“Marriages of convenience are, for immigration purposes, synonymous with sham marriages”, so states Home office policy guidance (Marriage Investigations).

 

“Throughout this guidance, the generic term of ‘sham marriage’ has been used but where appropriate it also covers sham civil partnerships and marriages of convenience”, as per further policy guidance(Criminal investigation: sham marriage).

 

“Sham marriages typically occur when a non-European Economic Area (non-EEA) national marries someone as a means of attempting to gain long term residency and the right to work and claim benefits. An individual sham marriage is often part of a wider organised crime group (OCG) which may consist of multiple sham marriages and other criminal activity including money laundering and identity fraud”, clarifies more guidance (Criminal investigation: sham marriage Guidance).

 

When a non – EEA party obtains rights and entitlements given under EU law, this can ultimately lead to them being issued an EEA residence card for an initial period of 5 years and could eventually lead to permanent residence and British citizenship. When a foreign national marries a British national and subsequently applies for leave to remain in the UK, they too may be able to obtain indefinite leave to remain and following that British citizenship. This much accounts for why the Home Office have inbuilt mechanisms via enacted legislation and polices, intended to ensure as much as possible that:

 

• Entering into a sham marriage does not entitle migrants any right to remain in the UK.

• A person who is a party to a marriage or civil partnership of convenience is excluded from the definition of ‘spouse’ or ‘civil partner’ and therefore not entitled to a reside in the UK under EU law.

 

(1)EEA CONTEXT: RIGHTS OF NON- EEA FAMILY MEMBERS

 

Who is a Direct family member?

 

Family members who come under regulation 7(1)(a), (b) and (c) of the Immigration (European Economic Area) Regulations 2016 (the 2016 regulations) are often called ‘direct’ family members.

 

The following can be considered as direct family members:

 

• spouse or civil partner

• direct descendants of the EEA national or their spouse or civil partner who are: -dependants of the EEA national or their spouse or civil partner;-under the age of 21

• dependent direct relatives in the ascending line of the EEA national or their spouse or civil partner

 

Where the EEA national sponsor is a student and has resided in the UK for more than 3 months, a family member will only have a right to reside if they are either:

 

• the dependent child of the EEA national or the EEA national’s spouse or civil partner

• a qualified person in their own right

 

Direct family members have an automatic right of residence in the UK for as long as they remain the family member of that EEA national and that person is either:

 

• entitled to reside in the UK for an initial period of 3 months

• a qualified person

• has a right of permanent residence

 

Article 23 of Directive 2004/38/EC (the Free Movement Directive) allows the family members of EEA nationals who have the right of residence in the UK to work or become self employed.

 

If they have lived in the UK lawfully for a continuous period of 5 years, direct family members of an EEA national sponsor are allowed to live in the UK on a permanent basis. They must meet all the conditions of regulation 15(1)(a) or (b) of the Immigration (European Economic Area) Regulations 2016.

 

In certain circumstances, direct family members of an EEA national are not required to complete 5 years continuous residence and can get permanent residence before this. If the EEA national is a:

 

• worker or self-employed person who has ceased activity (in line with regulation 5)

• worker or self-employed person who has died: -the family member must have resided with the worker or self-employed person continuously in the UK for 2 years immediately before their death; -the death was as a result of an accident at work or an occupational disease

 

Who is an Extended  family member?

 

Regulation 8 defines an extended family member as a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who is either:

 

• a relative of an EEA national who is residing in a country other than the UK and is dependent on the EEA national

• is a member of their household and either:

  • is accompanying the EEA national to the UK or wishes to join them

  • has joined them in the UK and continues to be dependent on them or to be a member of their household

• a relative of an EEA national who strictly requires the personal care of the EEA national due to serious health ground

• a relative of an EEA national who would meet the requirements of the Immigration Rules for indefinite leave to remain (other than those relating to entry clearance) as a dependent relative of an EEA national as if the EEA national was a person present and settled in the UK

• the partner (other than a civil partner) of an EEA national who can prove they are in a durable relationship with the EEA national.

 

The 2016 regulations now make it clear that durable partners do not include parties to durable partnerships of convenience as defined in regulation 2. Home Office policy guidance state that a durable relationship is an unmarried partnership which has normally subsisted (continued in existence) for two years or more. Durable partners cannot keep a right of residence under regulation 10 on the basis that the relationship has broken down, whether this is due to domestic violence or otherwise. This is because regulation 10(5) only makes provisions for a family member to retain a right on termination of a marriage or civil partnership. As a durable partner is not in either a marriage or a civil partnership, regulation 10 does not apply. This reflects article 13 of Directive 2004/38/EC.

 

There is no limit on the distance of the relationship between the EEA national and the extended family member as long as they can provide valid proof of the relationship between them.

 

The term ‘relative’ includes:

 

• brothers

• sisters

• aunts

• uncles

• cousins

• nieces

• nephews

 

This list is not complete as the Home Office can  include those related by marriage and further generations of the above relatives such as great-aunts, great-nephews and second cousins.

 

Extended family members do not have automatic rights to enter and reside in the UK. Under regulation 7(3) of the 2016 regulations, an extended family member has the same rights as a direct family member. They must continue to satisfy the conditions of regulation 8 and have been issued with one of the following documents which remains in force:

 

• an EEA family permit

• a registration certificate

• a residence card

• a permanent residence card

• a document certifying permanent residence

 

From 1 February 2017 the rights of extended family members only applies to relatives of the EEA national and not to relatives of the EEA national’s spouse or civil partner. This means that an extended family member can no longer rely on their relationship to the EEA national’s spouse or civil partner in order to meet the requirements of regulation 8. Instead, they must show that they are related to the EEA national.

 

In line with regulation 15 of the 2016 regulations, an extended family member of an EEA national sponsor is allowed to live in the UK on a permanent basis if they have:

 

• lived in the UK for a continuous period of 5 years (unless they fall within regulation 15(d) or 15(e))

• lived in line with regulation 8 (extended family member) during that period.

 

Retention of rights of residence by certain family members:

The 2016 regulations also provide for certain family members of EEA nationals to keep their right of residence in the UK under regulation 10 when:

• the EEA national, either:-dies – regulation 10(2);-leaves the UK – regulation 10(3);-divorces their spouse or dissolves their civil partnership – regulation 10(5)

• the family member is the parent of a child who retains the right of residence – regulation 10(4)

 

The family member will retain the right to reside in these circumstances if they can satisfy the relevant conditions of regulation 10.

 

The Free Movement of Persons Directive 2004/38/EC (the parent Directive) states at paragraph 15 of the introduction that family members who have a retained right of residence do so ‘exclusively on a personal basis’. This means that they cannot be the sponsor for another family member. For example, if a non-EEA national with a retained right of residence gets married to another non-EEA national, the new spouse will not have any rights under the regulations. The new spouse would only be able to enter or remain in the UK if they qualified under the Immigration Rules.

 

Regulation 15(1)(f) of the regulations states that someone will have a permanent right of residence in the UK if they:

 

• have lived in the UK in line with the 2016 regulations for a continuous period of 5 years

• have a retained right of residence at the end of the 5 year period.

 

The Home Office will  make sure that they:

 

• met the conditions of being the family member of an EEA national who is exercising free movement rights in the UK prior to retaining a right of residence

• met the conditions of regulation 10 at the time of their change in circumstances

• continued to meet the conditions of regulation 10(6) until the end of the 5 year period of residence

 

Where the applicant has already been issued a document confirming they have a retained right of residence, they would only need to show that they continue to meet the conditions in regulation 10(6). This means showing they are a worker, self-employed person or self-sufficient person and that they have resided in the UK for a continuous period of 5 years.

 

It is not necessary for the applicant to show that, following divorce, the EEA national has continued to be a qualified person.

 

(2)SHAM MARRIAGES, MARRIAGES OF CONVENIENCE AND THE HOME OFFICE’S APPROACH

 

What is a sham marriage?

 

Under section 24 of the Immigration and Asylum Act 1999, as amended by section 55 of the Immigration Act 2014, a sham marriage is one in which all of the following apply:

 

• one or both of the parties is not a British citizen, a European Economic Area (EEA) national or a Swiss national

• there is no genuine relationship between the parties to the marriage

• either, or both, of the parties enter into the marriage for the purpose of circumventing UK immigration controls, including under the Immigration Rules or the Immigration (EEA) Regulations.

 

The Free Movement Directive 2004/38/EC, uses the term ‘marriages of convenience’ rather than sham marriage.

What is a marriage of convenience?

 

Under the regulations a spouse and civil partner are defined as a person who is not a party to a marriage or civil partnership of convenience.

 

The EEA Regulations 2016 define a marriage or civil partnership of convenience as a marriage or civil partnership entered into for the purpose of using these regulations, or any other right conferred by the European Union (EU) Treaties, as a means to circumvent:

 

• Immigration Rules applying to non-EEA nationals (such as any applicable requirement under the Immigration Act 1971 to have leave to enter or remain in the UK)

• any other criteria that the party to the marriage or civil partnership of convenience would otherwise have to meet in order to enjoy a right to reside under these regulations or the EU Treaties.

A durable partnership of convenience, as defined by the EEA Regulations 2016, includes a durable partnership entered into for the purpose of using these regulations, or any other right conferred by the EU Treaties, as a means to circumvent:

 

• Immigration Rules applying to non-EEA nationals (such as any applicable requirement under the Immigration Act 1971 to have leave to enter or remain in the UK)

• any other criteria that the party to the durable partnership of convenience would otherwise have to meet in order to enjoy a right to reside under these regulations or the EU Treaties

 

Recital 28 of Directive 2004/38/EC (the Free Movement Directive) defines a marriage of convenience as a relationship contracted for the sole purpose of enjoying the right of free movement and residence.

 

Where it is suspected a marriage or civil partnership is one of convenience, it is open to the Secretary of State to investigate individual cases.

 

This may include:

 

• asking the applicant and EEA sponsor for further information

• inviting the applicant and EEA sponsor for interview

• arranging a home visit by the Immigration Compliance and Enforcement (ICE) team

 

If a Home Office caseworker concludes that a marriage, civil partnership or durable partnership is one of convenience, they  must refer the EEA national to the relevant Immigration, Compliance and Enforcement team to consider whether there are grounds of public policy justifying deportation.

 

An applicant must show they are the family member of an EEA national. This would usually come from a valid marriage certificate. If a Home Office caseworker suspects the marriage or civil partnership is one of convenience, it is for the Secretary of State to prove this.

 

The national courts must verify the existence of abuse in individual cases if there is an appeal.

 

Any evidence must meet civil law standard, which is the balance of probabilities. The Home Office caseworker  must consider the balance of probabilities, and after looking at all the evidence decide if it is more likely than not the marriage or civil partnership is one of convenience.

 

Refusal of applications:

 

Where there are reasonable grounds to suspect a person with an EEA right has entered or attempted to enter a marriage, civil partnership or durable partnership of convenience, it may be appropriate to make a decision to refuse admission, refuse or revoke residence or remove.

 

The Home Office Caseworker must refuse the application if there has been a criminal investigation into the marriage or civil partnership that resulted in a conviction for any of the parties involved. Because of this compelling evidence the marriage or civil partnership can be considered invalid.

 

Relevant factors:

 

Having regard to Home office policy guidance, the relevant  factors are grounds for doubting the reasons for entering into a marriage or civil partnership and give  the Home Office caseworker  cause to make further investigations.  However without further evidence, they are not, in themselves, proof the marriage or civil partnership is one of convenience.

 

Even if the factors are present,   the Home Office acknowledge that later enquiries may show the marriage to be genuine.

 

If none of the factors exist then the Caseworker  must accept the marriage or civil partnership is not one of convenience and the direct family member is related to the EEA national sponsor as claimed.

 

The Home Office also acknowledge that some evidence may make it difficult to prove the marriage or civil partnership is one of convenience. Home Office caseworkers are required  to refer any cases to  their senior caseworker if any of the following factors exist:

 

• there is a child of the relationship – children from previous relationships must be excluded

• there appears, for any other reason, little prospect of sustaining a refusal at appeal when all the evidence on file is considered.

 

It is possible evidence may come to light, following a residence document being issued, which indicates the marriage or civil partnership was one of convenience and there was never an intention to live as husband and wife or as civil partners. The Home Office are aware that this evidence may not come to light until permanent residence is sought.

 

 

Marriage interviews:

 

UK Visas and Immigration (UKVI) are responsible for considering applications for leave to remain based on a marriage or a civil partnership and applications for EU residence documentation.

 

UKVI may invite the couple for an interview or alternatively commission a home visit. Cases are triaged against specific risk criteria and if the threshold is met, caseworkers may request a home visit by the relevant ICE team to establish whether the relationship is genuine and subsisting.

 

A Home Office caseworker may  arrange a marriage interview. If they  are unable to refer the case for a marriage interview, but consider that further information is needed in order to make a decision, they  should consider sending out a marriage questionnaire to the applicant to gather this information.

 

If the senior caseworker agrees to recommend a marriage interview, the case will be allocated to a caseworker on the Permanent Migration Interviewing team (PMINT) who is trained to conduct marriage interviews.

 

Marriage interviews are carried out by the PMINT. The purpose of the marriage interview is to gather the facts relating to the relationship between the applicants and compare their knowledge of each other.

 

In relation to home office interviews, the interview must be conducted objectively and impartially to allow the caseworker  to make a well reasoned and fair decision on the application. The caseworker is  required to ensure they  review the evidence before the interview. They  must not use a set list of questions in every marriage interview that they  carry out. They  must base their questions on the evidence available.

 

The caseworker must interview the EEA and non-EEA nationals separately and ask them both the same questions so  the caseworker  can compare their answers.

 

The caseworker must ask open questions wherever possible. These are questions that cannot be answered with a ‘yes’ or ‘no’ answer. Closed questions can be used to get a clear answer to a question.

 

Marriage interview home visits are only requested if the application cannot be resolved any other way. In these cases the caseworker  must ask Immigration Compliance and Enforcement (ICE) staff to carry out the home visit.

 

Once PMINT have finished all the interviews the case will be referred back to the initial Home Office caseworker along with the interview record for consideration.

 

Consideration following marriage interviews:

 

If the applicant attends the marriage interview, the Caseworker  must consider:

 

• the answers they gave during their interviews

• the evidence that led to doubts about the reasons for entering into the marriage or civil partnership

• any other documentary evidence they have provided

 

The Home Office Caseworker must assess where discrepancies occurred and consider if these outweigh the questions where their answers matched. This must not be based purely on the number of discrepancies.

 

The Caseworker must take into account the personal circumstances of the relationship. For example, it may be reasonable for someone not to be able to answer detailed questions about their spouse’s parents if they have never met them but it would be reasonable to expect them to be able to answer basic questions about them.

 

If the applicants attend the interview and a significant number of their answers were the same and they were able to show an in-depth knowledge of each other, this would outweigh evidence that led to doubts about the relationship. The Caseworker must accept the marriage or civil partnership is not one of convenience and that the direct family member is related to the EEA national sponsor as claimed.

 

Failure to attend the interview:

 

In line with regulation 22(4) of the 2016 EEA Regulations, the Secretary of State may draw any factual inferences about a person’s entitlement to a right to reside if, without good reason, a person fails to:

 

• provide the additional information requested

• attend an interview on at least two occasions, if so invited

 

This means that if there is other evidence to suggest that the person does not have a right to reside, then combined with the failure by that person to provide evidence to substantiate their claim, it can be considered on the balance of probabilities, that the person does not have, or ceased to have, a right to reside under the regulations.

 

Home Office Caseworkers must not decide that a person does not have, or ceased to have, a right to reside on the basis that the person failed to comply with this regulation alone. There must be additional grounds to suggest there is no right to reside; in practice these will usually be the grounds which prompted the request for additional information or attendance at interview.

 

As this is a substantive refusal there is a right of appeal if the relevant provisions of regulation 36 are met, and it is open to the applicant to appeal this decision.

 

In any case where the applicant’s appeal against the decision to refuse is unsuccessful, any further application made on the same grounds can be refused and certified under regulation 36(7).

 

Family permit entry clearance applications:

 

Home office guidance states that where the Entry Clearance Officer( ECO) suspect that a marriage or civil partnership is one of convenience, they can request that the applicant provide evidence about their relationship or attend an interview on this basis.

 

If the applicant fails to comply with a request to provide evidence or to attend a marriage interview on 2 separate occasions, Regulation 22(4)(b) allows   the ECO to draw ‘factual inferences’ about the applicant’s entitlement to reside as may appear appropriate in the circumstances. This means that taking the failure of the applicant to provide evidence or attend an interview, along with any other reasons to suspect that the marriage or civil partnership is one of convenience, can lead  the ECO  to decide that the applicant does not have a right to an EEA family permit.

 

If, following an interview, the ECO  decides that the marriage or civil partnership is one of convenience they  must refuse the application, clearly setting out in the refusal letter the reasons for concluding that the marriage or civil partnership is not genuine.

 

(3)WHERE DOES THE BURDEN OF PROOF LIE?

 

Current Home Office Policy Guidance Free Movement Rights: direct family members of European Economic Area (EEA) nationals, Version 5.0, 21 April 2017 states:

 

“Burden of proof

An applicant must show they are the family member of an EEA national. This would usually come from a valid marriage certificate. If you suspect the marriage or civil partnership is one of convenience, it is for the Secretary of State to prove this.

The national courts must verify the existence of abuse in individual cases if there is an appeal”.

 

Further Guidance, European Economic Area (EEA) case law and appeals v4.0 Published for Home Office staff on 27 March 2017, also currently clarifies: 

 

“Burden of proof: Papajorgji

“This page tells you how the Upper Tier tribunal (UT) case of Papajorgji affects applications for documents confirming a right of residence from the spouse or civil partner of a European Economic Area (EEA) national.

The Upper Tribunal case of Papajorgji (EEA spouse – marriage of convenience) Greece [2012] UKUT 00038(IAC), is a reported case which makes the following findings:

• there is no burden on a claimant to demonstrate that a marriage to an EEA national is not one of convenience at the outset of an application

• the case of IS (marriages of convenience) Serbia [2008] UKAIT 31 only establishes that there is an evidential burden on the claimant to address evidence justifying reasonable suspicion that the marriage is entered into for the main purpose of securing residence rights

• the standard of proof in such cases is to the civil standard (balance of probabilities)

This means that the initial burden is on the Secretary of State to demonstrate that a marriage is one of convenience. However, where there is reasonable suspicion that the marriage is not genuine the evidential burden shifts onto the applicant”.

 

In Sadovska & Anor v Secretary of State for the Home Department (Scotland) [2017] UKSC 54 (26 July 2017), the Supreme Court has recently stated:

 

“28.    It is clear from the provisions of the Directive quoted above that Ms Sadovska has a right of permanent residence in the United Kingdom. As an EU citizen, under article 27.1, her freedom of movement can only be restricted on grounds of public policy, public security or public health. As a permanent resident, under article 28 she could only be removed if those grounds are serious. It is not suggested that she can be removed under article 28 on any of those grounds. She can therefore only be removed, under article 35, if it is established that she has entered, or attempted to enter, into a marriage of convenience. Furthermore, although the Regulations permit the respondent to take steps on the basis of reasonable grounds to suspect that that is the case, Ms Sadovska is entitled to an appeal where the facts and circumstances must be fully investigated. That must mean, as held in Papajorgji, that the tribunal has to form its own view of the facts from the evidence presented. The respondent is seeking to take away established rights. One of the most basic rules of litigation is that he who asserts must prove. It was not for Ms Sadovska to establish that the relationship was a genuine and lasting one. It was for the respondent to establish that it was indeed a marriage of convenience.

29. For this purpose, “marriage of convenience” is a term of art. Although it is defined in the Directive and the 2009 Communication as a marriage the sole purpose of which is to gain rights of entry to and residence in the European Union, the 2014 Handbook suggests a more flexible approach, in which this must be the predominant purpose. It is not enough that the marriage may bring incidental immigration and other benefits if this is not its predominant purpose. Furthermore, except in cases of deceit by the non-EU national, this must be the purpose of them both. Clearly, a non-EU national may be guilty of abuse when the EU national is not, because she believes that it is a genuine relationship.

30.In the case of a person exercising EU law rights, the tribunal must also be satisfied that the removal would be a proportionate response to the abuse of rights established. So it would be one thing to find that the proposed marriage had been shown to be one of convenience, and therefore that it was right to prevent it, but quite another thing to find that expelling Ms Sadovska from the country where she had lived and worked for so long and had other family members living was a proportionate response to that.

31.The First-tier Tribunal did not analyse her rights in this way. It was quite simply incorrect to deploy the statement that “in immigration appeals the burden of proof is on the appellant”, correct though it is in the generality of non-EU cases, in her case. She had established rights and it was for the respondent to prove that the quite narrow grounds existed for taking them away. Nor did the determination address the issue of proportionality. It is impossible for this court to conclude that, had the matter been approached in the right way, the decision would inevitably have been the same.

35.Having reached the firm conclusion that the case must be remitted to the First-tier Tribunal to be heard afresh, because a wrong approach was taken to the requirements of EU law in this case, it is unnecessary to consider whether the appellants’ Convention rights add anything further to their claims. But for my part I would not accept their argument that, because their marriage was frustrated by the respondent’s actions, their case should be approached as if they were married, which would, of course, enhance Mr Malik’s claims. It must be permissible for the state to take steps to prevent sham marriages, although it is also incumbent on the state to show that the marriage would indeed be a sham”.

 

Other relevant caselaw:

 

Rosa v Secretary of State for the Home Department [2016] EWCA Civ 14 (15 January 2016), provides:

 

“10.Neither the EEA Regulations nor the provisions of the Directive contain a definition of “marriage of convenience”, but in R (Baiai) v Secretary of State for the Home Department (Nos. 1 and 2) [2008] UKHL 53, [2009] 1 AC 287, at paragraph 6, Lord Bingham said that it was difficult to improve on the definition (which the Secretary of State accepted in that case as apposite) in Article 1 of EC Council Resolution 97/C 382/01 of 4 December 1997 on measures to be adopted on the combating of marriages of convenience. That article defines a marriage of convenience as –

“a marriage concluded between a national of a Member State or a third-country national legally resident in a Member State and a third-country national, with the sole aim of circumventing the rules on entry and residence of third-country nationals and obtaining for the third-country national a residence permit or authority to reside in a Member State.”

18.The tribunal went on to state that the standard of proof is the civil standard of balance of probabilities, as explained by the House of Lords in Re B (Children) [2008] UKHL 35, [2009] 1 AC 11. That point is common ground before us, irrespective of where the burden of proof lies.

19.The reasoning in Papajorgji was endorsed recently by this court in Agho v Secretary of State for the Home Department [2015] EWCA Civ 1198 (“Agho”), though the issue did not fall for decision in that case and the point was not argued. In the course of a judgment with which Moore-Bick LJ and Vos LJ agreed, Underhill LJ said this about Papajorgji:

“13. … What it comes down to is that as a matter of principle a spouse establishes a prima facie case that he or she is a family member of an EEA national by providing the marriage certificate and the spouse’s passport; that the legal burden is on the Secretary of State to show that any marriage thus proved is a marriage of convenience; and that the burden is not discharged merely by showing ‘reasonable suspicion’. Of course in the usual way the evidential burden may shift to the applicant by proof of facts which justify the inference that the marriage is not genuine, and the facts giving rise to the inference may include a failure to answer a request for documentary proof of the genuineness of the marriage where grounds of suspicion have been raised. Although, as I say the point was not argued before us, that approach seems to me to be correct ….”

20.Non-binding guidance issued by the European Commission on the Directive (COM (2009) 313 Final, 2 June 2009) was referred to in paragraph 37 of the decision in Papajorgji and was appended to that decision. Paragraph 4.2 of the guidance considers marriages of convenience and, as stated in Papajorgji, is explicit with regard to the burden of proof:

“The burden of proof lies on the authorities of the Member States seeking to restrict rights under the Directive. The authorities must be able to build a convincing case while respecting all the material safeguards described in the previous section. On appeal, it is for the national courts to verify the existence of abuse in individual cases, evidence of which must be adduced in accordance with the rules of national law, provided that the effectiveness of Community law is not thereby undermined.”

24.In my judgment, the legal burden lies on the Secretary of State to prove that an otherwise valid marriage is a marriage of convenience so as to justify the refusal of an application for a residence card under the EEA Regulations. The reasoning to that effect in Papajorgji, as endorsed in Agho, is compelling.

25.I do not accept Mr Kellar’s submission that the burden of proof is a matter for national law alone. The EEA Regulations have to be interpreted and applied in line with the Directive which they implement. Although the Directive is silent as to burden of proof, the Commission’s guidance (paragraph 20 above) provides the key to the correct approach under it. Article 35 of the Directive provides that the rights otherwise conferred by the Directive may be refused, terminated or withdrawn in the case of abuse of rights or fraud, such as marriages of convenience. As a matter of general principle, one would expect that the burden of proving that an exception applies should lie on the authorities of the Member State seeking to restrict rights conferred by the Directive – in this case, that it should lie on the Secretary of State when seeking to rely on the existence of a marriage of convenience as a reason for refusing a residence card to which the applicant is otherwise entitled. That is the approach set out clearly in the Commission’s guidance, and there is no reason to doubt the correctness of the guidance on the point.

26.The guidance also shows the subsidiary role that national procedural rules have in this context. As a matter of EU law, the burden of proof lies on the authorities of the Member State seeking to restrict rights under the Directive, but it is for the national court to verify the existence of the abuse relied on, evidence of which must be adduced in accordance with the rules of national law. Emsland-Stärke GmbH is fully consistent with that approach and provides no support to Mr Kellar.

29.What I have set out above does little more than to expand upon paragraphs 33 to 37 of the decision in Papajorgji and to reject Mr Kellar’s criticisms of the reasoning in those paragraphs. It seems to me that paragraph 14 of the decision in IS Serbia, which prompted the tribunal in Papajorgji to say what it did about the legal burden of proof, was seriously confused. It stated that the burden of proving that a marriage is not one of convenience lies on the appellant, but it also stated that if there is no evidence that could support a conclusion that the marriage is one of convenience, the appellant does not have to deal with the issue. If, however, the legal burden lies on the appellant, the appellant has to adduce some evidence in order to discharge that burden: in the absence of any evidence either way, the appellant will fail. I do not think that that can have been the result intended by the tribunal. The result that I think the tribunal must have intended is achieved if the legal burden of proof lies on the Secretary of State throughout but the evidential burden can shift, as explained in Papajorgji. In my judgment, that is the correct analysis”.

 

Agho v The Secretary of State for the Home Department [2015] EWCA Civ 1198, provides:

 

“11.I should start by stating what the position is about the burden and standard of proof in a case where the Secretary of State or an Entry Clearance Officer (“ECO”) alleges that a marriage is a marriage of convenience. That question is carefully reviewed by the UT in the Papajorgji case to which I have already referred. In that case the ECO had refused an application for entry clearance on the basis of marriage to an EEA national on the ground that all that she had produced in support of the application was her marriage certificate and a copy of her husband’s Greek passport and that she had failed to produce “any documentary evidence of your marriage, such as photographs of your wedding or your life together or agreements in joint names such as a bank account or a tenancy agreement”. The UT’s determination falls into two parts.

12.At paras. 24-32 the UT holds that the ECO’s approach was wrong. As it put it at para. 27 of its determination

“… [T]here is no burden on the claimant in an application for a family permit to establish that she was not a party to a marriage of convenience unless the circumstances known to the decision-maker give reasonable ground for suspecting that this was the case. Absent such a basis for suspicion the application should be granted without more on production of the documents set out in article 10 of the Directive. Where there is such suspicion the matter requires further investigation and the claimant should be invited to respond to the basis of suspicion by producing evidential material to dispel it.”

It goes on to say that a failure to provide evidence in support of the genuineness of the marriage will only justify an adverse inference if such documents have been asked for. At para. 32 it emphasises that the evidential burden of showing that there are reasonable grounds for suspecting a marriage of convenience lies on the decision-maker.

13.Thus far, the UT was concerned with the approach to be followed by the ECO. At paras. 33-38 it goes on to discuss the burden of proof in proceedings in the Tribunals. It was concerned about a possible reading of an earlier decision – IS (Marriages of Convenience) Serbia [2008] UKAIT 31 – to the effect that  “once evidence of reasonable suspicion has been raised, there is a legal burden on the applicant to demonstrate that it is more probable than not the marriage is not one of convenience” (see para. 33). It expressed considerable reservations about such an approach, and although it said that the issue did not fall for decision it went on at paras. 34-37 to explain why it was strongly inclined to believe that it was wrong in principle. Mr Gullick took no issue with the reasoning in those paragraphs, but it is fair to say that the grounds of appeal did not turn on the issue of the burden of proof and it does not fall for decision before us any more than it did before the UT in Papajorgji. In those circumstances I will not attempt to summarise the passage in detail. What it comes down to is that as a matter of principle a spouse establishes a prima facie case that he or she is a family member of an EEA national by providing the marriage certificate and the spouse’s passport; that the legal burden is on the Secretary of State to show that any marriage thus proved is a marriage of convenience; and that that burden is not discharged merely by showing “reasonable suspicion”. Of course in the usual way the evidential burden may shift to the applicant by proof of facts which justify the inference that the marriage is not genuine, and the facts giving rise to the inference may include a failure to answer a request for documentary proof of the genuineness of the marriage where grounds for suspicion have been raised. Although, as I say, the point was not argued before us, that approach seems to me to be correct – as does the UT’s statement that the standard of proof must be the civil standard, as explained by the House of Lords in Re B (Children) [2008] UKHL 35, [2009] 1 AC 11.

14.The UT in Papajorgji concluded, at para. 39:

“In summary, our understanding is that, where the issue is raised in an appeal, the question for the judge will therefore be ‘in the light of the totality of the information before me, including the assessment of the claimant’s answers and any information provided, am I satisfied that it is more probable than not this is a marriage of convenience ?'”

Consistently with the prior discussion, that formulation clearly places the burden of proof on the Secretary of State (or ECO)”.

 

(4)MARRIAGE AND CIVIL PARTNERSHIP REFERRAL AND INVESTIGATION SCHEME

 

Types of marriage investigation:

 

Immigration Compliance and Enforcement (ICE) team officers may undertake enquiries into a suspect marriage because of:

 

• referrals for further investigation in connection with the ‘marriage and civil partnership referral and investigation scheme’

• encountering a person during an enforcement operation whose claimed relationship to a British citizen or European Economic Area (EEA) national is in doubt

• an allegation in relation to a person who has not previously been encountered or in relation to a person who is already known to be in breach of immigration law.

 

Marriage and civil partnership referral and investigation scheme:

 

Part 4 of the Immigration Act 2014 introduced a referral and investigation scheme for proposed marriages and civil partnerships across the UK involving a non-EEA national who could benefit in immigration terms.

 

Part 4 of the Immigration Act 2014 contains new powers to investigate suspected sham marriages and civil partnerships. This includes the:

 

• referral and investigation of proposed marriages and civil partnerships specifically about the: -referral of proposed marriages and civil partnerships in England and Wales; -decision and conduct of investigations into sham marriages

• meaning of ‘sham marriage’ and ‘sham civil partnership’

• duty to report suspicious marriages and civil partnerships

• solemnization (formal ceremony) of marriage according to rites of the Church of England

• requirement as to giving of notice of marriage or civil partnership

 

The purpose of the investigation is to determine whether, on the balance of probabilities, the proposed marriage or civil partnership is a sham.

 

The investigation officer should undertake a focused investigation to obtain information and evidence relevant to assessing the genuineness of the couple’s relationship and determining whether the proposed marriage or civil partnership is a sham.

 

Under this scheme all proposed marriages and civil partnerships in the UK are to be referred to the Home Office by the registration official if they involve:

 

• a non-EEA national with limited or no immigration status in the UK

• a non-EEA national who does not provide specified evidence that they are exempt from the scheme

 

Cases referred for investigation under this scheme must be conducted in accordance with the statutory guidance and according to the procedures outlined in the marriage and civil partnership referral and investigations scheme section.

 

Notice of marriage or civil partnership at a designated register office (DRO):

 

The following legislation requires all non-EEA nationals, except those exempt from immigration control, to give notice of marriage or civil partnership at a designated register office (DRO):

 

• the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004

• Civil Partnership Act 2004 as amended by section 58 of the Immigration Act 2014

• Referral and Investigation of Proposed Marriages and Civil Partnerships (Northern Ireland and Miscellaneous Provisions) Order 2015

• Referral and Investigation of Proposed Marriages and Civil Partnerships (Scotland) Order 2015

This includes non-EEA nationals with a temporary or permanent right to enter or remain in the UK under the Immigration Rules, and those who have a European Union (EU) right to enter or remain in the UK. For example, holders of EEA family permits, residence cards and permanent residence cards.

 

In England and Wales, both parties to the marriage or civil partnership must attend the DRO together in person.

 

In Scotland and Northern Ireland, notice may also be given by post as well as in person, and it must be given at a designated register office. Currently every register office is designated for Northern Ireland and Scotland.

 

Duty to report suspicions of a sham marriage or civil partnership:

 

Section 24 and 24A of the Immigration and Asylum Act 1999, as amended by section 55 of the Immigration Act 2014, places a duty on a registration officer to report to the Home Office any reasonable suspicions that a marriage or civil partnership will be, or is, a sham. A report can be made at any point from when initial contact is made at the register office to any time immediately after the marriage or civil partnership has taken place.

 

Under schedule 6 of the Immigration Act 2014, a registration officer may also disclose any information or supply any document to the Home Office for immigration purposes. Including for example where a suspected immigration offender while registering a birth or death.

 

Notice periods:

 

Where a decision is made to investigate a proposed marriage or civil partnership under the scheme, the investigation must be conducted in accordance with the Proposed Marriages and Civil Partnerships (Conduct of Investigations, etc) Regulations 2015.

 

The 2014 act extended the marriage and civil partnership notice period from 15 days to 28 days for all couples marrying in the UK following civil preliminaries or forming a civil partnership. It also required all couples involving a non-European Economic Area (EEA) national, who wish to marry in the Anglican Church in England and Wales, to complete civil preliminaries and give notice at a designated register office and be subject to the 28 day notice period.

 

All marriage or civil partnership notices involving non-EEA nationals with limited or no immigration status in the UK are referred from a registration officer to the Marriage Referral and Assessment Unit (MRAU). All referrals are initially assessed by MRAU and consideration is given as to whether to conduct an investigation into the marriage or civil partnership. If the marriage or civil partnership is to be investigated, both parties and the relevant registration official are notified that the notice period is to be extended from 28 to 70 days.

 

Although the notice period is extended to 70 days, the deadline for a notification of the result of the investigation to the registration officer is 65 days.

 

Section 3 of the marriage and civil partnership referral and investigation scheme statutory guidance sets out how an investigation into a proposed marriage or civil partnership should be conducted by the investigating officer for the purpose of establishing whether it is a sham. Including the:

 

• methods of investigation that can be used

• time periods relevant to the conduct of the investigation

• procedures and safeguards applicable to each investigation method

 

The Home Office will assess all referrals against:

 

• intelligence

• evidence based risk profiles

• other information

 

to identify suspect proposed marriages and civil partnerships, and then consider in these cases whether there are reasonable grounds to suspect a sham marriage or civil partnership.

 

Where the Home Office has reasonable grounds to suspect a sham and at least one of the parties is not exempt from the scheme, a decision to investigate whether the marriage or civil partnership is a sham will be taken. Notification of that decision to the relevant registration official will have the effect of extending the notice period from 28 days to 70 days. This will allow the Home Office to investigate and take appropriate enforcement or casework action where a sham is established.

 

Where the investigation determines that the proposed marriage or civil partnership is a sham the Home Office may, where appropriate:

 

• take an enforcement decision, such as curtailment, administrative removal or deportation, against any non-EEA or EEA nationals involved

• refuse any application under the Immigration (European Economic Area) Regulations 2016 (the regulations) or the Immigration Rules which is based on the relationship in terms that will withstand any appeal

• seek the prosecution of those involved in a criminal offence, such as perjury or facilitation of illegal immigration, by consultation with or reference to, the relevant prosecuting authority.

 

Means of investigation:

 

An investigation into a proposed marriage or civil partnership may involve imposing one or more of the following requirement(s) on one or both of the relevant parties

 

• To provide information, evidence or photographs.

• To be interviewed in person at home.

• To be interviewed in person at Home Office premises in or outside the UK or while detained in the UK.

• To be interviewed by telephone, video-link or over the internet.

 

Compliance with requirements of investigations:

 

Both parties to the proposed marriage or civil partnership must comply with the requirements of an investigation. One or both of the parties may be required to provide information, evidence or photographs and be interviewed in any of the following circumstances:

 

• in person at home

• in person at Home Office premises in or outside the UK

• whilst detained in the UK

• by telephone, video-link or over the internet

A couple will be unable to get married or enter into a civil partnership on the basis of that notice if they do not comply with an investigation under the scheme.

 

As part of the investigation, each party may be required to provide information or evidence about:

 

• themselves and about the other party

• their relationship with the other party

• their living arrangements and those of the other party

• their future plans and those of the other party

 

The relevant parties will be asked by the Marriage Referral and Assessment Unit (MRAU) to comply with requirements by the investigating officer so as to conduct the investigation and enable a decision to be made, whether the relevant parties have complied with it, in time for MRAU to give the relevant parties and the relevant registration official notice of that decision by the 70-day notice period.

 

The relevant parties will be asked by MRAU to comply with requirements by the investigating officer so as to prevent a relevant party or parties from frustrating the investigation process by withholding compliance until near the end of the 70-day notice period. This would make it difficult for the Home Office to properly decide the compliance question and give notice of the decision to the relevant parties and registration official before the end of the 70-day period.

 

Once the case has been accepted and allocated by the tasking and co-ordination group, responsibility for subsequent investigation and interviewing arrangements passes to the Immigration Compliance and Enforcement (ICE) team.

 

The parties will be invited to attend an interview.

 

The ICE team or MRAU investigating officers may require one, or both, persons to provide them with information, evidence or photographs to determine whether the relationship is genuine or whether the proposed marriage or civil partnership is a sham. Investigating officers may require persons to provide information, evidence or photographs and must request this in writing.

 

The MRAU or the relevant ICE team may require persons investigated under the scheme, to make contact by telephone, text, email or post to arrange an interview.

 

The ICE team arrange the first interview under Operation Equal procedures and are responsible for re-arranging interviews if required.

 

As part of an investigation under the referral scheme the ICE team investigating officer may require the interviewee or interviewees to participate in an interview:

 

• in person or by telephone where the relevant party is detained under immigration powers or in prison

• in person at their home, or at the other party’s home if living at separate addresses

• in person at Home Office premises

• by telephone, video-telecommunications link or over the internet (where the relevant party must be present at Home Office premises)

• by telephone, by video-telecommunications link or over the internet (where the relevant party is not present at Home Office premises)

 

Failure to comply with an investigation under the scheme:

 

 

A failure to respond to any question asked during an interview, or a refusal to answer any further questions thereby bringing the interview to an end, may be regarded as a failure to comply with the requirement to be interviewed.

 

Under regulation 15 of the Proposed Marriages and Civil Partnerships (Conduct of Investigations, etc) Regulations 2015, the Secretary of State (SSHD) may give notice to the relevant party where they believe that the party has failed to comply with a requirement of the investigation. The notice should be in writing and:

 

• state that the SSHD believes that the relevant party has failed to comply with a requirement and giving the reasons for that belief

• require the relevant party to contact the Home Office within the period stated (which may not be less than a period of 3 working days beginning with the day on which the notice is given) with a view to complying with that (and any other) requirement

• include relevant Home Office contact details – the notice may require the relevant party to make contact by telephone.

 

The Secretary of State is not required to give such a “regulation 15 notice” to a relevant party who they believe has failed to comply with a requirement of the investigation, and it is not necessary for a relevant party to have been given such a notice before the decision maker can decide whether they have complied with the investigation. The onus is on the relevant party to comply with the requirements or any subsequent notification to them.

 

Where the decision maker decides that one or both of the relevant parties have not complied with the investigation, they must give notice of that decision to both relevant parties and the relevant registration official before the end of the 70-day notice period. That notice must include a statement of the decision maker’s reasons for reaching that decision.

 

Reasonable excuse for non-compliance:

 

The decision maker must decide, in the light of all the circumstances of the case and all the relevant information and guidance available to them, whether any reason or excuse given by either or both of the relevant parties for the failure by either or both of them to comply with a requirement notified to them constitutes a “reasonable excuse” for that non-compliance.

 

Such a reasonable excuse may exist for example where:

 

• There are compelling, compassionate reasons for failing to comply with the requirement.

• There are reasons beyond the control of the relevant parties which prevented them from complying with the requirement.

• There has been administrative failure by the Home Office.

 

Other investigations into suspect marriages:

 

Where intelligence indicates that a sham marriage is planned, or has already been contracted without a referral being made by a registration official, enforcement officers may investigate the relationship as part of normal enforcement action to determine the immigration status of those involved.

 

When it is necessary to interview suspects about the genuineness of their marriage or civil partnership at non-Home Office premises, enforcement officers must conduct the interview according to procedures outlined in the marriage interviews guidance. The interview record may be used for evidential purposes.

 

Where information suggests that a marriage has been contracted for a criminal purpose, such as facilitation and obtaining leave by deception, a Criminal Investigation team must be notified.

 

There is no criminal offence of entering into a sham marriage but there are other offences for which a person could be prosecuted for involvement in a sham marriage. These include:

 

• section 24A of the Immigration Act 1971 – obtaining or seeking to obtain leave to enter or remain in the UK by deception

• section 25(1) of the Immigration Act 1971 – assisting unlawful immigration (facilitation)

 

(5)CRIMINAL INVESTIGATIONS: SHAM MARRIAGES

 

Offences relating to sham marriages:

 

Throughout the UK there are 3 main prosecuting authorities for criminal matters relating to all immigration crime:

 

• the Crown Prosecution Service (CPS) – responsible for all cases in England and Wales

• the Crown Office and Procurator Fiscal Service (COPFS) – Scotland’s prosecution service

• the Public Prosecution Service for Northern Ireland (PPS)

 

The main types of offences relating to sham marriages are:

 

• facilitation (assisting people to enter the UK illegally)

• conspiracy to facilitate

• deception

• bigamy

• perjury

 

There are also offences available under the Civil Partnership Act 2004. In England and Wales:

 

• section 32: offences relating to Registrar General’s Licence

• section 33: offences relating to the recording of civil partnerships

• section 80: false statements with reference to civil partnerships

 

In Scotland, section 100: offences.

 

In Northern Ireland:

 

• section 158: offences

• article 8: perjury (Northern Ireland) Order 1979 false statements with reference to marriage (amended by Section 204)

(6)ENFORCEMENT INTERVIEWS

 

Types of enforcement interview:

 

Immigration enforcement officers may choose to try and engage any person they encounter in normal conversation but, where the purpose of the conversation is to gather information for a law enforcement purpose it is a formal interview. An enforcement interview is distinct from a normal conversation in that its purpose is to seek out and evaluate information for a specific purpose.

 

The different types of enquiry or investigation commonly conducted by Immigration Enforcement officers are:

 

Administrative enquiries – interview(s) that follow 3 distinct stages:

 

• exploratory questioning

• initial examination under paragraphs 2 or 2A of schedule 2 to the Immigration Act 1971

• further examination – usually away from the scene

 

Formal criminal enquiries – an interview conducted under PACE where it is intended to actively pursue prosecution – a criminal caution is given and the person is notified that they are entitled to free legal advice. Usually conducted in police station following criminal arrest – recorded via electronic audio recording.

 

Administrative enforcement interviews- marriage and civil partnership:

 

A marriage or civil partnership (MCP) interview is an administrative enforcement interview intended to establish whether:

 

• the parties to the marriage or civil partnership are in a genuine relationship or if the marriage or civil partnership is a sham, for example; it has been entered into to evade the operation of immigration control

• a breach of immigration law has taken place

 

 

Conducting the marriage or civil partnership (MCP) interview:

 

The types of questions the Home Office  caseworker ask will differ depending on the type of marriage (such as love match or arranged) and the cultural backgrounds of the couple. The caseworker  must ensure that  their  line of questioning is tailored according to the answers provided and that  they  pursue any inconsistencies in answers given.

 

The caseworkers questioning must be sufficiently probing to gauge, for example, how much the couple know about each other, their families, their wedding guests, their home life and shared commitments, and experiences. The caseworker must avoid asking inappropriately intrusive questions, for example, about their sex life.

 

The caseworker must conduct interviews in a properly probing, but balanced way, with the questions directed to establishing whether the relevant parties are in a genuine relationship and whether their proposed marriage or civil partnership is a sham. For example, the caseworker might ask the relevant party or parties about:

 

• the background to, history of and subsistence of the parties’ relationship

• their general background and immigration history

• their living arrangements

• the arrangements for the proposed marriage or civil partnership

• the parties’ future plans

 

In the case of ‘Marriage and civil partnership referral and investigation scheme’ investigations, the caseworker  may regard a failure to respond to any question asked during an interview, or a refusal to answer any further questions thereby bringing the interview to an end, as a failure to comply with the requirement to be interviewed.

 

The caseworker must make a written record of the interview and provide the party or parties interviewed with a copy of this record if they request it. This record must:

 

• be completed during the interview

• constitute a verbatim account of what is said or an account of the interview which adequately summarises it

• be signed and dated by the official of the Secretary of State who made the record

 

If ‘no comment’ answers are given during the marriage or civil partnership interview, the caseworker is  required to  pursue and finish their line of questioning. No comment responses can be deemed non-compliant with the scheme. If the interview is being conducted as part of an MRAU investigation the claimant should be warned that failure to comply with the scheme will mean they will be unable to marry at the end of the notice period.

 

Failure to answer questions may be a criminal offence under section 26(1)(b) of the Immigration Act 1971. If ‘no comment’ answers are given during the interview, the caseworker is  required to pursue and finish their  line of questioning. The interviewee should be reminded of the consequences this might have and must be given an opportunity to present their case. Any subsequent decision to pursue removal action must be based on the balance of probabilities, including what  the caseworker  deduce from non-compliance.

 

It is Home Office policy to allow persons being administratively interviewed about their status under the Immigration Act 1971 to be legally represented at their own cost. They may also request to be accompanied by a friend or companion. The role of the friend or companion is solely to provide emotional or physical support and they must not intervene during the interview.

 

Legal representatives should be given the opportunity to privately consult with their client before an interview takes place. During the interview they may quite properly intervene or make challenges in order to ask that questions are clarified or to object if legal procedure is not being followed. Legal representatives should not answer questions on behalf of their clients.

 

If the legal representative makes an oral complaint during the course of the interview, the caseworker is  required to record fully the nature of the complaint/issue and attempt to resolve it at that point. If  they are unable to resolve it to the satisfaction of all parties,  they should refer to the Chief Immigration Officer (or the custody sergeant if a criminal interview at a police station).

 

(7)ENFORCEMENT VISITS

 

Marriage investigation visits to residential premises:

 

Marriage investigation visits are not usually expected to result in arrest but must still be planned and assessed for risk as for any other operational visit. Although the nature of the visit may not present an obvious likelihood of an arrest being made the possibility must be allowed that third parties may be present who may have cause to wish to evade contact with the authorities or who may be hostile in the face of an investigation taking place.

 

Marriage and compliance visits to residential premises can be conducted by a minimum of 2 Immigration Enforcement officers.

 

Conduct of ‘non-scheme’ marriage investigations:

 

Unannounced visits to test the genuineness of a relationship must not be made where the investigation has been referred as part of the ‘Marriage and civil partnership referral and investigation scheme’. This does not preclude necessary visits to investigate suspected immigration offences.

 

In other circumstances, where information suggests that a sham or forced marriage has been planned or has already been contracted it may be appropriate to make enquiries at the residential address in order to assess whether an offence or breach has been committed.

 

If no one is at the premises when the visit takes place, officers must consider speaking to neighbours about who lives at the residential address. At least 2 attempts must be made to visit the couple at the premises subject to operational resources.

 

If no interview takes place, the officer  must record the outcome and any observations from their  visit in their pocket notebook.

 

Suspect marriages involving European Economic Area (EEA) nationals:

 

Immigration officers encounter persons who are not themselves EEA nationals but claim to be the spouse or civil partner of one and who therefore claim to be entitled to live and work in the UK.

 

If the Immigration Officer has  reasonable grounds to suspect that a claimed marriage or civil partnership is not genuine, they must investigate further. Reasonable grounds could include the context in which they encountered the person, their behaviour or their responses when interviewed. If  the Officer  has reasonable grounds for suspecting that an immigration criminal offence may have been committed,  they must seek advice of CFI and may, if appropriate, conduct a criminal arrest and detain them in accordance with the Police and Criminal Evidence Act 1984 or equivalent processes in Scotland and Northern Ireland pending further investigation (including a visit to their home address, if appropriate).

 

If the evidence shows that they are not a genuine spouse or civil partner of an EEA national, and have not previously been issued a residence card, then they have no EU rights and are liable to administrative arrest, curtailment and/or removal in the same way as any other non-EEA national without leave.

 

Examples of grounds for suspicion include:

 

• During illegal working visits :-If during an illegal working operation an officer encounters a non-EEA national who claims to be a family member but has not provided this evidence (or if the officer suspects evidence has been forged) this would provide reasonable grounds for investigating further. If an employer has conducted right to work checks, it would be usual for a non-EEA family member of an EEA national to have provided their employer with either a valid residence card, (or a derivative residence card, or permanent residence card) or a certificate of application, although possession of these documents is not a requirement to exercise the right to work. Where someone was employed with a certificate of application, but this has since lapsed, the officer must liaise with colleagues in European casework to confirm that the certificate was validly issued and that the subject still has a right to work.

• Visits to domestic premises or other encounters:- On a visit to domestic premises an immigration officer may encounter a person who claims to be the family member of an EEA national and has not obtained a residence card. Their living arrangements may support or cast doubt on their claim. Where there are reasonable grounds to suspect the claim is false, the officer must request proof of the relationship (for example, a genuine passport endorsed with an EEA family permit issued by a UK Visas and Immigration visa section and/or a genuine marriage certificate). If there is no evidence that their partner or family member is living with them, the officer must ask them to explain where they are. Where someone is stopped in the course of a street operation because their behaviour is suspicious, the officer must ask relevant questions about their claim to have EU law rights. If the officer has reasonable grounds for suspecting that an immigration offence or breach has been committed, for example, if their responses suggest that their claim to be an EEA family member is fictitious, the officer may administratively arrest them and interview them further.

 

Visits to marriage register offices:

 

It is unlikely that visits to register offices to investigate marriages will be necessary since the introduction of the Immigration Act 2014 requiring registry officials to refer suspicious proposed marriages and civil partnerships for investigation where a spouse is a foreign national.

 

It may however be necessary to visit either a designated or non-designated register office in order to apprehend a suspected offender where no reliable home address is known, or where the likelihood of encountering the person at the home address is low. Before conducting a visit to a register office all pre-visit checks must be carried out and arrangements to conduct the visit made with the superintendent registrar. The agreement of the superintendent registrar, or their deputy in their absence, to enter the premises must also be obtained in advance.

 

Officers must be aware that parties who have been arrested and charged with immigration offence or breaches, regardless of the venue, may still be able to arrange for their marriage or civil partnership to take place on another day.

 

Furthermore, officers have no power to prevent a marriage taking place where the couple, or one of the parties to the marriage, are not arrested. Only a registrar may prevent a marriage on the grounds that there is a legal impediment to the marriage. However, proceeding with a marriage or civil partnership will not result in any immigration advantage where the evidence proves that it is a sham.

 

(8)ADMINSTRATIVE REMOVAL

 

An EEA national or their family member (or any person with a derivative right of residence) can be administratively removed from the UK for the following reasons:

 

• they never had or stopped having a right to reside under the regulations (regulation 23(6)(a)

• their removal from the UK is justified on the grounds of the misuse of a right to reside (regulation 23(6)(c))

 

Unlike a decision to deport (under 23(6)(b), a person who is administratively removed from the UK is not subject to a fixed bar on re-entry. However, in line with regulation 26(4), where a person has been administratively removed from the UK, and they seek to re-enter within 12 months of that removal, they must show they are exercising Treaty rights immediately upon re-entry.

 

 

Invalidation of documentation following a decision to remove:

 

In line with regulation 24(2), a decision under regulation 23(6) to remove a person from the UK will (except during any period in which a right of residence is deemed to continue in line with regulation 16(2) invalidate the following documents held by that person:

 

• registration certificate

• residence card

• document certifying permanent residence

• permanent residence card

• derivative residence card

 

Also, any application made by that person for such a document where there has been a removal decision made under regulation 23(6) will invalidate that application.

 

This means that the Home Office caseworker does not need to revoke a document held by a person in order to remove them from the UK. This is because any such removal will automatically invalidate that document.

 

Administrative removal papers:

 

The administrative removal papers are:

 

• IS151A (EEA) – this tells the person about their immigration status and liability to detention and removal

• IS151B (EEA) – this tells the person about their right of appeal from outside the UK against the decision to remove

• IS151D (EEA) – this tells the person about the arrangements for their removal

 

Service of the IS151B (EEA) gives a right of appeal in line with regulation 36, and triggers a period of 14days during which the person can appeal the decision to administratively remove.

 

Regulation 32(6) states the EEA national or their family member should be allowed one calendar month (interpreted as 30 days) to leave the UK voluntarily. This begins on the date on which they are notified of the decision to remove by form IS151B (EEA), before enforced removal.

 

EEA administrative removal- powers and criteria:

 

EEA Regulation 23(6)(a): no right to reside:- Regulation 23(6)(a) may be used where there is evidence that the person never had, or has ceased to have, a right to reside under the EEA Regulations, for example where:

 

• the Home Office has previously recognised a non-EEA national as having an EEA right (for example a family permit), but evidence later suggests rights were gained on the basis of a marriage of convenience and the person is attempting to make use of EU rights they never had

 

Removals under regulation 23(6)(a) must meet one of the following criteria, either:

 

• the person must:-not yet have acquired a right of permanent residence;-have no rights to reside on any other basis;-be failing to exercise a Treaty right or they are the family member of an EEA national who is failing to exercise a Treaty right;-have been resident in the UK for longer than 3 months if they are an EEA national (this does not apply to EEA family members)

• there is evidence that the person never had a right to reside under the EEA Regulations (for example through a sham marriage)

 

In all cases, it must also be proportionate to proceed with a removal given all the circumstances of the case.  Regulation 23(6)(a) applies as if the individual were someone to whom section 10(1)(a) of the 1999 Act applies (EEA Regulation 32(2) refers).

 

Determining suitability for administrative removal:

 

Before a caseworker takes  a decision to remove an EEA national or a family member of an EEA national, they must take all reasonable steps at that time to ascertain whether the individual fits the EEA administrative removal criteria as detailed under:

 

• EEA Regulation 23(6)(a): no right to reside

• EEA Regulation23(6)(c): misuse of a right to reside

 

Before proceeding with an EEA administrative removal, the caseworker must also determine that a public policy decision or deportation is not a more appropriate removal option for the case.

 

If a caseworker is  satisfied that the individual fits the EEA administrative removal criteria they  should proceed straight to service of administrative removal papers. For example, where a person admits to a engaging in a marriage of convenience, during the initial encounter.

 

 

Non-EEA national has been issued residence documentation:

 

Where a non-EEA national has been issued with a document by the Home Office confirming a right of residence under EU law, any removal action must be taken under the EEA Regulations 2016.

 

Documents issued to non-EEA nationals to confirm EU law rights are:

 

• EEA family permit

• UK issued residence card

• UK issued permanent residence card

 

In these cases a removal decision should be taken under regulation 23(6)(a) of the EEA Regulations 2016 which automatically invalidates the residence card. An appeal against removal under regulation 23(6) will suspend removal.

 

No EU rights exist and no EEA documentation has been issued:

 

If the evidence shows that they are not a direct family member of an EEA national, and have not previously been issued a residence card, then they have no EU rights and are liable to removal in the same way as any other non-EEA national without leave.

 

If the evidence shows that they are a genuine direct family member of an EEA national, they have EU rights and are liable to removal in the same way as any other EEA national if they meet the EEA administrative removal criteria.

 

Where however no EU rights exist and no EEA documentation has been issued, normal provisions for removing a non-EEA national will apply.  The Caseworker can proceed with removal in accordance with part 1, section 1, of the Immigration Act 2014 if the person requires leave to enter or remain in the UK but does not have it.

 

If extant leave to enter or remain (such as work or student leave) needs to be curtailed, the curtailment caseworker will make a simultaneous removal decision under section 47 of the Immigration, Asylum and Nationality Act 2006.

 

If an individual has both falsely obtained a residence card and existing leave to enter or remain, the caseworker is required to make the regulation 23(6)(a) decision first. The existing leave can then be curtailed.

 

Non – EEA cases:

 

Where notice has been given, or a marriage taken place, involving a person with no valid leave and a non-EEA or British national, the caseworker  should consider serving enforcement papers and proceeding with appropriate removal action. Regardless of whether the relationship appears to be genuine.

 

Genuine relationships and service of enforcement papers:

 

Where there is evidence that a non-EEA immigration offender is now genuinely married to an EEA national,  Home Office caseworkers  must not serve enforcement papers on the non-EEA national immigration offender. This is regardless of whether an application has been made for a residence card under the EEA Regulations.

 

However, they can serve enforcement papers where a person meets all of the following criteria:

 

• is the genuine unmarried partner of an EEA national

• does not yet hold an EEA residence card

• is an immigration offender

 

This is because a person has no rights under European Union (EU) law as an unmarried partner of an EEA national until they have been issued a residence card on this basis. In such circumstances, the caseworker must advise them to submit an application on this basis and ask European casework to expedite any application received. If no application is submitted within a reasonable timeframe,  the caseworker  can proceed with removal action.

 

One party to the marriage may have been deceived by their partner and believes they are entering into a genuine marriage. If, following interview, it is clear that the EEA national believed they were entering into a genuine marriage and that, they have not engaged in fraud or abuse; the caseworker must not serve removal papers on the EEA national.

 

Service of administrative removal papers and relevant forms:

 

A Home Office caseworker can proceed to serve administrative removal papers on the individual, after the following actions are complete:

 

• initial investigations

• public policy decisions and deportation have been ruled out

• it is determined criteria for administrative removal has been met

• it is considered proportionate to administratively remove

• Form IS151A (EEA) -notice of liability to removal.

• Form IS151B (EEA) – notification of decision to remove.

• Appeals papers (ICD.1041 and ECD.3138).

• Form IS126E – confirming decision and authorities.

• Form IS151D- removal directions.

• Form IS96 (EEA) form placing individual on temporary reporting with reporting restrictions.

 

Where suitability for administrative removal has been established, in the absence of the individual, the IS151A (EEA) and IS151B (EEA) can be served to file.

 

Notification periods:

 

Service of the IS151B (EEA) provides a right of appeal by virtue of EEA Regulation 36, and triggers a period of 14 days during which the individual can appeal the decision to administratively remove. The caseworker must also serve relevant appeals papers (ICD.1041 and ECD.3138).

 

EEA Regulation 32(6) states that the EEA national or their family member must be allowed one calendar month (interpreted as 30 days) to leave the UK voluntarily. This begins on the date on which they are served notification of the decision to remove by form IS151B (EEA), before an enforced removal. Removal must take place as soon as possible following this period of notification.

 

Removal cannot take place while any in country appeals are ongoing.

 

• Form IS151A (EEA):Does not initiate any notice period

• Form IS151B (EEA):Initiates 2 periods of notice that will run simultaneously: -a 30 day (minimum) period of notice during which the individual is invited to leave the UK -a 14 day notification for appeals. The notification period of one calendar month, may not apply in cases of duly substantiated urgency where the person is detained following sentencing or a court order. For example, foreign national offender (FNO) cases that will remain in custody whilst being considered under the early removals scheme (ERS).

• Form IS151D:The form must be served at least 72 hours before removal, with a removal date at least one calendar month after service of the IS151B (EEA). In practice the IS151D form can be served along with the IS151B (EEA) allowing the 72 hours period to run concurrently with the other periods of notice.

 

(10)REMOVAL DECISIONS AND REMOVAL PATHWAYS

 

Where a Home office caseworker has reasonable grounds to suspect an individual has either entered into, attempted to enter into, or assisted another person to enter or attempt to enter into, a marriage of convenience, they  must identify the most appropriate removal pathway.

 

The removal pathway for these cases (either administrative removal or a public policy decision) will depend on whether the individual is an EEA national or not, and whether EU rights have previously been recognised by the Home Office.

 

The various removals pathways for individuals involved in sham marriages or civil partnerships, and marriages or durable partnerships of convenience are as follows in relation to non- EEA nationals:

 

• Overstayers, illegal entrants, breach of conditions, and leave by deception cases: Where an EEA residence card has not been issued, and the individual concerned does not have free movement rights under EU law, an Administrative removal decision would be made. Applicable would be the standard non-EEA administrative removal procedures.

• Extant leave (but assisting, entering or attempting to enter a marriage of convenience) cases: Where an EEA residence card has not been issued, and the individual concerned does not have free movement rights under EU law, an Administrative removal decision would be made. The result would be curtailment and simultaneous standard administrative removal decision by fast track referral to curtailment team.

• Marriage of convenience EEA residence card issued cases: (for example Home Office previously recognised an EEA right on the basis of a sham relationship, but evidence now suggests that the person never had a right to reside under the EEA Regulations). An Administrative removal decision would be made. EEA administrative removal procedures under EEA Regulation 23(6)(a) – which automatically invalidates the extant EEA card. Any extant leave must be curtailed after the 23(6)(a) decision.

• Genuine family member, but involved in misuse of free movement rights cases: (for example facilitating a marriage of convenience). This would result in a public policy decision, Regulation 23(6)(b) of EEA Regulations 2016- decisions taken on public policy or public security grounds.

• Involved in a marriage of convenience cases: (for example facilitating or entering or attempting to enter a marriage, civil partnership or durable partnership of convenience). This would be a public policy decision. Regulation 23(6)(b) of EEA Regulations 2016. EEA guidance: decisions taken on public policy or public security grounds.

 

Relevant legislation- Identifying EEA removal pathways:

 

The regulation changes also re-number the EEA administrative removal regulations, as summarised in the following table:

 

• Does not or ceases to have a right to reside:- Was previously covered by Regulation 19(3)(a) of the 2006 Regulations. Now Regulation 23(6)(a) of the 2016 Regulations applies.

• Public policy, public security or public health:- Was previously covered by Regulation 19(3)(b) of the 2006 Regulations. Now Regulation 23(6)(b) of the 2106 Regulations applies.

• Misuse of a right to reside:- Was previously covered by Regulation 19(3)(c)  of the 2006 Regulations. Now Regulation 23(6)(c) of the 2016 Regulations applies.

• Entry in breach of a deportation or exclusion order:- Was previously covered by Regulation 24(4) of the 2006 Regulations. Now Regulation 32(4) of the 2016 Regulations applies.

 

(11)DEPORTATION: PUBLIC POLICY, PUBLIC SECURITY AND FUNDAMENTAL INTERESTS OF SOCIETY

Decision to deport from the UK:

 

Regulation 23(6)(b) of the EEA Regulations 2016 allows for the deportation of EEA nationals or their family members on grounds of public policy or public security. Any such decision must be made in accordance with regulation 27 of the EEA Regulations 2016. The UK government’s policy is to pursue the deportation of EEA nationals or their family members when the person’s conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

 

Where a decision is taken to exclude or remove an EEA national or their family member on the grounds of public policy or public security in order to protect the fundamental interests of society, consideration must be given to whether the conduct of the individual represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

 

Public policy and public security are not defined in the directive or the EEA Regulations 2016. Since there is no uniform scale of public policy or public security values across member states, the UK government has discretion as to the standards of public policy and public security that apply in the UK from time to time. This position is reinforced by paragraph 1 of schedule 1 of the EEA Regulations 2016.

 

The EEA Regulations 2016 set out the government’s view of the fundamental interests of society in the UK in the context of the regulations. This is a statement about the types of interests, which if threatened, might provide legitimate grounds for removing or excluding an EEA national or their family member. The list is non-exhaustive.

 

The EEA Regulations 2016 require the courts or tribunals to take into account these interests when considering, for example, an EEA national’s appeal against a deportation decision.

 

Where a decision is taken to exclude or remove an EEA national or their family member on the grounds of public policy or public security in order to protect the fundamental interests of society, consideration must be given to whether the conduct of the individual represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

 

Regulation 27 and schedule 1 of the EEA Regulations 2016 set out the principles to be considered when making a decision to refuse admission, exclude, refuse or revoke residence or remove an EEA national or their family member from the UK on grounds of public policy or public security.

 

Article 28 of the directive provides additional protection in relation to decisions to remove an EEA national or their family members including higher thresholds for the removal of certain EEA nationals and their family members based on their length of residence in the UK. A different threshold applies where the decision relates to a person who has a permanent right of residence or, in relation to an EEA national only, who has resided in the UK for a period of at least ten years or who is a child.

 

Where an EEA national or their family member has established a permanent right of residence, a decision to refuse admission, exclude, revoke residence or remove the person from the UK, is only permitted on serious grounds of public policy or public security.

 

Under regulation 27(4) of the EEA Regulations 2016, a decision to refuse admission, exclude, revoke residence or remove the person from the UK, is only permitted on imperative grounds of public security. Where an EEA national either:

 

• has resided in the UK for a continuous period of at least ten years prior to the decision

• is under the age of 18, unless the relevant decision is in the best interests of the person concerned, as provided for by the Convention on the Rights of a Child.

 

Relevance to marriages of convenience:

 

Entering, or attempting to enter, a marriage, civil partnership or durable partnership of convenience for the purpose of circumventing the UK’s immigration controls is also considered contrary to the fundamental interests of society. As set out in paragraph 7(a) of schedule 1 to the EEA Regulations 2016.

 

The fundamental interests of society in the UK as set out in schedule 1 of the Immigration (European Economic Area) Regulations 2016 and provides examples of the types of behaviour that are contrary to those interests.

 

Schedule 1 of the EEA Regulations 2016 provides a non-exhaustive list of the fundamental interests of society in the UK. Consideration must be given to the fundamental interests of society to determine whether it is appropriate to restrict a person’s free movement rights on the grounds of public policy and public security.

 

The fundamental interests of society include preventing unlawful immigration and abuse of the immigration laws, and maintaining the integrity and effectiveness of the immigration control system (including under the regulations) and of the Common Travel Area. Examples of behaviour contrary to this interest include marriages of convenience or durable partnership of convenience.

 

Paragraph 6(a) of schedule 1 to the EEA Regulations 2016 states that it is consistent with public policy and public security requirements to refuse, terminate or withdraw an EEA right where it involves entering or attempting to enter into a marriage, civil partnership or durable partnership of convenience.

 

A non-EEA national who has entered into a marriage or civil partnership of convenience must be treated as an immigration offender under the Immigration Rules. This is unless the person has already been issued a document under the EEA Regulations 2016 as the spouse or civil partner of an EEA national.

 

If a document has been issued, the non-EEA national must be considered under the EEA Regulations 2016. Removal action can be taken under regulation 23(6)(b).

 

Indefinite deportation orders and time-limited deportation orders:

 

The EEA Regulations 2016 introduced a range of deportation orders, ranging from indefinite deportation orders to time-limited deportation orders. All of these provisions came into force on 1 February 2017.

 

The changes mean that EEA nationals involved in a marriage, civil partnership or durable partnership of convenience is subject to a public policy decision can be removed from the UK by means of a time-limited deportation order rather than an administrative removal, as was the case under the EEA Regulations 2006.

 

A decision to deport on the grounds of public policy can be considered where there are reasonable grounds to suspect an EEA national has entered into, attempted to enter into, or assisted another person to enter into or attempt to enter into, a marriage, civil partnership or durable partnership of convenience.

 

Such decisions can be made under regulation 23(6)(b) of the EEA Regulations 2016, where this is considered proportionate.

 

In addition to the EEA administrative removal criteria, certain types of behaviour considered contrary to the fundamental interests of society (as set out in schedule 1 to the EEA Regulations 2016) may mean the EEA national is more suited to removal under a time-limited deportation order on the grounds of public policy (regulation 27) rather than through an administrative removal.

 

This behaviour includes:

 

• abuse of immigration laws such as marriage, civil partnership and durable partnership of convenience and fraudulently obtaining a right to reside

• low level persistent offending

• criminality

• evasion of taxes and duties

 

Re-entry restriction following a deportation order:

 

In accordance with regulation 23(8) a person deported from the UK on the grounds of public policy or public security will be prohibited from entering the UK until the deportation order is revoked or for the period specified in the deportation order.

 

The EEA Regulations 2016 introduce time-limited deportation orders for some deportation decisions made under regulation 23(6)(b). The length of the re-entry restriction associated with the deportation order will depend on the risk that is imposed to the fundamental interests of society.

 

The type of behaviour and length of re-entry bans are as follows:

 

• Unlawful immigration and/or facilitating immigration abuse where there is no criminal conviction for example marriages of convenience use of fraudulent documents:- 3years.

• Social harm for example anti-social behaviour:-5 years or 10 years depending on the number, severity, and time span of the offences committed.

• Evasion of taxes and duties for example customs excise evasions:- 5 years or 10 years depending on the number, severity, and time span of the offences committed.

• Abusing public services for example income tax evasions, benefit fraud:- 5 years or 10 years depending on the number, severity, and time span of the offences committed.

• Low level persistent criminality for example where there are a number of convictions, warnings and/or cautions for low level crimes such as shop-lifting:- 5 years or 10 years depending on the number, severity, and time span of the offences committed.

 

The above is not prescriptive and in some cases the re-entry restriction may differ depending on the specifics of each individual case. In cases of serious criminality not covered above, an indefinite deportation may apply.

 

Once deported, the individual is prohibited from returning to the UK unless they successfully apply to have the order revoked or until after the period specified in the order. An individual who is subject to either an indefinite or time-limited deportation order can apply to the Home Office for revocation of the order. Such an application must be made from outside of the UK after the individual has been deported.

 

(12)RELEVANT HOME OFFICE POLICY GUIDANCE

 

• *Free Movement Rights: direct family members of European Economic Area (EEA) nationals, Version 5.0, 21 April 2017

• *Marriage Investigations, Version 2.0, 1 February 2017

• *Enforcement interviews Version v1.0, 12 July 2016

• *Enforcement visits Version 2.0, 19 January 2017

• Free Movement Rights: extended family members of EEA nationals, Version 4.0, 11 April 2017

• EEA decisions on grounds of public policy and public security, Version 1.0, 1 February 2017

• EEA family permits: guidance for entry clearance officers, Version 2.0, 13 March 2017

• EEA decisions on grounds of public policy and public security, Version 1.0, 1 February 2017

• Removals and revocations of European Economic Area (EEA) nationals, Version 2.0, 1 February 2017

• European Economic Area (EEA) administrative removal, Version 3.0, 1 February 2017

• Criminal investigation: sham marriage, v1.0, 19 August 2015

• Immigration Act 2014 , Marriage and civil partnership referral and investigation scheme: statutory guidance for Home Office staff , March 2015

 

 

(13)SOME SUGGESTIONS ON HOW TO COUNTER ALLEGATIONS OF MARRIAGE OF CONVENIENCE

 

• Have the right EEA Regulations in mind along with corresponding provisions of the parent Directive.

• Consider in detail relevant Home Office Guidance policy as some provisions may assist an Applicant’s case.

• Carefully consider relevant caselaw and have regard to principles arising.

• Ensure all relevant original evidence has been carefully examined in advance.

• Present all relevant original divorce papers as applicable so as not to be taken by surprise later on by sole reliance on the current marriage certificate.

• Where there are children to the marriage, the original full birth certificates and supportive evidence need to be presented in this regards to show the children reside with the parties.

• As much original evidence as possible to be provided showing the marriage is genuine and subsisting by reference to official correspondence such as bills, joint bank statements, joint tenancy agreements, dated photos, videos etc.

• Strongly consider presenting by way of a well prepared witness statement or in the event of an appeal, tender relevant witnesses to confirm the party’s relationship is genuine.

• As regards addressing the refusal decision, so as to counter any alleged inconsistencies in a lengthy marriage interview, address this via well-prepared appeal statements seeking to ensure that the party’s responses are taken in their proper context and also by reference to the supportive evidence.

• Ensure that there is relevant up to date evidence that the EEA national is still exercising his treaty rights in the UK, for example provision of updated payslips and bank statements.

• Where pursuing an appeal, the Appellant’s bundle should contain all relevant supportive evidence, as well as the relevant statutory material, polices and caslaw law.

• Where appearing before the Tribunal, ensure all original supportive documents are brought to the hearing so as not to simply rely upon the copies contained within the Appellant’s bundle.