Scottish Court of Session Decisions

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 51

XA137/15 and XA138/15

Lord President

Lord Menzies

Lady Clark of Calton

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD PRESIDENT

in the Appeals

by

VIOLETA SADOVSKA and SALEEM MALIK

Appellants;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

Act: Bovey QC, Byrne; Drummond Miller LLP

Alt: Webster; Office of the Advocate General

17 June 2016

Introduction

[1]        These are appeals from a decision of the Upper Tribunal (Immigration and Asylum Chamber), dated 6 February 2015, refusing appeals from a First Tier Tribunal decision, dated 19 August 2014, which upheld the respondent’s decision, dated 17 April 2014, ordering the removal of both appellants from the United Kingdom on the ground that they had attempted to enter into a marriage of convenience.  This involved withdrawal of the right of the first appellant to remain in the UK as a European Union national under Article 35 of the Directive 2004/38/EC and a rejection of the second appellant’s claim for leave to remain based on his right to a family life.  The appellants’ fundamental contention was that they had been in a genuine relationship since October 2012.  Their intended marriage had not been one of convenience.  The Tribunals, it is said, erred in a number of ways in determining otherwise.

The First Tier Tribunal
[2]        The FTT prefaced its decision by stating that the burden of proof in immigration appeals is on the appellant and the standard is balance of probabilities.  In human rights appeals, the appellant required to demonstrate an interference with a right, albeit that the respondent then required to show that it was justified. 

[3]        The FTT found in fact that the first appellant was aged 33 and a national of Lithuania.  She had entered the UK in 2007 and, in 2011, came to live in Edinburgh, where she works as a cleaner.  Her two sisters also lived in Edinburgh.  The first appellant remained in the UK in exercise of her right of free movement as an European Union national.  The second appellant was aged 30 and a national of Pakistan.  He had entered the UK on a Tier 4 student visa in May 2011.  He did not pursue his course of study.  He came to Scotland.  His visa required him to leave the UK in April 2013.  Since that date, he has been in the UK without leave to remain.

[4]        The FTT also found that the appellants had been together in the streets of Edinburgh at Hogmanay 2013.  The appellants had attended the first appellant’s sister’s wedding in December 2013.  The second appellant had booked a double room in a London hotel for two adults from 18 to 22 January 2014.  The appellants were both in London at the same time in January 2014.  On 25 March 2014, the appellants published a notice of their intention to marry on 17 April 2014 at Leith Registry Office.  Notwithstanding this, on 28 March 2014, the appellants had signed a statement in the following terms:

“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.”

The purpose of the document was unclear as at the hearing of the appeal.

[5]        On 6 April 2014, the appellants had signed a joint lease of a flat.  On 11 April 2014, the second appellant’s solicitor wrote to the respondent to advise that the appellants intended to marry on 17 April 2014, and that the second appellant was available to be interviewed before then.  On 16 April 2014, at about 5.00pm, the appellants purchased two wedding rings.

[6]        On 17 April 2014, the respondent’s officers interrupted the appellants’ planned ceremony at the Registry Office.  They interviewed the appellants separately.  Before each interview, the appellants were told that they were being investigated in relation to whether they had committed any offences under the Immigration Acts.  They were cautioned that:  “You are not obliged to say anything, but anything you do say will be recorded and may be used in evidence at a later stage”.  They were asked whether they understood the caution.   They said that they did.  They were asked if they were happy to be interviewed in English.  Both assented to that process and stated that they understood the officer.

[7]        Both appellants were able to provide some basic information about each other.  Both said that they had met in October 2012 at a named “disco”.   According to the first appellant, after that they became friends.   She did not provide any further information about the development of their relationship.  The second appellant, on the other hand, said that the first appellant had stayed with him on the night that they had met.  They had become boyfriend and girlfriend and had seen each other “every other day” since then. 

[8]        The first appellant was unable to say where the second appellant was from.  She could not name his parents or any of his brothers and sisters.  She stated that: her sisters had not attended the wedding because one had a baby and the other was working; her mother was not at the wedding because she was old (aged 59) and would have found it difficult to travel; she had not told her mother of the wedding; her mother had been at her sister’s wedding at Christmas; and she could give a name for one of the witnesses but not the other.  The second appellant said that: he had met the first appellant’s mother at her sister’s wedding; her mother had been told of the wedding, but had been unable to attend because she was in Lithuania; he did not know her mother’s name, although he was able to name her sisters; and he did not know why one of her sisters had not been at the wedding, before saying that she had been busy. 

[9]        None of the first appellant’s relatives, notably her mother and sisters, were at the wedding.  In her evidence to the FTT, she explained this by saying that it had been anticipated that the marriage would be stopped, as the second appellant was an over-stayer.  The ceremony was a dry run with the appellants “trying their luck”.  A bigger celebration would have been organised later.

[10]      The FTT noted the discrepancies in the appellants’ interviews concerning the absence of the first appellant’s relatives and other matters.  The judge commented upon the differences in the descriptions of their developing relationship.  In addition, the photographs which the appellants had produced to demonstrate a continuing relationship from October 2012 had covered only the period December to January 2014.  There was no reliable evidence of a romantic relationship prior to December 2013.  The letters of support from friends, which had also been produced, were in similar terms and none of the authors had come to give evidence.

[11]      The FTT held that the performance of the appellants at interview justified the respondent’s suspicion.  Neither appellant demonstrated a knowledge of each other, which was consistent with a lifelong commitment to marriage or an intense romantic relationship for over a year.  There was no evidence of any planning for the marriage.  The FTT held that the appellants were not in a relationship, and certainly not a durable one.  Since the first appellant was a party to a marriage of convenience, the respondent had been justified in revoking her residence card and ordering her removal.  There was no family life involving the second appellant to be protected and no argument was presented on the basis of a private life.

The Upper Tribunal
[12]      The appellants appealed to the UT on the ground that the FTT had based its decision on the interviews rather than the totality of the evidence as required by ECO, Nicosia v Papajorgji [2012] UKUT 38 (at para 39).  Rather than look at the evidence as a whole, the FTT had taken the perceived conflicts between the interviews as a starting point and elevated their significance above all the other evidence.  The FTT had not taken into account the first appellant’s view that she had been interviewed aggressively and without an interpreter.  The first appellant had maintained that her English had not been of a sufficiently high standard to enable her to be interviewed.  She had been scared by the hostility of the interview.  This had caused her to become “very lost”.  She had been “overwhelmed” and had “completely lost [her] confidence”.  Her ability to converse in English and her state of mind had been “clearly of significance to the evidential weight to be placed on the interview”.  

[13]      The second appellant also complained about the first appellant’s interview without an interpreter.  The FTT had failed to have regard to the evidence of cohabitation after the marriage date.  It had erred in looking sceptically at the solicitor’s letter concerning a potential interview.  This had not been part of a sham marriage plan, but an effort to set up a human rights claim.  The FTT had failed to give adequate reasons for rejecting the positive evidence of a relationship and had erred in law in not following the guidance in Papajorgji (supra).

[14]      The UT noted that the FTT had made no comment upon the conduct of the interviews.  However, there had been nothing to demonstrate any unfairness to either appellant at interview.  It was they who had offered to be interviewed.  They had not asked for interpreters.  They had agreed to being interviewed in English.  Despite their subsequent protestations, the appellants had not demonstrated how their positions at interview could have been improved.  Read fairly and as a whole, the FTT had considered the points both in favour of and against the appellants.  The analysis had to start somewhere.  There was no error of law and the appeal required to be refused.

Submissions

[15]      The first ground of appeal was that the UT had erred in law in rejecting a contention that the FTT had approached the burden of proof incorrectly.  The UT had erred in holding that the FTT had “complied with” the approach in ECO, Nicosia v Papajorgji [2012] UKUT 38.  The respondent had to produce evidence showing a reasonable suspicion (Papajorgji (supra)).  There was a presumption of genuineness which could only be rebutted by clear evidence usually involving the “triggers” set out in para 4.2 of the communication from the EU Commission to the Parliament (Com (2009) 313).  The FTT and the UT had erred in law in failing to have regard to these triggers.

[16]      The second ground was that the UT had erred in failing to hold that the respondent had not met the required standard of proof.  A high degree of proof was required in the European context to prove fraud.  The allegation must be convincingly established.  The decisions of the UT and the FTT bore “no resemblance to this approach”.  The burden had simply been put on the appellants.  The FTT had failed to look at the positive aspects of the appellants’ situation and the consistencies in their accounts.  The FTT’s criticisms of the photographs had been illegitimate as was the rejection of the letters of support.  There had been no need to call the authors of the letters to give evidence.

[17]      The third ground related to the fairness of the interviews.  In submissions, the manner in which this was put was that, having established that the FTT had erred in relation to burden and standard of proof, it could not be said that these misdirections had made no difference to the outcome.  There had been good evidence of the appellants having a genuine relationship.  The UT had failed to take into account the pressures upon the appellants at an interview, taking place instead of a wedding, without interpreters.  The state had created an unnecessary atmosphere of compulsion in which to obtain evidence unfairly.  This involved a breach of the common law, Article 6 of the European Convention and Article 47 of the EU Charter of Fundamental Rights (ZZ (France) v Home Secretary (No 2) [2014] QB 820).

[18]      The respondent maintained that, in considering whether the marriage was a sham, the FTT had taken into account a number of factors including the inconsistencies at interview.  There was evidence which suggested a possible intention to abuse the rights conferred by EU law, including inconsistencies about personal details (Papajorgji (supra) appending Com (2009) 313 (supra).  The UT had been correct, in following the guidance in Papajorgji, that the issue required to be resolved on a balance of probabilities in light of the totality of the information.  Once evidence was out, questions of onus of proof usually ceased (Sanderson v McManus 1997 SC (HL) 55, at 62).  Onus was only significant if the tribunal was unable to reach a definite conclusion (Thomas v Thomas 1947 SC (HL) 45 at 54).  There was only one standard of civil proof (Scottish Ministers v Stirton 2014 SC 218 at paras [117]-[119]).

[19]      The UT had considered fairness.  No argument had been presented to the UT that the evidence had been inadmissible and hence no point of law arose in that regard.  There was no Article 6 issue in relation to a decision to allow an alien to remain, as there had been no determination of the appellants’ civil rights (Maaouia v France (2001) 33 EHRR 42 at 40; Kochieva v Sweden (2013) 57 EHRR SE6 at para 41) even if the decision may have serious repercussions (Harrison v Secretary of State for the Home Department [2003] INLR 284, para 22-29).  Article 47 added nothing to the principles applicable at common law.  There had been no unfairness. The appellants had invited the interviews.  They had been cautioned.  They had said that they were happy to be interviewed in English and that they understood the officers.  The questioning had not been complicated and there was no lack of comprehension.  The first appellant had said that they were “trying their luck”, so there was no suggestion of surprise.

Decision

[20]      Although the appeal to this court complains of the First Tier Tribunal having misdirected itself on both onus and standard of proof, it is of note that these were not grounds raised with the Upper Tribunal.  There, the point being advanced was that the FTT had failed to abide by the guidance in ECO, Nicosia v Papajorgji [2012] UKUT 38 (para 39) to look at the totality of the information.  Papajorgji involved an application to enter the European Union on the basis of marriage to an EU national.  A genuine marriage certificate existed.  It is not surprising therefore that the UT held that this raised an evidential burden upon the state to prove its allegation that the marriage was a sham.  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, 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 light of the totality of the information”, accords with that dictum.

[21]      There is no error of law in stating a general proposition that, in immigration appeals, the legal burden is on the appellant.  The “evidential” onus may fluctuate thereafter depending upon the particular circumstances. In this case, for example, in the first appellant’s situation, proof of her nationality and consequent residency card would shift any burden onto the respondent to demonstrate that the proposed marriage, which put her residency right in jeopardy, was a sham.  Whether the same consideration applied to the second appellant is doubtful.  However, the FTT considered 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 is only one standard of proof; that being the balance of probabilities (Scottish Ministers v Stirton 2014 SC 218, LJC (Carloway) at paras [117]-[119]).

[22]      The FTT identified a number of factors which pointed to the marriage being a sham.  These included: the absence of the first appellant’s friends and relatives from the ceremony; the first appellant’s lack of knowledge of the second appellant’s home town or the names of his immediate family; the inconsistencies between the interviews; the timings of the notice of marriage and the joint statement that there were no plans to marry; the lack of wedding preparations; the failure of any of the appellants’ friends to go to the FTT in support of their letters; and the absence of real evidence demonstrating the existence of a relationship of the duration maintained by the appellants.  There were factors which might have been taken as pointing in the opposite direction, such as: the knowledge each appellant had of the other in relation to names, ages, occupations and hours of work; some consistency in their accounts of the encounter in the “disco” in December 2012; and the second appellant’s knowledge of the first appellant’s family.  The FTT appears to have taken all of these matters into account in reaching a conclusion of fact, which was its primary province to reach.  The absence of an express reference to the indicative factors mentioned in the Communication from the EU Commission to the Parliament and the Council (Com (2009) 313) is of no moment.  In so far as the factors were relevant, they were taken into account.

[23]      There is some force in the submission, which was made before the UT, that the FTT did not deal with the contentions concerning the interviews.  If the appellants did make submissions on the issue of the weight to be attached to the interviews (and the court has no reason to doubt that they did), it would have been helpful if the FTT had expressly recorded how it had dealt with them.  Nevertheless, as the UT held, there was little, if any, substance in the complaints raised.  The first appellant had been living in the United Kingdom for some 7 years.  She had been cautioned at the start of the interview.  She had agreed to be interviewed in English.  The questions were not of a technical nature.  If she had said anything as a result of any misunderstanding, confusion or undue pressure, she had the opportunity of explaining that before the FTT.  There appears to have been nothing material said at interview that did not accurately reflect the first appellant’s position.  Similar considerations apply to the second appellant’s interview.  Furthermore, the second appellant had subsequently been able to give evidence before the FTT in English.

[24]      It is a reasonable inference that the FTT placed no weight on the complaints.  That was an option open to it on the evidence.  Indeed, it was the only one open on the facts otherwise established.  In the absence of any substantive unfairness, it is not necessary to consider the application of either Article 6 of the European Convention or Article 47 of the Charter of Fundamental Rights.  It may be sufficient to record that neither Article, in this context, would appear to enhance the standards of fairness applicable at common law.  If the FTT had considered that the interviews had been unfairly conducted, either because of undue pressure applied by the interviewing officers or because of a lack of proper understanding of the questions or difficulty in answering because of language problems, it would have been open to it to assess that unfairness and to attach such weight to the interviews as it deemed appropriate.  That is, no doubt, what the FTT did in considering that what was said at interview demonstrated the absence of a relationship leading to a genuine marriage.

[25]      The appeals are accordingly refused.