In a recent case, the Supreme Court has handed down its judgement in the case of Sadovska and another (Appellants) v Secretary of State for the Home Department (Respondent) (Scotland)  UKSC 54.
The Supreme Court has unanimously allowed this appeal and rules that the burden of proof of establishing a ‘marriage of convenience’ falls entirely on the Home Office.
The court has re-affirmed with the previous rulings of the Court of Appeal in the cases of Rosa v Secretary of State for the Home Department  EWCA Civ 14 and Agho v The Secretary of State for the Home Department  EWCA Civ 1198.
In this recent case, the appellants were Ms Sadovska a Lithuanian national and a Mr Malik who is a Pakistani national. Ms Sadovska has lived and worked in the UK since February 2007 and has acquired the right of Permanent Residence in the UK. Mr Malik was an overstayer.
Their wedding was scheduled to take place on 17 April 2014. Home Office Immigration officers have attended the Registrar’s Office on the day of the wedding to interview them. Which in his own right is distasteful and disrespectful from the Home Office side.
After the interviews have been finished the Home Office officers detained them both. Mr Malik was issued with a notice that, as an overstayer, he was a person liable to removal. Furthermore, Ms Sadovska received a notice as well that she was liable to removal, as it was justified on the grounds of abuse of rights, specially that she had “attempted to enter into a marriage of convenience with Mr Malik.” This part is covered by Regulation 21B(2) of the EEA Regulations provided that:
“The Secretary of State may take an EEA decision of the grounds 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.”
Ms Sadovska and Mr Malik appealed against their notices. However, the First-tier Tribunal, Upper Tribunal and the First Division of the Inner House of the Court of Session all dismissed this appeal.
A unanimous decision by the Supreme Court allowed the appeal on the basis that the First-Tier Tribunal has wrongly applied the burden of proof of establishing a marriage of convenience (otherwise known as a sham marriage).
Lady Hale has confirmed that proving whether a marriage is real or not rests solely on the Home Office and not the applicants.
Moreover, in the case of Ms Sadovska, the First-Tier Tribunal failed not only to prove the marriage was a sham, but also to assess whether the removal of an EEA national would be a proportionate response to the abuse of right, as required by Regulation 21B(2) of the EEA Regulations.