Heard at Field House			
On 16 March 2004			
                        VK (Marriage of Convenience) Kenya [2004] UKIAT 00305
IMMIGRATION APPEAL TRIBUNAL

                                                        Date Determination notified:  24/11/2004
         
                                                                                     ................................................	

	Before:		

Mr J Barnes – Vice President
Mr J Perkins – Vice President
	
Between	

	
		APPELLANT	
			
	and		

IMMIGRATION OFFICER - WATERLOO
	
		RESPONDENT 	

Representation:

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

DETERMINATION AND REASONS

1.	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.
2.	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.
3.	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.
4.	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.
5.	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.
6.	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.
7.	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.”
8.	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.”
9.	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.
10.	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.”
11.	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.  
12.	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.
13.	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 between the Appellant and   or the Appellant’s child and   even though   is the Appellant’s stepfather.  She noted that even on the Appellant’s evidence there had been long periods of time when   had had no dealings with them.  Although   recognised how removal would have some impact on     because he had been educated in the United Kingdom and would not be used to life in Kenya it was only when prompted that he made any comment about his relationship   .  The Appellant said that her husband and her son both enjoyed football and watching television.  The Adjudicator did not find that this was enough to establish a protected private and family life.  The Adjudicator found that removal would not be contrary to the Appellant’s rights under Article 8(1) of the European Convention on Human Rights.  She also found in the alternative that there had been no evidence that there were any insurmountable obstacles in the way of   removing to Kenya with the Appellant and her son if, contrary to the adjudicator’s findings, the alleged family life did exist.  It followed that the appellant’s removal would not be disproportionate.
14.	Mr Khubber began his submissions by inviting us to adjourn the matter and refer to the European Court of Justice the question of the proper approach to the interpretation of the words “marriage of convenience”.  This is an area of some controversy.  European law does not provide for an examination of how the parties to a marriage met or why they decided to marry.  However, as Mr Khubber quite properly drew to our attention, the provision in the Rules that a person is not entitled to benefit from a marriage of convenience as a means of circumventing immigration control derives from Council Resolution 12337-97.  Although it is expressed to be without prejudice to community law we see no point in seeking the guidance of the European Court of Justice when the provision complained of comes from a Council Resolution and it is a matter for the national courts to interpret the regulations made.
15.	Mr Khubber submitted there were four fundamental errors in the determination.  The Adjudicator had not shown appreciation of the need to consider the evidence at the date of decision; she had not applied the “higher civil standard”; she had wrongly equated a narrow understanding of cohabitation with the proper meaning of marriage; she had not applied the evidence to the test that she had formulated.
16.	It was common ground between the parties that it was for the Secretary of State to prove that the marriage was a marriage of convenience.  This concession is, presumably, based on the general position in common law that a person who makes an assertion has to prove it.  We are aware of the starred decision of the Tribunal Chang 01TH00100 (Ockelton DP, Drabu VP, and Story VP) that left open the possibility that the proper approach was for the Appellant who wanted to take advantage of her married status to prove that her marriage was not a marriage of convenience and therefore excluded by the Rules.  Mr Ockelton was careful to state in that decision that the Tribunal did not have to decide the point.  Whilst it must remain open to argument we find, given the specific concession of the Secretary of State, that unless the Secretary of State makes it plain in a particular case that he takes a different position (in which case the question will have to be reconsidered) it is now established that it is for the Secretary of State to prove that a marriage is a marriage of convenience if that is what he alleges.  For the reasons already discussed it is clear that the Adjudicator accepted this and set out to apply it.
17.	Mr Khubber submitted that the Adjudicator had applied the wrong standard of proof.  He refers to the Tribunal decision in Kim Fuenum Yuen IAT 1998 (18283) which refers to the allegation that a marriage is a marriage of convenience as an allegation of deceit and that the standard of proof is high.  However we do not agree that there is a special standard of proof.  We have consulted Phipson on evidence at 4-36. This shows that where a serious allegation is made in a civil case the standard of proof remains the civil standard, in other words the balance of probabilities.  However where the allegation made is particularly grave good evidence is needed to overcome the unlikelihood of what is alleged to have happened.  We accept that marriage is a serious matter for most people.  The suggestion that a person has entered into a marriage of convenience is inherently unlikely and for that reason will usually be hard to prove.  We do not accept that it has to be proved to the criminal standard.  It has to be proved to the civil standard in a way that is commensurate with the seriousness of the allegation made.  We see no error in the Adjudicator’s direction at paragraph 25 of the determination that she had applied the ratio in Cheung which was that 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”.  We find no merit in the suggestion that the Adjudicator did not direct herself correctly about the standard and burden of proof that had to be applied.
18.	The concept of “marriage of convenience” has appeared from time to time in the development of the law of immigration control.  Certainly it was a feature of the 1977 Immigration Rules for control on entering.  It is perhaps surprising that it has not been authoritatively defined by the courts.  However Mr Khubber, in his extremely helpful “outline submissions of the Appellant” refers to paragraph 36 of Cheung where the Deputy President accepted that: “the phrase “marriage of convenience” is not to be given the meaning it had acquired in UK immigration law many years ago, before even the (now abolished) “primary purpose” Rule was developed.”  For this reason we have not given close attention to those cases put before us that concerned the “primary purpose rule”.  However Cheung gave little guidance about the nature of a “marriage of convenience” in the Immigration (European Economic Area) Regulations 2000.
19.	Mr Khubber introduced us to the “without substance” test in Yew-Kee Kwonk v Secretary of State for the Home Department (TH-23417-93) where the Tribunal considered an appeal by a citizen of Hong Kong who had married an Irish national.  There the Tribunal (Professor D C Jackson) decided that treaty rights could not extend to a party to a marriage “which exists only as a shell.  Particularly if this is so when the relationship is entered into specifically to achieve the benefits of residence attaching to a marriage of substance.”  He continued “the question is therefore whether on the evidence the marriage of Mr and Mrs Kwonk was a shell or, at least, was entered into by Mr Kwonk to achieve his residence.”
20.	Professor Jackson built on the Tribunal’s decision in Kwonk in Kam Yu Lau, Appellant and Secretary of State for the Home Department TH/45202/92 (10859) where Professor Jackson said:
“where the relationship is entered into solely for the purpose of achieving residence it seems to us, as it seemed to the Tribunal in Kwonk, to undermine the very purpose for which the right is conferred.  To argue that enquiry into the substance of the status would itself deter freedom of movement is to ignore that substance.  We agree and follow the Tribunal in Kwonk in focusing on the substance and purpose of the relationship on which the right is founded rather than on the outward reflection of it.  There has been some suggestion that this view would simply introduce the concept of “primary purpose” into community law.  It is argued that for the Secretary of State to succeed in establishing a sham marriage he must show that there is no substance in the relationship.  This is far removed from assessing the purpose and is to be decided according to the evidence produced of a relationship.” 
In Kim Fung Yuen and Secretary of State for the Home Department (Professor Jackson) TH/60615/94 (18283) the Tribunal emphasised “it must be shown that the marriage when entered into had no substance”.  The Tribunal left open the possibility of a marriage that began as a sham becoming genuine by the date of decision.  Although most of the jurisprudence of this point emanates from Tribunals chaired by Professor Jackson we know of no other decisions that undermine them.
21.	It follows that there is merit in Mr Khubber’s submission that the relevant test is not cohabitation, or even an intention to cohabit but whether, in all the circumstances, the marriage has substance.  Apart from these decisions it must be right that cohabitation is a defining characteristic of a marriage.  We all know of stories of serving prisoners marrying.  They cannot cohabit.  Further it is by no means fanciful to imagine a couple living in different parts of the United Kingdom pursuing independent careers but still enjoying what is to them a fulfilling marriage.  We do not intend to set out an exhaustive list of the qualities that indicate that a marriage has substance.  Certainly cohabitation is something that can be expected.  If there is no cohabitation then its absence should be explained but a decision maker must be open to the possibility that there may be very good reasons other than the marriage being without substance for the parties to a marriage choosing not to cohabit.
22.	We cannot accept that a marriage of substance would be without signs of companionship and support.
23.	We do accept that a marriage that started off as a marriage of substance but descended to something that was of form only would not normally be a marriage of convenience within the meaning of the phrase in the Immigration (European Economic Area) Regulations 2000.  It is theoretically possible that a marriage that would otherwise have been terminated by divorce was continued for the sole purpose of conferring a benefit under European law.  It may be that such a marriage would be characterised properly as a marriage of convenience but the facts that could support such a conclusion would be highly unusual.  We find that “Marriage of convenience” is a phrase that essentially describes the state of a marriage at its inception.  We also find that a marriage that began this way could become a marriage of substance as the relationship between the parties developed but it is inherently unlikely that a marriage would develop in this way because there would be no relationship between the parties from which anything intimate could be expected to grow if the marriage was a marriage of convenience at its inception.  
24.	We reject the submission in the Presenting Officer’s skeleton argument before the Adjudicator that a couple who have no intention from the outset of the marriage of living together as man and wife in a settled and genuine relationship is necessarily a marriage of convenience.  The absence of such an intention is significant evidence but no more.  
25.	However it is plain to us from paragraph 22.6 of the determination that the Adjudicator did not apply the wrong test.  She noted that the parties to the marriage did not live together immediately after their marriage and found that when they married they had no intention of living together in the foreseeable future.  However the Adjudicator also noted that there was no evidence beyond the marriage certificate, wedding photographs and the evidence of the Appellant and her husband that there was a marriage of substance.  Not only did they not live together but they did not share their money in a joint bank account.  Neither was there any evidence of any joint purchases or bills or joint activities or evidence from friends or family members explaining how they lived as a couple.  The Adjudicator looked beyond cohabitation and, we find, reached a perfectly sustainable conclusion that this marriage was at its inception and at all material times a sham marriage or a marriage of convenience within the meaning of the rule.
26.	Although framed as a “human rights” case there is at the core of this case an appeal against an immigration decision made on 23 July 2001.  That must be the date that the Adjudicator had to consider.  The question the adjudicator should have asked was “was the marriage entered into on 8 May 2000 a marriage of convenience within the Rules when the Immigration Officer made his decision on 23 July 2001” For the reasons given above this consideration of this question must have involved considering the status of the marriage at its inception.  And the Adjudicator had no other date in mind.  Obviously when considering the appeal against the decision under the immigration rules the adjudicator had to consider the facts at the date of decision.  The adjudicator does not appear to have said in terms that this is what she has done.  However there is no reason for her to have found that this marriage was ever anything other than a marriage of convenience.  It follows that the adjudicator’s apparent failure to direct herself that she had to consider the status at the date of decision is not material in this case.
27.	The only remaining area of concern is the Adjudicator's consideration of the Article 8 claim.  The Adjudicator noted that the Appellant was concerned for herself and also for her child who was well settled in the education system in the United Kingdom and the Adjudicator does not appear to have considered the interference with the private and family life of the Appellant and her son consequent on their removal from the United Kingdom.  However we see no basis in which she could have concluded that the removal was disproportionate.  The Appellant’s own immigration status has always been precarious.  There is no basis on which the Adjudicator could have concluded that removing her was disproportionate to the proper purpose of enforcing immigration control.  
28.	The case of the child is a little different.  He had served his own “One-Stop Notice” in which he complained that he would be separated from his stepfather.  Given the nature of the relationship that exists between the Appellant and her husband we do not accept that there is a protected private and family life established between the Appellant’s son and her husband.  This is a marriage of convenience and the normal presumption in favour of family life does not apply.  However even if we are wrong there we see no basis for saying that the removal is disproportionate.  Of course we must always pause and reflect on the consequences of removal of a young person who has known no life outside the United Kingdom.  However he would be removed with his mother.  There is no evidence that he would be facing destitution or other similar hardship.  Many children grow up happily in Kenya.  We see no basis on which the Adjudicator could have concluded that removal was disproportionate.
29.	In the circumstances although we are grateful to Mr Khubber for his very helpful submissions on the case law relating to marriage we find that the Adjudicator was not wrong in law.  We dismiss this appeal.

Jonathan Perkins
Vice President
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