IS (marriages of convenience) Serbia  UKAIT 00031
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 18 December 2007
Date Determination notified: 11 April 2008
Senior Immigration Judge Clements
|ENTRY CLEARANCE OFFICER, SKOPJE||RESPONDENT|
DETERMINATION AND REASONS
(1) The burden of proving that a marriage is not a "marriage of convenience" for the purposes of the EEA Regulations rests on the appellant: but he is not required to discharge it in the absence of evidence of matters supporting a suspicion that the marriage is one of convenience (i.e. there is an evidential burden on the Respondent). See also AG  UKAIT 00075. (2) An EEA family permit is not "Entry Clearance" and so is not caught by s 85(5).
"—(1) In these Regulations—
"spouse" does not include a party to a marriage of convenience".
The respondent's refusal, and the Immigration Judge's dismissal of the appeal, are both based on a conclusion that the marriage between the appellant and the sponsor is a marriage of convenience.
"43. Before the Adjudicator it was common ground that the Respondent had the burden of proving that the Appellant's marriage was a 'sham'. The position before us was the same. For the purposes of this determination we accept it, but it appears to us that that position (as to both burden and standard) might properly be reconsidered in some other case. So far as concerns burden, the burden of proof is, as a matter of the general law, usually on the party who asserts. We should, if we were required to make a decision on the matter, have been inclined rather to say that it is the Appellant who asserts that he is a spouse who has a right of residence than that he merely asserts that he is a spouse, leaving the Respondent to deny that he has a right of residence. We are fortified in that view by the provisions of Rule 31 of the 1984 Rules (which applied to this appeal before the Adjudicator). So far as concerns standard, a high standard is appropriate in cases where misconduct is alleged: but, as at present advised, we are not persuaded that there is anything inherently wrong in marrying for convenience and taking any advantages that flow from the relationship - provided, of course, that no deception is involved.".
In VK  UKIAT 00305, the Tribunal said this:
"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 in Chang … 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. [The Tribunal] 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."
"Burden of proof
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 had 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."
"Abuse of rights
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."
Preamble 28 is as follows:
"To guard against abuse of rights or fraud, notably marriages of convenience or any other form of relationships contracted for the sole purpose of enjoying the right of free movement and residence, Member States should have the possibility to adopt the necessary measures."
Noting that marriages of convenience constitute a means of circumventing the rules on entry and residence of third-country nationals,
Whereas this resolution is without prejudice to Community law,
3. Where there are factors which support suspicions for believing that the marriage is one of convenience, Member States shall issue a residence permit or an authority to reside to the third-country national on the basis of the marriage only after the authorities competent under national law have checked that the marriage is not one of convenience, and that the other conditions relating to entry and residence have been fulfilled. Such checking may involve a separate interview with each of the two spouses.
4. Should the authorities competent under national law find the marriage to be one of convenience, the residence permit or authority to reside granted on the basis of the third-country national's marriage shall as a general rule be withdrawn, revoked or not renewed."
"Of course a Resolution … cannot override any legislative provision: indeed this one is specifically subject to Community law. We are, however, entirely unable to accept [the appellant's representative's] submission that it 'has nothing to do with European law'. It is a statement by one of the legislative bodies, and as such is entitled to respect. It relates to a subject covered by Council Directives, which are themselves not entirely clear. In addition, it would be surprising if (as [the appellant's representative] essentially has to claim) the Council was so ignorant of its own legislation that it was capable of passing a Resolution the whole contents of which were contrary to Community law. We decline to accept that thesis."
"I am not satisfied, on the balance of probabilities that you have not entered into a bogus and sham marriage of convenience for immigration purposes merely to facilitate your re-entry to the UK.
You claimed that you initially went to the UK in 1998 illegally in the back of a lorry then sought to remain permanently in a category outside of the Immigration Rules. This application was refused and you claim you returned to Kosovo voluntarily in December 2005. You were unable to give me satisfactory answers to questions concerning your wife. These were very basic questions which if your marriage was genuine and not a bogus one entered into solely for Immigration purposes I would have expected you to know. In addition at your interview you gave details of where and when you lived with your wife in the UK. These details did not tally with some of the documentation that you submitted with your application. If your marriage was not a bogus one which had not been entered into solely for immigration purposes to facilitate your re-entry to the UK then I would not have expected you to give such answers."
The respondent's reasons for refusal conclude with the indication that he has given consideration to Article 8 of the European Convention on Human Rights.
"Bogus marriages and marriages of convenience
5.1 Bogus marriages are invalid or entirely fictitious and may involve forgery or misuse of documents relating to another person. It should be recognised that a marriage which involves impersonation may still be a valid marriage, and that it is the impersonator who is legally married and not the identity which he or she has used.
5.2 Marriages of convenience are contracted for the specific purpose of evading Immigration control or gaining an easier route to citizenship."
"Having considered all the evidence in the round including specifically the whole of the interview (and particularly those questions referred to by the representatives), I conclude that the appellant has not satisfied me that this is a genuine marriage. I have considered all the factors which tended to show the relationship was genuine against all those which indicated otherwise. I conclude that it was a marriage that has been entered in to circumvent immigration control. There is no documentary evidence of the couple ever having lived together. The explanation that is provided for lack of such documentation relates only to documentation from the Home Office not from elsewhere. The appellant's sister could have provided evidence going to the nature and genuiness of the relationship. She did not give evidence despite there being an indication that such evidence would be given in the notice of appeal. No explanation for this lack of evidence was forthcoming. The sponsor and the appellant's evidence was contradictory on important issues, the explanation that there were interpreter problems at the interview being raised for the first time at the hearing by the sponsor, with no explanation for why this was not raised earlier.
I do not find the appellant's, or the sponsor's, evidence relating to the nature of the relationship to be credible. For the reasons given above, the Appellant has failed to satisfy me that the immigration decision made was wrong on the basis of any of the grounds set out in section 84 of the 2002 Act or under the EEA Regulations. I therefore dismiss his appeal entirely."
C M G OCKELTON