.
• For a non-EU partner in a durable but unmarried relationship with an EU citizen, article 3.2 imposes an obligation on the host Member State to facilitate entry and to justify refusal.
• Tribunals must consider interview evidence in light of the circumstances in which interviews took place, including timing, fluency, access to legal advice, and accompanying detention.

The decision is significant for practitioners advising EEA nationals and their partners facing allegations of sham marriage. It reinforces the procedural safeguards under articles 30 and 31 of the Directive and underscores that suspicion is not enough: the Home Office must prove abuse. The judgment also notes the limits of its reach: it leaves untouched the legitimacy of state action against genuine sham marriages, and does not require that frustrated couples be treated as married. The court did not need to consider the Convention rights arguments, leaving them open.

Verdict: Appeal allowed. The case was remitted to the First-tier Tribunal for a full re-hearing, the lower tribunals having adopted an incorrect approach to the burden of proof and proportionality under EU law.

Source: Sadovska & Anor v Secretary of State for the Home Department (Scotland) [2017] UKSC 54