UK Court of Appeal: Burden of Proof rests with Home Office

The Court of Appeal recently decided that where an applicant has had an application refused on the basis of  entering into a sham marriage with an EEA national then the burden of proof in demonstrating that assertion rests with the Home Office. This is no surprise and reaffirms the earlier case of Agho where the Court of Appeal similarly found that the burden of proving that an Applicant is in a sham marriage rests with the Home Office. 

Facts of Case

The more recent case of  Rosa v Secretary of State for the Home Department [2016] EWCA Civ 14 involved a Brazilian national who married a Portuguese national and began living in the UK in October 2008. The Portuguese national ‘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. The Brazilian national (Rosa) in this case gave evidence to the tribunal in support of the EEA national’s appeal’.

In April 2012 the Brazil national made an application for a residence card under the Immigration (European Economic Area) Regulations 2006 (“the EEA Regulations”) as an EEA national’s spouse. Her application was refused by the Home Office, on the ground that her marriage to the EEA national was a “marriage of convenience”.

EEA Regulations for Residence Card

The EEA legislation governing the issue of a residence card and burden of proof on the issue of marriage of convenience are as follows:

• The Home Office must issue a residence card to a person who is not an EEA national but is the family member of a qualified person or of an EEA national with a permanent right of residence where they provide
• (a) a valid passport; and
• (b) proof that the applicant is the family member of an EEA national.

The Regulation also make provisions for who is to be treated as a “family member” for these purposes in this case, the spouse of an EEA national provided that spouse’does not include … a party to a marriage of convenience.

Court of Appeal Decision

On the facts of the above mentioned case the fact that there was a legal error concerning the duty to discharge the legal burden, in this particular case the Court of Appeal reiterated (applying previous cases) that the burden to prove that a marriage is one of convenience lies with the Home Office. The Court also concluded that whether a marriage is one of convenience depends on the intentions of the parties at the date of the marriage, not on whether the relationship is later genuine and subsisting. The assessment 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 at whether the relationship is a continuing one.

Successful EEA Residence Card Applications & Appeals

The European Economic Area Regulations 2006 law permits family members of EEA nationals (including unmarried partners) to reside in the UK with their EEA national partners. In order to assess whether a relationship meets the provision of the Immigration Rules, the Home Office expects that Applicants demonstrate this with documentary evidence. Obtaining a Residence Card can be a difficult process involving referencing not only the EEA regulations but also supplementary guidance notes. Choosing the right law firm from the beginning can ensure the correct applications are made from the outset this will not only allow for an easy mind in preparing for an application, but will also mean that in the long run applicants will save time and money with a specialist law firm who follow the strict letter of the law and the Solicitors Regulations Guidelines. Many Applicants make the mistake of providing insufficient documentation and thus fail to evidence their recognised entitlement to a Residence Card.

Our team of experienced and professionally qualified solicitors and barristers (regulated by the Solicitor’s Regulation Authority) will be able to guide you through the Residence Card application and appeals process step by step and limit the possibility of failure by complying with the strict letter of the law. Please always call us for a telephone consultation even if you wish to consider other advisers.

Our Immigration Experts are able to give specialist legal information and advice in this area of law. To contact one of our Immigration Solicitors or Immigration Barristers please complete our legal case assessment form and we will get in touch or call us now on 02030110276.