Home Secretary must establish marriage of convenience

Senior solicitor Michelle Lewis reports on at interesting twist on an old movie script. A recent Supreme Court ruling found that, for a removal order to be issued against an EU individual on the ground that she had abused her right of residence in the UK by attempting to enter into a marriage of convenience with a non-EU national, it was for the Home Secretary to establish that it would have been a marriage of convenience rather than for the individual to establish that the relationship was a genuine and lasting one.

In brief, the details of the case before the court were that a citizen of Pakistan came to the UK lawfully with a Tier 4 student visa in 2011. His visa expired in 2013 and he had been in the UK unlawfully ever since. He said that he had been in a relationship with a Lithuanian, who was lawfully in the UK, since 2013. In 2014, when they attended a register office to marry, immigration officers interviewed and then detained them and they had thus been unable to marry.

The approach taken by the judge at the first hearing, in dismissing their appeals against their removal notices, had been to require them to prove that it was not a marriage of convenience, rather than to require the Home Office to prove that it was. The Supreme Court decided that had not been the correct approach.

The law governing the two removal notices differed significantly as between the two individuals. The Lithuanian had a right of permanent residence in the UK as an EU citizen, her freedom of movement could only be restricted on grounds of public policy, public security or public health, none of which applied, or if it was established that she had attempted to enter into a marriage of convenience. However, one of the most basic rules of litigation was that “he who asserts it has to prove it”. So, it was not for the accused to establish that the relationship was a genuine and lasting one. It was for the Home Secretary to establish that it was indeed a marriage of convenience.

The position of the Pakistani ex-student was different, for he had no established rights, either in EU law or in non-EU immigration law. He would be required under the rules to show that he had a “durable relationship” with his fiancé. If he did produce evidence of a durable relationship, it would again be for the Home Secretary to show that it was not, or that there were other good reasons to deny him entry.

The Supreme Court found that the lower court had approached the issue incorrectly by demanding that the couple establish the validity of their relationship and their appeals against the removal orders where granted; albeit that they were sent back to the lower court so that the issue could be reconsidered in the correct way.

Michelle, comments “This ruling is a major clarification of the immigration rules surrounding marriage and puts to bed the myth of the “green card marriage”.

If you would like assistance in relation in any matrimonial matter, please call Michelle on 02392 210170 for further information.

Up to a third of user reviews on consumer websites are said to be fake. However, a landmark fraud ruling in the European courts has signalled a fight back to regulate the honesty of reviews.

More Info

Christopher Matthews comments on the collapse of Universal Wealth Management

More Info

Wills and Planning for the future

Research just published underlines how ill-prepared most people are in terms of their end of life planning.

More Info

Around-the-clock care set to double by 2035, according to study

According to a recent study published by The Lancet, it is estimated that in the next twenty years, the number of over-85s requiring around-the-clock care is set to double. 

More Info

Reviews

We’re proud to be associated with

  • The Law Society, Conveyancing Quality Accredited logo
  • The Law Society, Children Law Accredited logo
  • The Law Society, Criminal Litigation Accredited logo
  • The Law Society, Family Law Accredited logo
  • The Law Society, Family Law Advanced Accredited logo
  • The Law Society, Lexcel Accredited logo
  • Solicitors For The Elderly Accredited logo
  • Society of Trust and Estate Practitioners logo
  • Dementia Friends logo
  • Resolution logo