During these proceedings, the Supreme Court said it was “delighted” to hear its first appeal in Scotland. Without a doubt, the appellants must surely be equally delighted with the outcome in their case because Lady Hale and Lords Neuberger, Kerr, Clarke and Reed unanimously held that the burden of proving a “marriage of convenience” falls on the home office. Giving the only judgment, Lady Hale allowed the appeal on the basis of EU law and found it unnecessary to make any findings on ECHR rights. She arrived at the “firm conclusion” that the case needed to be heard afresh in the First-tier Tribunal. The future president of the court clarified that the state is entitled to enact measures to prevent sham marriages but that it also has the responsibility to “show that the marriage would indeed be a sham.” Nevertheless, to avoid the enhancement of the appellants’ claims, her Ladyship rejected the argument that their case should be approached as if they were married because their marriage was frustrated by enforcement action. Violeta Sadovska, a Lithuanian, entered the UK in 2007 exercising her right of free movement pursuant to Directive 2004/38/EC. Saleem Malik, a Pakistani, arrived as a student in 2011 on a two-year visa until April 2013.
They entered into a relationship and published a notice of their intention to marry. Enforcement officers disrupted their wedding. The appellants were interviewed separately under caution. The home office alleged that they had tried to enter into a marriage of convenience. Thereafter, in appellate proceedings, both tiers of the tribunal and the Inner House found against the appellants who raised arguments based on fairness. The appeal concerned the correct approach of the appellate tribunal where the home office finds that an EEA national lawfully resident in the UK should be removed because of an abuse of rights. The present case concerned allegations about a marriage of convenience, particularly on the issue of which party bears the burden of proof in establishing that a proposed marriage is one of convenience. Yet Lady Hale observed that the outcome of the appeal produces wide-ranging implications for any “abuse” capable of justifying removal under article 35 of the Directive. Official estimates suggest that 4,000 to 10,000 applications a year to stay in the UK are made on the basis of a sham marriage or civil partnership.
Malik’s overstaying breached section 10(1)(a) of the Immigration and Asylum Act 1999. He had committed an offence under section 24(1)(b)(i) of the Immigration Act 1971. Sadovska lived in the UK lawfully for a continuous period of more than five years and achieved permanent residence pursuant to article 16 of the Directive. Therefore, under article 28(2), she was expellable from the UK only on serious grounds of public policy or public security. She was nonetheless notified that her removal was justified on grounds of abuse of rights because she had attempted to enter into a marriage of convenience violating regulation 19(3)(c) of the Immigration (European Economic Area) Regulations 2006.
By holding that the burden of proof is on the appellant and that the required standard of proof is a balance of probabilities, the FtT shifted the burden of proof onto the appellants to establish that their marriage was not one of convenience. Further appeals to the Upper Tribunal and the Inner House were unsuccessful on the ground that the FtT’s approach to the burden of proof was incorrect because the home office had not proved the allegations of fraud in light of the evidence.
The Supreme Court
It is incumbent on the state to establish any wrongdoing. Couples do not have to disprove any allegations. Established rights must not be taken away because the burden of proof rests on the accusing party. Potential inaccuracies in transposition resulted in the court giving effect to the Directive rather than focusing on the regulations. The phrase marriage of convenience is “a term of art” in Lady Hale’s analysis. Earlier guidance on the Directive said its sole purpose must be to gain rights of entry to and residence. However, the flexible new handbook states that gaining rights must be the predominant purpose failing which any incidental immigration and other benefits are legitimate.
Apart from cases involving deceit by the non-EU national, the predominant purpose must be the objective of both parties because it is possible for a non-EU national to abuse rights but for the EU national to believe that she is in a genuine relationship. Stopping the marriage denied Malik the status of an EU worker’s “family member”. But rights conferred by the Directive extended to a partner in “a durable relationship, duly attested” whose entry/residence must be facilitated and cannot be withheld or denied without extensive scrutiny. The appellants’ rights to a private and family life and to marry and found a family were also guaranteed under article 8 and article 12 of the ECHR.
Given that the Directive sets a high threshold of protection and expulsion is only permitted on limited grounds, Sadovska could only be removed under article 35 if it could be shown that she entered, or attempted to enter, into a marriage of convenience (which was for the home office to demonstrate). Sadovska was entitled to an appeal where a tribunal fully investigated the facts and circumstances and, applying Papajorgji  UKUT 38 (IAC), formed an independent view of the facts on the total evidence presented.
Lady Hale rectified the earlier errors by explaining that it was not for Sadovska to prove a genuine and lasting relationship and held:
28. … The respondent is seeking to take away established rights. One of the most basic rules of litigation is that he who asserts must prove.
It was wrong of the FtT impose the burden of proof on the appellant because Sadovska had established rights and the home office needed to prove that the narrow grounds needed to take them away were in existence. The FtT also failed to address the principle of proportionality whereby it needed to be satisfied that Sadovska’s removal from the UK – where she was permanently resident, worked and lived with her family members – was an appropriate response to the abuse of rights, rather than merely the prevention of the marriage. Lady Hale said:
31. … It is impossible for this court to conclude that, had the matter been approached in the right way, the decision would inevitably have been the same.
Malik had no established rights but the same conclusion applied to him because if he were able to provide evidence of a “durable relationship” – a term left undefined by the Directive – it would be for the home office to negate that claim or establish other good reasons to deny him entry. Therefore, taking account of the circumstances of the interviews and any inconsistencies in the appellants’ accounts, the FtT would rehear the case in light of evidence detailing a genuine relationship. Debate over ECHR rights added nothing to the outcome because a state was entitled to take steps to prevent sham marriages. But it needed to show that the marriage under scrutiny would really be a sham.
Protecting the fundamental rights of all citizens is a core European value. EU leaders stress that “citizens should never be bargaining chips” and accuse the UK of betraying citizens’ rights by its silence. Amber Rudd is keen to avoid economic damage caused by a “cliff-edge” Brexit and the government wants a phased immigration strategy on EU migration. Since a “single step” is undesirable, free movement in the UK may perhaps have a new lease of life during a “transitional period”. But paradoxically, settled EU citizens working in the professions are fleeing the UK because of future uncertainty.
Overall, after the Supreme Court’s progressive judgments in Johnson  UKSC 56 (see here) and Kiarie  UKSC 42 (see here), this judgment serves as yet another reality check for the home office and the lower courts.