Vociferous debate is raging over EU law rights because of Brexit and, of course, immigration is a hotspot in that regard. Standing firm, European leaders remain committed to their common mission to expand rights and refuse to reduce them. But at some point unbridled rights turn into anathema for society. These proceedings relate to a “sham marriage” between Violeta Sadovska, a Lithuanian, and Saleem Malik, a Pakistani. She entered the UK in 2007 exercising her right of free movement pursuant to Directive 2004/38/EC. He arrived as student in 2011 on a two-year visa until April 2013 but in late March 2014 he published a notice of their intention to marry on 17 April 2014. Enforcement officers swooped on the suspicious wedding ceremony. Both appellants were interviewed separately and the home office subsequently ordered their removal from the UK because they had attempted to contract a marriage of convenience. On appeal, the First-tier Tribunal decided that Malik’s interviews confirmed that the couple had not demonstrated knowledge of each other consistent with their claimed relationship. The FtT found no evidence of any marriage planning. It judged that they were not in a durable relationship. It was thus justified to revoke Sadovska’s residence card and order her removal. Malik enjoyed no family life needing protection. No private life claim was advanced.
The FtT stated that the burden of proof in immigration appeals is on the appellant and the standard of proof is the balance of probabilities. It found that the pair had attempted to enter into a marriage of convenience to facilitate Malik’s stay in the UK. The Upper Tribunal refused the appellants’ appeal. The Inner House held that the FtT did not err in relation to the burden or standard of proof and was entitled to reach a conclusion of fact as to their relationship, in light of the evidence adduced and attaching such weight to the evidence as it deemed appropriate. Last month Lady Hale and Lords Neuberger, Kerr, Clarke and Reed heard the onward appeal on the issue whether the Inner House erred in failing to hold that, in cases where the respondent intervenes to stop an alleged marriage of convenience and makes a removal order on that basis, the evidential burden of proof rests with the respondent and requires to be discharged on the balance of probabilities.
Sadovska and Malik claimed that they met in a “disco” and entered into a durable relationship in October 2012. Malik’s leave expired. He did not study. They signed a joint lease for a flat in April 2014. This contradicted earlier statements about their intention to live together as a couple. Inconsistent photographic evidence contradicted any claims regarding the longevity of their relationship.
In her evidence she said that they anticipated that their marriage would be stopped but they were “trying their luck” nevertheless. Sadovska’s mother and sisters did not attend the wedding. Since neither appellant demonstrated sufficient knowledge of each other, the FtT did not find their evidence to be consistent with a lifelong commitment to marriage or an intense romantic relationship for over a year. The UT found no unfairness to either appellant at interview because they offered to be interviewed, under caution, in English and no room for improvement existed.
Appeal to Inner House
The appellants argued that both tiers of the tribunal had not only erred in failing to have regard to the triggers set out in the communication from the EU Commission to the Parliament and the Council (Com (2009) 313), but had also approached the burden of proof incorrectly because applying Papajorgji  UKUT 38 the respondent had to produce evidence showing a reasonable suspicion.
The appellants also submitted that the home office had failed to meet the required standard of proof and the UT had erred in failing to make such a finding. A high standard of proof was required to prove fraud in the European context. Finally, they complained that the interviews had been unfair. The UT ignored that the appellants had been interviewed without interpreters creating an unnecessary atmosphere of compulsion to obtain evidence unfairly resulting in a breach of the common law, article 6 of the ECHR and article 47 (right to an effective remedy) of the CFR as contemplated by ZZ (France)  EWCA Civ 7 (see here).
The respondent argued that, following Papajorgji, the UT had not been wrong to resolve the issue on a balance of probabilities in light of the totality of the information. Moreover, Maaouia v France (2001) 33 EHRR 42 undid any article 6 grounds since civil rights had not been determined.
First Division, Inner House, Court of Session
Lord Carloway (President), Lord Menzies and Lady Clark of Calton refused the appeals. Complaints about onus and standard of proof were not advanced in the UT. The FtT reached a decision based upon the available information and its decision did not depend upon onus but upon weighing the various factors in the balance. In that context, applying Stirton 2014 SC 218, the balance of probabilities was the only standard of proof. Questions of onus usually cease to be important once the evidence has been heard.
The FtT identified numerous factors pointing to a sham marriage. While countervailing factors might have been identifiable, the FtT took:
22. … all of these matters into account in reaching a conclusion of fact, which was its primary province to reach.
Failure to refer to the indicative factors mentioned in Com (2009) 313 did not matter. Little, if any, substance in the complaints raised was found by the UT. Sadovska’s residence in the UK stretched seven years and any questions asked of her were not technical. She had the chance to explain any inconsistencies and Malik gave his evidence to the FtT in English.
It was reasonable to place no weight on the complaints made and in the absence of any substantive unfairness, the Inner House found it unnecessary to consider the application of either article 6 of the ECHR or article 47 of the CFR (neither of which appeared to enhance the standards of fairness applicable at common law). Had the FtT found that the interviews had been unfairly conducted, it had the option to evaluate that unfairness and to attach appropriate weight to them; which is precisely what it did in finding that things said in interview showed the absence of a relationship leading to a genuine marriage.
Ramping up political rhetoric, the Immigration Act 2014 redefined sham marriages amid much political fanfare. Who bears the evidential burden and the standard required for the burden to be discharged are germane questions.
Equally, as the botched prosecution of Nathan Ntege proves, abusing rights is one thing but abusing power is quite another matter. The vicar was accused of operating a “matrimonial conveyor belt” of European brides at his London parish. Instead, the trial judge found that immigration officers acted dishonestly by destroying and tampering with evidence and interfering with the investigation log. The eye-opening case left taxpayers with a £1m bill because enforcement officials “lied on oath”.
The Supreme Court convened outside London for the first time and heard this appeal in Edinburgh making it the first matter to be heard by the justices in Scotland. Presiding over proceedings, Lord Neuberger marked the historic moment and said: We are delighted to be here.