England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Appeal Number: IA/235114/2012

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/01/2016

Lord Justice Richards :

1. This case was listed for hearing under the title LR (Brazil) v Secretary of State for the Home Department, but there is no reason for retaining the anonymity of the appellant, Mrs Rosa.
2. Mrs Rosa is a Brazilian national who was removed from the United Kingdom in 2007 as an overstayer. In July 2008 she married a Portuguese national, Mr De Oliveira, in Portugal. He was living in the United Kingdom at the time. She joined him in the United Kingdom three months after the wedding. In January 2009 he was arrested at Heathrow Airport on suspicion of importing cocaine, an offence to which he subsequently pleaded guilty. He was sentenced to five years' imprisonment, from which he was released in September 2011. Prior to his release a decision was taken to deport him, but he appealed successfully to the First-tier Tribunal against that decision. Mrs Rosa gave evidence to the tribunal in support of that appeal.
3. In April 2012 Mrs Rosa applied for a residence card under regulation 17 of the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations") as Mr De Oliveira's spouse. Her application was refused by the Secretary of State, on the ground that her marriage to Mr De Oliveria was a "marriage of convenience". Her appeal against that decision was dismissed by the First-tier Tribunal and a further appeal was dismissed by the Upper Tribunal. She now appeals to this court against the determination of the Upper Tribunal, with permission granted by a Judge of the Upper Tribunal.
4. Although the appeal is against the determination of the Upper Tribunal, the focus in practice is upon the determination of the First-tier Tribunal and whether that determination was vitiated by material error of law. The grounds of appeal are, in summary, that the First-tier Tribunal (i) wrongly concluded that the appellant bore the legal burden of proof on the issue of marriage of convenience, (ii) wrongly focused on whether the marriage was "genuine and subsisting" instead of whether it was a marriage of convenience, (iii) failed to deal adequately with the evidence given by two witnesses called on behalf of the appellant, and (iv) made an adverse credibility finding in relation to the appellant on the basis of a mistaken understanding of the evidence.
5. Only the first of those grounds raises an issue of principle. I will consider that issue before turning to examine whether the First-tier Tribunal erred in any of the respects alleged and, if so, whether any such error was material.

The burden of proof on the issue of marriage of convenience

The legislation governing the issue of a residence card

6. Regulation 17 of the EEA Regulations governs the issue of residence cards. It provides:

"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. Regulation 7 sets out who is to be treated as a "family member" for these purposes:

"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".

8. Since the date that is material for the purposes of the present case, the EEA Regulations have been amended to introduce additional procedural provisions relevant to the issue of burden of proof. By regulation 17(8) as amended, regulation 17 is subject to regulation 20(1). By regulation 20(1) as amended, the Secretary of State may refuse to issue a residence card on grounds of abuse of rights in accordance with regulation 21B(2). By regulation 21B(1)(c), the abuse of a right to reside includes entering into a marriage of convenience; and by regulation 21B(2) the Secretary of State may take a decision on the ground 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. Further, where the Secretary of State wants to verify the eligibility of a person to apply for documentation issued under Part 3, which includes the issue of a residence card under regulation 17, regulation 20B provides that the Secretary of State may invite that person to provide evidence to support the application and may draw factual inferences if the person fails without good reason to provide the additional information requested. In relation to the period under consideration in this case, however, those various additional provisions must be put firmly to one side.
9. The EEA Regulations implement Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of Member States ("the Directive"). There is no suggestion in this case of incorrect or inadequate transposition of the Directive. It is therefore unnecessary to set out the detailed provisions of the Directive relating to the rights of residence of family members or the issue of a residence card to them. It is sufficient to note that in cases of abuse, including marriages of convenience, the Directive permits Member States to exclude the rights otherwise conferred by the Directive. Thus, Article 35 provides:

"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.

10. Neither the EEA Regulations nor the provisions of the Directive contain a definition of "marriage of convenience", but in R (Baiai) v Secretary of State for the Home Department (Nos. 1 and 2) [2008] UKHL 53, [2009] 1 AC 287, at paragraph 6, Lord Bingham said that it was difficult to improve on the definition (which the Secretary of State accepted in that case as apposite) in Article 1 of EC Council Resolution 97/C 382/01 of 4 December 1997 on measures to be adopted on the combating of marriages of convenience. That article defines a marriage of convenience as –

"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

11. The tribunal procedural rules in force at the material time, though now superseded, were the Asylum and Immigration Tribunal (Procedure) Rules 2005. The only rule to which it is necessary to refer is rule 53, entitled "Burden of proof", which provided:

"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.

(2) If –

(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

12. The Asylum and Immigration Tribunal in IS (marriages of convenience) Serbia [2008] UKAIT 00031 ("IS Serbia") held that it was for an appellant to prove before an immigration judge that his marriage was not a marriage of convenience. The tribunal gave a number of reasons for that conclusion, stating that perhaps none was itself decisive but together the result was compelling. The first was that, generally speaking, it is for the appellant to prove his case:

"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."

13. The tribunal stated that the second reason tended to reach the same conclusion by a completely different route. If the first reason did not persuade, that would be because the provision that a marriage does not include a marriage of convenience was not an essential part of what the appellant had to prove but was something additional which might arise in some cases. But then rule 53 of the tribunal procedure rules, quoted above, was relevant and:

"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."

14. The third reason was said to be found in the relevant provisions of EU law. The tribunal quoted Article 35 and recital (28) of the Directive. It also quoted a passage from the Council Resolution of 4 December 1997 on measures to be adopted on the combating of marriages of convenience. The Council Resolution lists factors which may provide grounds for believing that a marriage is one of convenience, and states that "[w]here there are factors which support suspicions for believing that a marriage is one of convenience, Member States shall issue a residence permit … on the basis of the marriage only after the authorities competent under national law have checked that the marriage is not one of convenience". The tribunal continued:

"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."

15. Having set out those three reasons, the tribunal went on to make the following observations:

"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."

16. The decision in IS Serbia was considered by the Upper Tribunal in Papajorgji (EEA spouse – marriage of convenience) Greece [2012] UKUT 00038 (IAC) ("Papajorgji"), which concerned the refusal of a family permit under regulation 12 of the EEA Regulations on the ground that the marriage was a marriage of convenience. Having quoted the central part of paragraph 14 of the decision in IS Serbia, the tribunal in Papajorgji stated:

"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."

17. Later in its decision, however, the tribunal in Papajorgji made further observations on the burden of proof, as follows:

"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 ...."

18. The tribunal went on to state that the standard of proof is the civil standard of balance of probabilities, as explained by the House of Lords in Re B (Children) [2008] UKHL 35, [2009] 1 AC 11. That point is common ground before us, irrespective of where the burden of proof lies.
19. The reasoning in Papajorgji was endorsed recently by this court in Agho v Secretary of State for the Home Department [2015] EWCA Civ 1198 ("Agho"), though the issue did not fall for decision in that case and the point was not argued. In the course of a judgment with which Moore-Bick LJ and Vos LJ agreed, Underhill LJ said this about Papajorgji:

"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

20. Non-binding guidance issued by the European Commission on the Directive (COM (2009) 313 Final, 2 June 2009) was referred to in paragraph 37 of the decision in Papajorgji and was appended to that decision. Paragraph 4.2 of the guidance considers marriages of convenience and, as stated in Papajorgji, is explicit with regard to the burden of proof:

"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."

21. The last sentence of the passage I have quoted refers by way of footnote to the judgment of the European Court of Justice in Case C-110/99, Emsland-Stärke GmbH v Hauptzollamt Hamburg-Jonas [2000] ECR I-11569. That case concerned abuse of the system of export refunds on agricultural products. Having identified the elements required for a finding of the abuse, the Court stated in paragraph 54 that "[it] is for the national court to establish the existence of those two elements, 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

22. For the appellant, Mr Southey QC submitted that the correct position is as stated in Papajorgji and Agho: the legal burden is on the Secretary of State to show that any marriage otherwise proved is a marriage of convenience, but the evidential burden can shift.
23. For the Secretary of State, Mr Kellar submitted that the burden of proof is a matter for national law, not EU law: the Directive is silent on the issue, and Emsland-Stärke GmbH shows that it is for the national court to apply national procedural rules in determining whether there has been an abuse. He argued in support of the conclusion in IS Serbia and of the tribunal's reasoning in that case by reference to the terms of the EEA Regulations and of the tribunal procedure rules. He relied on paragraph 20 of the decision in Papajorgji in so far as it expressed agreement with IS Serbia, but he took issue with the analysis in paragraphs 33-37 of Papajorgji as to where the legal burden of proof lies. He submitted that the reasoning in that passage was obiter and wrong and that this court's endorsement of it in Agho was likewise obiter and wrong.

Discussion

24. In my judgment, the legal burden lies on the Secretary of State to prove that an otherwise valid marriage is a marriage of convenience so as to justify the refusal of an application for a residence card under the EEA Regulations. The reasoning to that effect in Papajorgji, as endorsed in Agho, is compelling.
25. I do not accept Mr Kellar's submission that the burden of proof is a matter for national law alone. The EEA Regulations have to be interpreted and applied in line with the Directive which they implement. Although the Directive is silent as to burden of proof, the Commission's guidance (paragraph 20 above) provides the key to the correct approach under it. Article 35 of the Directive provides that the rights otherwise conferred by the Directive may be refused, terminated or withdrawn in the case of abuse of rights or fraud, such as marriages of convenience. As a matter of general principle, one would expect that the burden of proving that an exception applies should lie on the authorities of the Member State seeking to restrict rights conferred by the Directive – in this case, that it should lie on the Secretary of State when seeking to rely on the existence of a marriage of convenience as a reason for refusing a residence card to which the applicant is otherwise entitled. That is the approach set out clearly in the Commission's guidance, and there is no reason to doubt the correctness of the guidance on the point.
26. The guidance also shows the subsidiary role that national procedural rules have in this context. As a matter of EU law, the burden of proof lies on the authorities of the Member State seeking to restrict rights under the Directive, but it is for the national court to verify the existence of the abuse relied on, evidence of which must be adduced in accordance with the rules of national law. Emsland-Stärke GmbH is fully consistent with that approach and provides no support to Mr Kellar.
27. In any event, I do not accept that the relevant provisions of national law lead to the conclusion that Mr Kellar seeks to draw from them. Regulation 17 of the EEA Regulations provides that the Secretary of State must issue a residence card on application and production of a valid passport and proof that the applicant is a family member of a relevant EEA national. On the face of it, production of a marriage certificate is sufficient proof that the applicant is such a family member. It is true that, by the combined effect of regulation 7 and regulation 2, "family member" does not include a party to a marriage of convenience. But Mr Kellar rightly stopped short of submitting that every applicant for a residence card on the basis of marriage has to produce proof that the marriage was not one of convenience. He said that such proof needed to be produced only where the Secretary of State raised a reasonable suspicion that the marriage was not one of convenience. When translated into the position before the tribunal, that is tantamount to saying that the legal burden of proof in relation to marriage of convenience lies on the Secretary of State but that if the Secretary of State adduces evidence capable of pointing to the conclusion that the marriage is one of convenience, the evidential burden shifts to the applicant.
28. Mr Kellar's reliance on rule 53 of the tribunal procedure rules is misplaced. An applicant appealing against the refusal of a residence card under regulation 17 of the EEA Regulations is asserting that regulation 17 applies; he or she is not asserting that the definition of "spouse" in regulation 2 does not apply. I do not think that rule 53 is of any help.
29. What I have set out above does little more than to expand upon paragraphs 33 to 37 of the decision in Papajorgji and to reject Mr Kellar's criticisms of the reasoning in those paragraphs. It seems to me that paragraph 14 of the decision in IS Serbia, which prompted the tribunal in Papajorgji to say what it did about the legal burden of proof, was seriously confused. It stated that the burden of proving that a marriage is not one of convenience lies on the appellant, but it also stated that 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. If, however, the legal burden lies on the appellant, the appellant has to adduce some evidence in order to discharge that burden: in the absence of any evidence either way, the appellant will fail. I do not think that that can have been the result intended by the tribunal. The result that I think the tribunal must have intended is achieved if the legal burden of proof lies on the Secretary of State throughout but the evidential burden can shift, as explained in Papajorgji. In my judgment, that is the correct analysis.
30. Having dealt with the issue of principle that arises in the appeal, I now turn to consider the First-tier Tribunal's determination and the grounds of appeal in respect of it.

The First-tier Tribunal's determination

31. Part of the background to the determination of the First-tier Tribunal in the present case was the determination promulgated in September 2011 by a differently constituted First-tier Tribunal in the appeal by Mr De Oliveira against the decision to deport him – an appeal in which Ms Rosa had given evidence (see paragraph 2 above). The findings in Mr De Oliveira's appeal included the following:

"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."

32. The guidelines in Devaseelan v Secretary of State for the Home Department [2002] UKIAT 00702, [2003] Imm AR 1 as regards the status of a previous determination involving a material overlap in the evidence are qualified in a case such as this, where Mrs Rosa was a witness in, but not a party to, the previous proceedings: see AA (Somalia) v Secretary of State for the Home Department [2007] EWCA Civ 1040, [2008] INLR 1, in particular at paragraphs 69-70 per Carnwath LJ (with whom Ward LJ agreed). It is unnecessary, however, to examine that point in any detail, given the concession made on Mrs Rosa's behalf in her own appeal that it was necessary to deal with the issues raised by the determination in Mr De Oliveira's appeal (see below).
33. In its determination in Mrs Rosa's appeal, the First-tier Tribunal set out the relevant issue and the way in which the previous determination was considered to bear upon it:

"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."

34. The tribunal went on to summarise the factual background and the reasons for the relevant finding in the previous determination. It then stated:

"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."

35. It proceeded to examine the various inconsistencies, which included inconsistent evidence as to when the appellant and her husband first met; as to whether his parents attended their wedding; as to whether the appellant and her husband lived together prior to the husband's imprisonment; and as to the reasons why she did not visit him in prison. The tribunal stated that the inconsistencies all supported the conclusion of the tribunal in the husband's appeal that the marriage was one of convenience (paragraph 18), and that in her latest witness statement the appellant had lied that his parents attended the wedding ceremony (paragraph 19). The determination then considered the other evidence in the appeal:

"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."

36. Having then referred to two letters which the appellant said she had written to her husband in prison, and which in the tribunal's view did not show a continuing loving relationship between them, the determination concluded:

"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."

37. I do not propose to deal separately with the determination of the Upper Tribunal. It suffices to state that the Upper Tribunal found that there was no material error of law in the determination of the First-tier Tribunal.

The first ground of appeal: error in relation to burden of proof

38. Mr Southey submitted that the First-tier Tribunal erred in law in holding that the legal burden of proof lay on the appellant. In his submission, the error is clear from the last sentence of paragraph 3 of the determination ("I was satisfied that it was for the Appellant to show on the balance of probabilities …") and runs through the decision. It provides the starting point for paragraph 26 ("I am not satisfied on the evidence … that they are now or ever have been in a subsisting relationship of husband and wife") and thereby affects the further finding in the same paragraph that "I am entirely satisfied that it is a marriage of convenience and always has been". It feeds through to the conclusion in paragraph 29 ("I am not satisfied that the Appellant is in a subsisting relationship with her husband …"). This court should not conclude that the outcome would inevitably have been the same if the tribunal had directed itself correctly as to the burden of proof. It follows that the error of law was material.
39. I have already held that the legal burden of proof on the issue of marriage of convenience lies throughout on the Secretary of State. It follows that the First-tier Tribunal was indeed in error in proceeding on the basis that it was for the appellant to show on the balance of probabilities that the marriage was not a marriage of convenience. In my judgment, however, the error was not material. This was not one of those rare cases that turns on where the legal burden of proof lies. The answer to the question whether the appellant's marriage was a marriage of convenience was clear-cut. The findings of the previous tribunal in her husband's appeal were sufficient to shift the evidential burden in this case onto the appellant, as was effectively recognised in her counsel's concession that the issues raised by the previous determination had to be dealt with. The appellant produced a body of evidence in an attempt to deal with them. But the tribunal found that the inconsistencies in the evidence of the appellant and her husband supported the conclusion of the previous tribunal that the marriage was one of convenience and that there was no satisfactory evidence that it had ever been the appellant's intention to live with her husband as husband and wife. The emphatic finding in paragraph 26 that "I am entirely satisfied that it is a marriage of convenience and always has been" is a fair reflection of the tribunal's overall reasoning and is the clearest of indications that the outcome did not turn on the tribunal's direction as to the burden of proof. It is fanciful to suggest that the finding might have been different if the tribunal had approached the matter on the basis that the legal burden of proof lay throughout on the Secretary of State.

The second ground of appeal: erroneous focus on whether the marriage was "genuine and subsisting"

40. Mr Southey submitted that the tribunal misdirected itself by focusing on the question whether the marriage was "genuine and subsisting". That terminology can be seen to run through the determination: it appears, for example, in the last sentence of paragraph 3 ("I was satisfied that it was for the Appellant to show … that the marriage was genuine and subsisting"), in the first sentence of paragraph 26 ("I am not satisfied on the evidence … that they are now or ever have been in a subsisting relationship of husband and wife") and in paragraph 29 ("I am not satisfied that the Appellant is in a subsisting relationship with her husband …"). But it relates to the different issue that arises in applications by non-EEA spouses for leave to remain under the Immigration Rules. It has no place in relation to the issue of marriage of convenience on an application under regulation 17 of the EEA Regulations, where the relevant question is whether the marriage was "concluded … 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" (see paragraph 10 above).
41. I accept that the tribunal's language was loose. It may be useful to contrast a marriage of convenience with a "genuine" marriage (indeed, Underhill LJ treated them as antonyms at paragraph 6 of his judgment in Agho), but the focus in relation to a marriage of convenience should be on the intention of the parties at the time the marriage was entered into, whereas the question whether a marriage is "subsisting" looks to whether the marital relationship is a continuing one. I am satisfied, however, that the tribunal understood that the ultimate question was whether it was a marriage of convenience, not whether the marriage was subsisting, and that its findings provided a proper basis for the conclusion it reached that the marriage was one of convenience. The tribunal was correct to look at the evidence concerning the relationship between the appellant and her husband after the marriage itself (both before, during and after the husband's period of imprisonment), since that was capable of casting light on the intention of the parties at the time of the marriage. The tribunal's finding that "it is a marriage of convenience and always has been" (paragraph 26) covered the position at the time of the marriage. The wording suggests that the tribunal had in mind the possibility that a marriage of convenience might turn into a genuine marriage in the course of time, but the finding that it had always been a marriage of convenience makes it unnecessary to consider that potentially interesting issue in the present case.

The third ground of appeal: the evidence of two witnesses

42. The third ground complains about the way the tribunal dealt with the evidence of Ms Cabral and Ms Arruda, the two independent witnesses who gave oral evidence. Their evidence is summarised at paragraphs 20 and 21 of the tribunal's determination. The written grounds of appeal contend that the tribunal erred in law by failing to make any credibility findings in relation to their evidence, but the matter was expressed more broadly by Mr Southey in his oral submissions. He submitted that if the tribunal doubted the witnesses' credibility, it had to give some reasons for doing so; but if the tribunal accepted their credibility, it had to explain why it rejected their evidence that the appellant and her husband had a genuine loving relationship as husband and wife. He contrasted the tribunal's treatment of those witnesses with its approach to the statements of witnesses who did not attend the hearing, in respect of whom the tribunal stated that "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" (paragraph 28).
43. I do not accept that there was any deficiency in the tribunal's treatment of the evidence of Ms Cabral and Ms Arruda. So far as can be discerned from their written statements (we do not know what emerged in cross-examination), the tribunal gave an accurate and sufficient summary of their evidence, albeit it omitted reference to Ms Cabral's statement of belief that the appellant and husband had a genuine relationship. Its reference to minor inconsistencies between their evidence and that of the appellant did not prevent it accepting the main substance of their evidence of fact, an acceptance which is clear from the findings at paragraph 22 of the determination that the couple had been living under the same roof since the husband left prison and that he attended church with the appellant and her friends. But, for the reasons given at paragraph 22 (which are in line with the reasons given in paragraph 28 when dealing with the statements of witnesses who did not attend the hearing), the tribunal did not accept that the couple lived as husband and wife. That was based on adverse credibility findings in relation to the appellant and her husband but did not involve any rejection of the credibility of Ms Cabral or Ms Arruda. Those two witnesses may have believed there to be a genuine relationship of husband and wife, but the tribunal gave adequate reasons why it did not consider such a relationship to exist. There was no error of law in any of this.

The fourth ground of appeal: mistaken basis of adverse credibility findings against the appellant and her husband

44. The fourth ground is a very narrow point, to the effect that the reasoning of the tribunal in paragraph 23 of its determination is based on a mistake of fact and a misunderstanding of the evidence. The tribunal refers in that paragraph to the appellant's lie in her witness statement as to attendance by her husband's parents at the wedding, and states that "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." It is submitted that the lie is explained in the summary of the evidence at paragraph 14 of the determination. I do not propose to go into detail, because I see no substance to the point itself and in any event I do not accept that this ground discloses any arguable error of law, let alone an arguably material error. Even if the tribunal was wrong about the lack of a satisfactory explanation of this particular lie, that does not affect the overall adequacy of the tribunal's reasoning or the rationality of the conclusion reached by the tribunal on the evidence before it.

Conclusion

45. For the reasons given, I would dismiss the appeal.

Lord Justice Floyd :

46. I agree.

Lord Justice Moore-Bick :

47. I also agree.