ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Appeal Number: IA/235114/2012
Strand, London, WC2A 2LL
B e f o r e :
(Vice President of the Court of Appeal (Civil Division)
LORD JUSTICE RICHARDS
LORD JUSTICE FLOYD
| Luciara Machado Rosa
|- and -
|Secretary of State for the Home Department
Robert Kellar (instructed by the Government Legal Department) for the Respondent
Hearing date : 17 December 2015
Crown Copyright ©
Lord Justice Richards :
The burden of proof on the issue of marriage of convenience
The legislation governing the issue of a residence card
"17(1) The Secretary of State must issue a residence card to a person who is not an EEA national and is the family member of a qualified person or of an EEA national with a permanent right of residence under regulation 15 on application and production of
(a) a valid passport; and
(b) proof that the applicant is such a family member."
"7(1) Subject to paragraph (2), for the purposes of these Regulations the following persons shall be treated as the family members of another person
(a) his spouse ."
Regulation 2 provides that "'spouse' does not include a party to a marriage of convenience".
"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) of the preamble to the Directive is in similar terms.
"a marriage concluded between a national of a Member State or a third-country national legally resident in a Member State and a third-country national, with the sole aim of circumventing the rules on entry and residence of third-country nationals and obtaining for the third-country national a residence permit or authority to reside in a Member State."
The tribunal procedural rules
"53(1) If an appellant asserts that a relevant decision ought not to have been taken against him on the ground that the statutory provision under which that decision was taken does not apply to him, it is for that party to prove that the provision does not apply to him.
(a) an appellant asserts any fact; and
(b) by virtue of an Act, statutory instrument or immigration rules, if he made such an assertion to the Secretary of State, an immigration officer or an entry clearance officer, it would have been for him to satisfy the Secretary of State or officer that the assertion was true,
it is for the appellant to prove that the fact asserted is true."
The relevant national case-law
"7. In a case such as the present, an applicant needs to establish that his sponsor is a person exercising treaty rights, and that he himself is related in a particular way to the sponsor. The relationship has to be the relationship defined by the Regulations, and in the case of the relationship of spouses, part of that definition is that the marriage is not one of convenience. So the appellant's general duty to prove his case includes a duty to prove that his marriage is not one of convenience."
"9. It was not suggested before us that 'statutory provision' in rule 53(1) does not include a statutory instrument. The EEA Regulations are a statutory instrument. As we have indicated, reg 2 of those Regulations provide that a marriage does not include a marriage of convenience, and it seems to us that, in a case such as this, the appellant is asserting that that provision does not apply to him in the sense that it is irrelevant to the determination of his application. If that is right, it follows that the burden of proof is placed on the appellant by the Procedure Rules."
"13. It is clear that the terms of the Citizens Directive allow national law to make regulations to prevent abuses founded on marriages of convenience. So far as the detection of such marriages is concerned, it is clear from the Council Resolution that the relevant residence documents are not to be issued if there are 'factors which support suspicions for believing that the marriage is one of convenience', until the suspicions are resolved in the applicant's favour. That appears to us to be a clear indication that, so far as EU law is concerned, the burden of proof, as it is called in English law, rests on the appellant, because, the suspicions having arisen, the matter will be resolved against him unless the suspicions are resolved in his favour. The Resolution clearly indicates that what Wigmore calls 'the risk of non-persuasion' is borne by the appellant."
"14. As we have said, these three reasons taken together lead us to the view that the burden of proving that a marriage is not one of convenience lies on the appellant. We would, however, also associate ourselves with the wording of the Council Resolution to this extent. Not every applicant needs to prove that his marriage is not one of convenience. The need to do so only arises where there are factors which support suspicions for believing the marriage is one of convenience. Translated into the technical language of the English law of procedure and evidence, that means that there is an evidential burden on the respondent. If there is no evidence that could support a conclusion that the marriage is one of convenience, the appellant does not have to deal with the issue. But once the issue is raised, by evidence capable of pointing to a conclusion that the marriage is one of convenience, it is for the appellant to show that his marriage is not one of convenience."
"20. This passage indicates that the AIT concluded that there was no burden on an applicant in an EU case until the respondent raised the issue by evidence. If there was such evidence it was for the applicant to produce evidence to address the suspicions. In our judgment such an approach can be described as one of an evidential burden in the first place on the respondent and then shifting to the claimant in the light of the relevant information rather than a formal legal burden. We agree with that approach."
"33. We have already expressed our agreement with the AIT in IS that a failure on the claimant to participate in the investigation and contribute information to dispel the reasonable suspicion may lead to a lawful refusal of that application. If the AIT was intending to go further than this and decide that once evidence of reasonable suspicion has been raised, there is a legal burden on the applicant to demonstrate that it is more probable than not the marriage is not one of convenience, we would have reservations about such an approach and the whole issue will need further examination in a future case where the nature of the dispute requires it to be decided. In our judgment the first two reasons given [by] the AIT for its conclusion are unpersuasive of such a proposition and the third reason does not lead to such a conclusion.
34. The first reason the AIT gave for the burden of disproving a marriage of convenience being on the claimant was that it fell on the claimant to establish that she was a family member. We agree that the claimant must establish that she is a family member; but in the ordinary case she does this by producing the basic documents set out in the Directive. Where there is no reason to suspect that the claim is fraudulent, or the marriage one of convenience, that is conclusive of the matter. Regulation 12 of the Immigration (EEA) Regulations 2006 does not in terms require the claimant to prove a negative. She must prove that she is married, but that marriage will not avail if it turns out to be one of convenience.
35. The second reason given was rule 53 of the Asylum and Immigration Tribunal (Procedure) Rules 2005. This provision does not appear to us to be relevant. It places the burden of proof on someone who claims an exemption from an immigration decision by reason of status, usually British nationality. That has no purchase here. The claimant is not claiming an exemption, she seeks the issue of the document that proves her right of admission because she is a family member and there is no reason to suspect fraud.
36. It is clear that the justification for exclusion of marrriages of convenience from those otherwise entitled to a residence document under the Directive is to be found in the EU law principle of fraud or abuse of rights. That very much suggests that in any dispute on appeal as to the nature of the marriage, it would in the last instance be for the respondent to satisfy the judge of the factual basis of the personal conduct of the claimant relied on to exclude her from the entitlement. .
37. It is not enough that the ECO honestly suspects there is a marriage of convenience; the claimant will only be disqualified if it is established that it is. Adverse inferences may be drawn by a claimant's failure to provide data reasonably open to her in the course of the investigation or appeal; but that cannot form the sole or decisive reason for the conclusion. We observe that the guidance of the European Commission issued in respect of the Citizens Directive is explicit in placing the burden of proof on the state and invites the state to set out indicative criteria for and against the proposition that the marriage is one of convenience ...."
"13. What it comes down to is that as a matter of principle a spouse establishes a prima facie case that he or she is a family member of an EEA national by providing the marriage certificate and the spouse's passport; that the legal burden is on the Secretary of State to show that any marriage thus proved is a marriage of convenience; and that the burden is not discharged merely by showing 'reasonable suspicion'. Of course in the usual way the evidential burden may shift to the applicant by proof of facts which justify the inference that the marriage is not genuine, and the facts giving rise to the inference may include a failure to answer a request for documentary proof of the genuineness of the marriage where grounds of suspicion have been raised. Although, as I say the point was not argued before us, that approach seems to me to be correct ."
Other EU materials
"The burden of proof lies on the authorities of the Member States seeking to restrict rights under the Directive. The authorities must be able to build a convincing case while respecting all the material safeguards described in the previous section. On appeal, it is for the national courts to verify the existence of abuse in individual cases, evidence of which must be adduced in accordance with the rules of national law, provided that the effectiveness of Community law is not thereby undermined."
The arguments on the present appeal
The First-tier Tribunal's determination
"40. We do not accept that the appellant's marriage to Ms Rosa is subsisting. There is the difference in evidence between that of Ms Rosa and the appellant, the former saying they met sometime before 2005 and there became a relationship in 2005, and the appellant saying they met in 2008. The appellant was vague as [to] where they met. We find that they married for convenience to enable Ms Rosa to remain in the United Kingdom. Ms Rosa had been deported from this country to Brazil in 2007. She was able to return to this country after marrying the appellant in July of 2008 in Portugal. When Ms Rosa came to this country, we do not accept that she ever lived with the appellant. In any event, within a short space of time he was arrested. The significant factor is that during the time he has been in prison, Ms Rosa has not visited him once. We do not accept the appellant's evidence that the reason she had not visited him was that she had started up a business and worked during the week and at weekends. We do not accept Ms Rosa's explanation that the appellant told her he did not want her to visit him or she thought it would be embarrassing for the appellant if she visited him. It is her own business, and she could have taken a day off from time to time to visit the appellant. We find this indicative of the marriage not subsisting.
41. It was put to Ms Rosa in evidence that she could attend the hearing to give evidence but she could not visit the appellant in prison. She said that the solicitor told her it was very important for her to attend the hearing and she is the wife of the appellant. It is very important to her because the basis of her stay in this country is her marriage to the appellant. We therefore regard Ms Rosa's evidence as being given in order that she can stay in this country based on her marriage to the appellant."
"2. It was not in issue that the Appellant and her husband had gone through a ceremony of marriage and it was accepted that her husband was exercising treaty rights in the United Kingdom. The only issue before me was whether the marriage was subsisting or was a marriage of convenience. In Papajorgji it was held that, following IS Serbia , if there were evidence that gave rise to suspicions that the marriage was one of convenience, it was for the applicant, not the Respondent, to produce evidence to address those suspicions. In this appeal a previous Tribunal was satisfied that the marriage was one of convenience and in those circumstances I was satisfied that it was for the Appellant to show on the balance of probabilities that the marriage was genuine and subsisting.
4. The previous determination is not the starting point in this appeal following AA (Somalia) . Mr Hodgetts [counsel for Mrs Rosa] in his submissions accepted that he had to deal with the issues raised by the previous determination."
"8. In addressing the inconsistencies in the evidence before the previous Tribunal, both the Appellant and her husband have given further inconsistent evidence before me."
"20. The two witnesses who attended to give evidence were customers of the Appellant at her hairdressing salon. The first, Ms Cabral said that she had known the Appellant since 2009 as a customer at her salon, she was told at that time her husband was in prison and she had subsequently seen him at the church they all attend. She had also seen the Appellant's husband at the salon before they moved to their current address which she had not visited. She said that before setting up her current salon, the Appellant had one in Lincoln Road, Peterborough, which was also the evidence of the Appellant, but that after leaving Lincoln Road and before opening up her current salon the witness said that the Appellant spent some time in London and then returned to Peterborough. That was not the evidence of the Appellant who maintains that she has been living in Peterborough since 2008.
21. The second witness, Ms Arruda said that she met the Appellant in about 2010 at the salon she now runs in Peterborough and she was subsequently told that the Appellant's husband was in prison. She said that she socialised with the Appellant and her husband whom she first met in 2011 after he was released from prison. She also saw them at church and had visited them at their new home. She believed they had a genuine loving relationship as husband and wife. Her evidence was inconsistent with the Appellant's as to when the current salon opened, the Appellant says it was April 2011 not 2010 when she was working elsewhere.
21. The documentary evidence said to support the cohabitation of the Appellant and her husband was lacking in one important regard and that is that there was no tenancy agreement. There was no tenancy agreement of the salon that she claims to run either. She said it is because they rent the properties from a friend and there is no need for a tenancy agreement. There was no evidence from the friend, Rafiq.
22. I do however accept that it is likely that the Appellant and her husband have been living under the same roof since he left prison. There are some documents using that address in his name although of course it is very easy to change a postal address. However I will accept that it is likely that he has been there for some time and that he also attends church with the Appellant and her friends. I do not however accept that they live there as husband and wife. In addition to inconsistencies in the evidence before the panel in the deportation hearing there has been further inconsistent evidence in an attempt to explain the matters which troubled the panel. The Appellant and her husband both accept that she lied in the witness statement lodged in support of her appeal, and her husband admits that he says he told her to lie. Neither was able to explain what they thought was the necessity of that lie as both suggested it was to protect his mother but they say his mother has now visited them in the United Kingdom and is happy with the situation.
23. They are inconsistent both with each other and with their own earlier evidence as to whether or not they lived together prior to the husband going to prison and each changed their evidence again during the course of the hearing. The evidence they have given very strongly suggests that each has deliberately lied in an attempt to ensure that the Appellant is allowed to remain in the United Kingdom."
"26. I am not satisfied on the evidence that I have heard that they were in a relationship before the husband went to prison, that they lived together before he went to prison, that they lived together as husband [sic] when he came out of prison or that they are now or ever have been in a subsisting relationship of husband and wife. I am entirely satisfied that it is a marriage of convenience and always has been. They have been thoroughly inconsistent in their evidence, each admits to lying, the Appellant failed to have visited the man she claims to be her husband at a time when he was in great need of her while he was in prison for nearly two and a half years and only re-appeared when he was at risk of being deported which would [of] course have removed the right she then claimed to remain in the United Kingdom as the wife of an EEA national exercising treaty rights.
27. I take into account that the Appellant has previously overstayed and remained in the United Kingdom in order to work knowing that she had no right to do so. She admitted working illegally in Portugal for a year and has admitted lying in these proceedings. She is thoroughly untrustworthy and has produced no satisfactory evidence to show that she is in a subsisting relationship or that it has ever been her intention to live with her husband as husband and wife.
28. There were witness statements from other witnesses who did not attend the hearing. There was no explanation for the absence of the witnesses. They all say that the Appellant and her husband are in a relationship and one, Mr Abbas, says that the Appellant is an honest, reliable and hardworking person. She may be hardworking but I do not find her to be honest or reliable, but mere assertions that the couple are in a relationship is insufficient to outweigh the very considerable evidence which shows that they have been willing to lie not only in these proceedings but in earlier proceedings.
29. In conclusion I am not satisfied that the Appellant is in a subsisting relationship with her husband although I accept that they went through a ceremony of marriage and that they have been living together under the same roof since September 2011."
The first ground of appeal: error in relation to burden of proof
The second ground of appeal: erroneous focus on whether the marriage was "genuine and subsisting"
The third ground of appeal: the evidence of two witnesses
The fourth ground of appeal: mistaken basis of adverse credibility findings against the appellant and her husband
Lord Justice Floyd :
Lord Justice Moore-Bick :