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Hastie Stable’s Mungo Bovey successfully represents appellants before the Supreme Court

Sadovska and another (Appellants) v Secretary of State for the Home Department (Respondent) (Scotland) [2017] UKSC 54

On appeal from [2016] CSIH 51

An EU citizen with a permanent right of residence in a host member state may have that right removed ‘in the case of abuse of rights or fraud, such as marriages of convenience’. The issue in this appeal is which party bears the burden of proof of establishing that a proposed marriage is one of convenience.

Ms Sadovska is a citizen of Lithuania. She moved to the United Kingdom in 2007 and has lived and worked here lawfully since, acquiring a right of permanent residence as an EU citizen pursuant to Directive 2004/38/EC (‘the Directive’). Mr Malik is a citizen of Pakistan who entered the UK with a student visa in May 2011 and has remained here unlawfully after his visa’s expiry in April 2013, in breach of section 10(1)(a) Immigration and Asylum Act 1999. Ms Sadovska and Mr Malik (‘the appellants’) maintain that they have been in a relationship with each other since February 2013, and decided to marry in January 2014.

On 11 April 2014, the appellants’ solicitors notified the Home Office in Glasgow that they intended to marry on 17 April 2014 at Leith Registry Office and invited officials to interview them before the wedding. Immigration officers arrived at the Registrar’s Office, interviewed the appellants separately, and then detained them before they were able to marry. Both were then served with notice that they were persons liable to removal from the UK: Mr Malik by having stayed after the expiry of his visa and Ms Sadovska by giving the Secretary of State reasonable grounds to suspect the abuse of her EU right of residence by attempting to enter into a marriage of convenience, contrary to regulation 19(3)(c) Immigration (European Economic Area) Regulations 2006.

The appellants appealed to the First-tier Tribunal. The judge held that the burden of proof was on the appellants to establish that their proposed marriage was not a marriage of convenience, and that they had failed to do this, having regard to the inconsistencies in their accounts at interview. The appellants appealed unsuccessfully to the Upper Tribunal and to the First Division of the Inner House, arguing that the tribunal had adopted the wrong approach to the burden of proof, and that the Secretary of State had failed to prove that the appellants were guilty of fraud, when the totality of the evidence relating to their relationship and the circumstances in which the interviews had taken place was taken into account.

JUDGMENT

The Supreme Court unanimously allowed the appeal and remits the case for a full re-hearing by the First-tier Tribunal