Supreme Court in Edinburgh: Who bears the burden of proof in sham marriage cases?

Sadovska and Another (Appellants) v Secretary of State for the Home Department (Respondent)

On appeal from the Court of Session (Scotland)

The issue in this appeal is whether the Inner House erred in failing to hold that, in cases where the respondent intervenes to stop an alleged marriage of convenience and makes a removal order on that basis, the evidential burden of proof rests with the respondent and requires to be discharged on the balance of probabilities.

The first appellant is an EU national and the second appellant is a national of Pakistan. Their wedding ceremony was interrupted by the respondent’s officers at the Registry Office.

The officers told the appellants that they were being investigated in relation to whether they had committed any offences under the Immigration Acts. The appellants were interviewed separately.

Following the interviews, the respondent ordered the removal of the appellants from the United Kingdom on the ground that they had attempted to enter a marriage of convenience. The respondent’s order withdrew the right of the first appellant to remain in the United Kingdom as a European Union national under Article 35 of the Directive 2004/38/EC and rejected the second appellant’s claim for leave to remain based on his right to a family life.

The First-tier Tribunal stated that the burden of proof in immigration appeals is on the appellant and the standard of proof is the balance of probabilities. It found that the appellants had attempted to enter into a marriage of convenience for the purpose of enabling the second appellant to make an application to remain in the United Kingdom. Therefore, the respondent was justified in revoking the residence card of the first appellant and ordering her removal. The second appellant did not have a claim on the basis of protection of family life in those circumstances. The Upper Tribunal refused the appellants’ appeal.

The First Division of the Inner House held that the First-tier Tribunal did not err in relation to the burden or standard of proof. The First-tier Tribunal was entitled to reach a conclusion of fact as to the relationship between the appellants, having regard to the evidence put forward and attaching such weight to the evidence as it deemed appropriate.