Not only did this Appellant win her appeal in 2015 but did so for a second time in April 2022, successfully countering the Secretary of State’s further unproven allegations that her marriage to an EEA national was one of convenience.
The Appellant, CZ, contended that as a spouse, she had made a valid application under Appendix EU of the Immigration Rules and was eligible for indefinite leave to remain as a family member of a relevant European Economic Area (EEA) citizen and satisfied one of the conditions of Rule EU11 of Appendix EU.
Relevant provisions of Appendix EU:
Annex A Definitions of Appendix EU, provides the definition of civil partnership of convenience, durable partnership of convenience, marriage of convenience as entered into as a means to circumvent:
- any criterion the party would have to meet in order to enjoy a right to enter or reside in the UK under the EEA Regulations; or
- any other provision of UK immigration law or any requirement of the Immigration Rules; or
- any criterion the party would otherwise have to meet in order to enjoy a right to enter or reside in the UK under EU law; or
- any criterion the party would have to meet in order to enjoy a right to enter or reside in the Islands under Islands law
The definition of spouse does not include a marriage of convenience.
What seemed to count against the Appellant:
The odds seemed stacked against CZ:
- She disclosed during a marriage interview, that due to disagreements with the EEA sponsor, there had been several periods of separation during the 5year period she held a residence card between 2015 and 2020
- Whilst living elsewhere, she conceived and bore a child with another man after a one-off encounter
- Having reconciled with the EEA national following the birth of the child, and upon seeking to apply for indefinite leave to remain under Appendix EU, along with the Sponsor she was subjected to a marriage interview by the Home Office at the end of 2020
- A total of 390 questions were asked during the interview. The Interviewing Officer sought in 2020 to dig up and revisit matters which a previous Tribunal Judge had in 2015 decided did not go towards proving a marriage of convenience
- Relying on alleged inconsistencies arising out of the marriage interview, the Secretary of State’s position, as per the refusal decision was that the Appellant’s marriage was one of convenience.
Summary arguments for the Appellant:
I represented CZ and amongst other issues, submitted during the appeal hearing that:
- the discrepancies relied on by Home Office were peripheral at best and had been fully addressed by the Appellant and the EEA Sponsor in their witness statements.
- Devaseelan, STARRED Secretary of State for the Home Department v D (Tamil)  UKIAT 00702, applied to the Tribunal’s previous decision.
- The Secretary of State had not discharged the burden of proof- Sadovska & Anor v Secretary of State for the Home Department (Scotland) (Rev 1)  UKSC 54
- There was ample evidence to show that the marriage was genuine and subsisting and that the couple were living together and had been for over 5 years.
- The appeal should be allowed
Reliance was placed upon the following line of cases:
- Sadovska & Anor v Secretary of State for the Home Department (Scotland) (Rev 1)  UKSC 54
- Rosa v Secretary of State for the Home Department  EWCA Civ 14
- Agho v The Secretary of State for the Home Department  EWCA Civ 1198
- Papajorgji (EEA spouse – marriage of convenience) Greece  UKUT 38 (IAC)
Why the Tribunal Judge found the marriage was not one of convenience:
The Judge expressed that it was not easy to understand the basis of the Secretary of State’s decision in the appeal, reasoning and concluding as follows:
- There were no divorce proceedings, and none were planned.
- The EEA Sponsor’s presence in the United Kingdom as a qualified person was enough, even if the couple were no longer living together.
- The genuine nature of the marriage had been upheld in a determination promulgated in 2015 and as submitted, Devaseelan applied.
- There was no basis for seeking to reopen the genuine nature of the marriage. Whether the marriage was in trouble (having been found genuine) was not relevant to the fact of over 5 years’ residence and the continued presence in the United Kingdom of both parties.
- the evidence showed that the Appellant and her EEA Sponsor reconciled after a period of difficulty and from that it may safely be inferred that their marriage had been strengthened. Both gave full and exceptionally frank evidence, which the Tribunal accepted as true without hesitation. Their evidence was consistent with their answers at interview.
- The Tribunal was satisfied that the marriage was genuine and subsisting. It was not a marriage of convenience and never has been.
- The Appellant met the conditions of Regulation EU11.3(a)(ii), (b) and (c).
The Tribunal Judge concluded that the Appellant’s appeal succeeded, and she was entitled to Indefinite Leave to Remain under Appendix EU.