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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Sadovska & Anor v Secretary of State for the Home Department (Scotland) (Rev 1) [2017] UKSC 54 (26 July 2017) URL: https://www.bailii.org/uk/cases/UKSC/2017/54.html Cite as: [2017] UKSC 54, [2017] Imm AR 1473, [2017] INLR 944, [2018] 1 CMLR 37, [2017] WLR(D) 556, 2018 SCLR 36, 2018 SC (UKSC) 38, 2017 GWD 23-396, [2018] 1 All ER 757, [2017] WLR 2926, [2017] 1 WLR 2926, 2017 SLT 883 |
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[2017] UKSC 54
On appeal from: [2016] CSIH 51
JUDGMENT
Sadovska
and another (Appellants) v Secretary
of State for the Home Department (Respondent) (Scotland)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Kerr
Lord Clarke
Lord Reed
JUDGMENT GIVEN ON
26 July 2017
Heard on 12 June 2017
Appellant Mungo Bovey QC Daniel Byrne (Instructed by Drummond Miller LLP) |
|
Respondent Lord Keen of Elie QC (Advocate General for Scotland) Andrew G Webster (Instructed by Office of the Solicitor to the Advocate General for Scotland) |
LADY HALE: (with whom Lord Neuberger, Lord Kerr, Lord Clarke and Lord Reed agree)
The facts
2.
Ms Sadovska
is a citizen of Lithuania. She came to this country lawfully
in February 2007 and has since been living and working here lawfully,
exercising her rights under the Directive. She lives in Edinburgh, where her
sisters also live, and works as a cleaner. Mr Malik is a citizen of Pakistan
who came to this country lawfully with a Tier 4 student visa in May 2011. His
visa expired on 15 April 2013 and he has been here unlawfully ever since. He
too lives and worked in Edinburgh until 17 April 2014.
3.
They say that they met at a disco, El Barrio in Edinburgh, in October
2012. They spent that night together and saw one another from time to time
afterwards, meeting members of one another’s families, but the relationship did
not become a steady one until Valentine’s Day 2013. Thereafter, they say, they
saw one another as boyfriend and girlfriend. It is common ground (and there is
photographic evidence) that in December 2013, Mr Malik attended the wedding of
Ms Sadovska’s
sister and that they were on the streets of Edinburgh together
during the celebrations at Hogmanay 2013. It is also common ground that Mr
Malik booked a double room for two adults at a London hotel for four nights in
January 2014 and that they were both in London at that time. They say that they
were on holiday together and that was when they decided to get married.
“We have discussed the idea of living together in depth and also have touched upon the subject of marriage, but as of yet, none of these discussions have manifested into action.”
5.
That statement was enclosed in a letter dated 11 April 2014, sent by
solicitors acting for Mr Malik (and, it would appear, also for Ms Sadovska)
to
the Home Office in Glasgow. This explained that their client was an
over-stayer, but that he intended to marry an EEA national on 17 April 2014 and
would be applying for recognition that he was exercising Treaty rights as a
family member of an EEA national, so it was hoped that no enforcement action
would be taken against him. The letter recognised that officials might wish to
interview their clients but hoped that this could be done before their wedding
on 17 April. It also stated that:
“We would like you to take this letter as a human rights allegation that both the applicant and the EEA national have established a family life in the United Kingdom and any decision to attempt to remove the applicant from the United Kingdom would be challenged on article 8 grounds and also on the grounds that the applicant [sci: attempt?] breaches our client’s right to marry under article 12 of the ECHR.”
6.
Enclosed were copies of Mr Malik’s passport, of Ms Sadovska’s
identity
card, birth certificate and most recent payslip, a receipt from the Property
Management Company in respect of a flat in Edinburgh for which they had signed
a lease on 6 April 2014, three statements from two people who knew them, and
their statement of 28 March.
7.
Mr Malik and Ms Sadovska
had indeed signed a lease for a flat in
Edinburgh on 6 April 2014 and each gave this as their home address when
interviewed on 17 April. (We are told that they still live together but at a
different address.) On 16 April 2016 they bought wedding rings.
8.
The solicitor’s letter was faxed to the Home Office on Friday 11 April.
The wedding was due to take place on the afternoon of the following Thursday.
Before that could happen, however, immigration officers arrived at the
Registrar’s Office and asked to interview them. They agreed. Each was cautioned
and agreed to be interviewed in English. They were interviewed separately, Mr
Malik from 14.55 to 16.20 and Ms Sadovska
from 14.54 to 16.50, according to the
immigration officers’ records. After the interviews they were detained and thus
unable to marry. Ms
Sadovska
was released soon afterwards, but Mr Malik was
detained until 11 June. On the same day as the interviews, each was issued with
a two part decision notice.
10.
Ms Sadovska
was issued with a notice that she was a person liable to
removal because her removal was justified on grounds of abuse of rights,
specifically that she had attempted to enter into a marriage of convenience
with Mr Malik. The notice referred to regulation 19(3)(c), without explaining
that this was contained in the Immigration (European Economic Area) Regulations
2006. At the time, this provided that “… an EEA national who has entered the
United Kingdom ... may be removed if … (c) the Secretary of State has decided
that the person’s removal is justified on grounds of abuse of rights in
accordance with regulation 21B(2)”. Regulation 21B(1) provided that “The abuse
of a right to reside includes … (c) entering, attempting to enter or assisting
another person to enter or attempt to enter, a marriage or civil partnership of
convenience”. Regulation 21B(2) provided that “The Secretary of State may take
an EEA decision on the grounds of abuse of rights where there are reasonable
grounds to suspect the abuse of a right to reside and it is proportionate to do
so”. Regulation 24(2) provided that where a decision to remove was taken under
regulation 19(3)(c), the person was to be treated as someone to whom section
10(1)(a) of the 1999 Act applied.
11. In each case, the notice was accompanied with notice of a decision to remove.
12. Both appealed to the First-tier Tribunal which heard their appeals together on 4 August 2014 and promulgated a determination refusing them both on 19 August 2014. Their appeals to the Upper Tribunal were heard on 5 February 2015 and a determination refusing them was promulgated on 9 February 2015. Their appeals to the First Division of the Inner House of the Court of Session were refused on 17 June 2016: [2016] CSIH 51. They now appeal to this court.
14. Under the heading “Applicable law”, the First-tier Tribunal judge said this, at para 7:
“In immigration appeals, the burden of proof is on the appellant and the standard of proof required is a balance of probabilities. In human rights appeals, it is for the appellant to show that there has been an interference with his or her human rights. If that is established, and the relevant article permits, it is then for the respondent to establish that the interference was justified. The appropriate standard of proof is whether there are ‘substantial grounds for believing the evidence.’”
It is apparent from his determination that his whole
approach was to require Ms Sadovska
and Mr Malik to prove that their proposed
marriage was not a marriage of convenience, rather than to require the Home
Office to prove that it was.
15. Before the Upper Tribunal the appellants’ complaint was that the First-tier Tribunal judge had taken the interviews as his starting point and given too much weight to the inconsistencies between them and had not considered them in the context of the totality of the evidence, as required by the decision of the Upper Tribunal in Papajorgji v Entry Clearance Officer, Nicosia [2012] UKUT 38, [2012] Imm AR 3 (at para 39).
“However, as has often been said, once the evidence has been heard, questions of onus usually cease to be important (Sanderson v McManus 1997 SC (HL) 55, [1997] UKHL 1, Lord Hope at 62). The view of the UT in Papajorgji (at para 39) that the question, in the Tribunal context, was whether it is more probable than not that the marriage is one of convenience ‘in [the] light of the totality of the information’, accords with that dictum.”
The court went on to say that the First-tier Tribunal had considered all the information and reached a decision based upon it. That decision did not depend upon onus but upon weighing the various factors in the balance. In that context, there was only one standard of proof, that being the balance of probabilities (Scottish Ministers v Stirton 2014 SC 218, the Lord Justice Clerk (Lord Carloway) at paras 117-119).
The law
21.
Ms Sadovska
is an EEA national. Her rights are therefore governed by the
Directive, which the 2006 Regulations were designed to implement in UK law. To
the extent, if any, that the 2006 Regulations do not accurately transpose the
requirements of the Directive, we have to give effect to the Directive rather
than the Regulations and so it is appropriate to focus on the provisions of the
Directive.
“To guard against abuse of rights or fraud, notably marriages of convenience or any other form of relationships contracted for the sole purpose of enjoying the right of free movement and residence, member states should have the possibility to adopt the necessary measures.”
This is therefore provided for in article 35, which is the crucial article in this case:
“Member states may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject to the procedural safeguards provided for in articles 30 and 31.”
“Recital 28 defines marriages of convenience for the purposes of the Directive as marriages contracted for the sole purpose of enjoying the right of free movement and residence under the Directive that someone would not have otherwise. A marriage cannot be considered as a marriage of convenience simply because it brings an immigration advantage, or indeed any other advantage. The quality of the relationship is immaterial to the application of Article 35.”
The definition in the first sentence is repeated in the Commission’s more recent Handbook on addressing the issues of alleged marriages of convenience between EU citizens and non-EU nationals in the context of EU law on free movement of EU citizens, dated 26 September 2014. However, this goes on to explain that:
“the notion of ‘sole purpose’ should not be interpreted literally (as being the unique or exclusive purpose) but rather as meaning that the objective to obtain the right of entry and residence must be the predominant purpose of the abusive conduct.”
But it repeats that:
“On the other hand, a marriage cannot be considered as a marriage of convenience simply because it brings an immigration advantage, or indeed any other advantage (for example the right to a particular surname, location-related allowances, tax advantages or entitlement to social housing for married couples).”
25.
Mr Malik is in a different position from Ms Sadovska.
As an over-stayer
he is, as noted above, liable to be removed under section 10(1)(a) of the 1999
Act. However, had he succeeded in marrying Ms
Sadovska,
he would have become a
“family member” within the meaning of article 2.2 of the Directive. Under
article 7.2, this would bring with it the right of residence for more than
three months, provided that Ms
Sadovska
satisfied one of the conditions in article
7.1(a), (b) or (c). As a “worker” she would satisfy condition (a). Once he had
been living here lawfully for five years, he too would acquire a right of
permanent residence under article 16.2. As with Ms
Sadovska,
of course, he
would be liable to removal under article 35 if their marriage was one of
convenience.
27.
Finally, of course, both Ms Sadovska
and Mr Malik have rights under the
European Convention on Human Rights. Article 8.1 guarantees the right to
respect for private and family life, although under article 8.2 interference is
justified if it is in accordance with the law and “necessary in a democratic
society” to achieve a legitimate aim. Article 12 guarantees the right of “men
and women of marriageable age … to marry and to found a family, according to the
national laws governing the exercise of [the] right”.
Analysis
28.
It is clear from the provisions of the Directive quoted above that Ms
Sadovska
has a right of permanent residence in the United Kingdom. As an EU
citizen, under article 27.1, her freedom of movement can only be restricted on
grounds of public policy, public security or public health. As a permanent
resident, under article 28 she could only be removed if those grounds are
serious. It is not suggested that she can be removed under article 28 on any of
those grounds. She can therefore only be removed, under article 35, if it is
established that she has entered, or attempted to enter, into a marriage of
convenience. Furthermore, although the Regulations permit the respondent to
take steps on the basis of reasonable grounds to suspect that that is the case,
Ms
Sadovska
is entitled to an appeal where the facts and circumstances must be
fully investigated. That must mean, as held in Papajorgji, that the
tribunal has to form its own view of the facts from the evidence presented. 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 not for Ms
Sadovska
to establish that the relationship was a genuine and lasting one. It
was for the respondent to establish that it was indeed a marriage of
convenience.
30.
In the case of a person exercising EU law rights, the tribunal must also
be satisfied that the removal would be a proportionate response to the abuse of
rights established. So it would be one thing to find that the proposed marriage
had been shown to be one of convenience, and therefore that it was right to
prevent it, but quite another thing to find that expelling Ms Sadovska
from the
country where she had lived and worked for so long and had other family members
living was a proportionate response to that.
32.
The position of Mr Malik is different, for he has no established rights,
either in EU law or in non-EU immigration law. In order to benefit from the
Directive, he would have to show that he has a “durable relationship” with Ms
Sadovska.
However, article 3.2 requires the respondent to justify any refusal
of entry or residence in such cases. So if he can produce evidence of a
“durable relationship” (a term which is not defined in the Directive), it would
be for the respondent to show that it was not or that there were other good
reasons to deny him entry.
34.
It follows that the appeal must be allowed and the case remitted for a
full re-hearing by the First-tier Tribunal. In seeking to establish its case,
the respondent will no doubt concentrate on the interviews, the discrepancies
between the appellants’ accounts, and the gaps in Ms Sadovska’s
knowledge of Mr
Malik’s family, together with the sentence in their statement of 28 March that
their thoughts of living together and marriage had not yet “manifested into
action” (which on 28 March was strictly true in that they were not yet living
together or married but they had given notice of intention to marry). But in
considering those discrepancies, the circumstances in which the interviews took
place and the statement was made must be borne fully in mind. Furthermore,
there were many matters on which their accounts were consistent. It turns out,
for example, that Ms
Sadovska’s
mother does indeed live in Lithuania, as Mr
Malik said in explaining why she was not there. There is also a considerable
body of evidence which supports their claim to have been in a genuine relationship,
dating back some time before they gave notice of intention to marry. Should the
tribunal conclude that Mr Malik was delighted to find an EU national with whom
he could form a relationship and who was willing to marry him, that does not
necessarily mean that their marriage was a “marriage of convenience”, still
less that Ms
Sadovska was abusing her rights in entering into it. Their legal
and their factual cases must be considered separately.