VK (Marriage of Convenience) Kenya  UKIAT 00305
IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 16 March 2004
Date Determination notified: 24 November 2004
Mr J Perkins – Vice President
|Immigration Officer - Waterloo||RESPONDENT|
DETERMINATION AND REASONS
"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.
"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.
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