One type of appeal that frequently arises before the First Tier Tribunal (Immigration and Asylum Chamber) is a challenge to a decision by the Secretary of State for the Home Department (‘SSHD’) to refuse an application for a residence card to the spouse of an EEA national who has moved to the UK, the EEA national asserting that she is exercising EU Treaty rights. The SSHD’s ground for refusal is that the spouse does not have a right of residence to be confirmed by a residence card, as the spouse is not a family member of the EEA national for the purposes of the Immigration (European Economic Area) Regulations 20061 because the definition of ‘spouse’ expressly does not include the spouse to a marriage of convenience. There decisions are called ‘EEA decisions’.
Immigration law can be seen as operating on various layers, with each layer operating relatively independently of the others. One layer, is the EEA layer. This layer is generally considered to be attractive to those seeking to enter the UK, as it offers some relatively easy routes to gaining permission to reside in the UK (if of course, its qualifying criteria can be satisfied). Eligible applicants are not subject to the regime imposed by the Immigration Rules2.
To refresh, the EEA consists of the member states of the EU plus Switzerland, Norway, Iceland and Lichtenstein. Readers may find that at times the terms EU and EEA are used almost interchangeably in this area of law. Rarely will anything turn on which term is used.
One of the main founding aims of the EU (and an associated aim of EEA) is to create one European wide interconnected economic area, and critical to achieving this is the free movement of persons within that economic area.
It would be an inevitable drag or limitation on achieving a more interconnected economic area, if a person from one member state was prevented, or hampered from moving from one member state to another to find work (as a worker or as a self employed person), because she was prevented by the country of her intended destination from bringing with her her family members, from whatever part of the wider world. Furthermore, exposing such a person to the vagaries of each member state’s domestic law would reduce the fluidity of movement around the economic area.
In 2004, with the passing of EU Directive 2004/38/EC, all nationals of a EU member state became, in addition to citizens of their own state, ‘Union citizens’. The Directive is known as the ‘Citizen’s Directive’ and it sets out, amongst other things, the basic rules of EU law regulating the admission into other member states of EU citizens’ family members who are not Union citizens themselves (sometimes called ‘third-country nationals’ or ‘non-EEA nationals’).
This Directive was transposed into UK domestic law by Immigration (European Economic Area) Regulations 20063 (hereinafter ‘EEA Regulations’). Of particular relevance for this paper, are regs. 2, 6, and 7.
Transposing the EU Directive into UK domestic law, the EEA Regulations required there to be a ‘Qualified person’ upon whom the non-EEA national is attempting to, so to speak, ‘piggy-back’ on the Union citizen rights of4. In the EEA Regulations, a ‘Qualified person’ is ‘a person who is an EEA national and in the United Kingdom as (a) a job seeker; (b) a worker; (c) a self-employed person; (d) a self-sufficient person; or (e) a student’. As an alternative to the ‘Qualified person’ residing in the UK, she may hold a permanent right of residence under reg.15.
Only those who are ‘family members’, as defined by reg.7, of the Qualified person can ‘piggy-back’ on that Union citizen’s rights. The list in reg.7 of those who are ‘family members’ includes, at reg 7.1, ‘his spouse or his civil partner’. However, reg. 2 reads, so far as is relevant:
‘’Spouse’ does not include- (a) a party to a marriage of convenience;’
‘‘Civil partner’ does not include – (a) a party to a civil partnership of convenience;’
The rational for this exclusion can be viewed as follows. To a large extent, people don’t choose their family, but certain family relationships are elective and selective, the most obvious being relationships created by marriage. With the ability to create qualifying relationships, comes the risk that some will attempt to manipulate that ability for illegitimate purposes. To counter this risk of fraud and/or abuse of EU rights, the Directive permits member states ‘to adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience’ (Art 35).
With that background, it may be helpful to try and illustrate the typical type of appeal, by presenting the typical factual scenario:
• EEA national (W) moves to UK
• W marries Non-EEA national (H)
• H seeks residence card in UK as spouse of W
• SSHD alleges marriage of convenience
The legal issue that arises, and the issue that the tribunal is hearing an appeal about, is whether the marriage is a one of convenience, or whether it is a genuine marriage. This is the critical distinction, and the determining factor as to which this particular marriage is, is the purpose for which the marriage was entered into. A marriage is a marriage of convenience if the sole or decisive purpose was to gain admission to the host member state (i.e. UK). That is, it was entered into without the intention of marital cohabitation.
It is important to note at this stage that the marriage is formally valid. The parties to the marriage went through the marriage ceremony and other formalities necessary to create a formally valid marriage. Furthermore, the parties did intend to enter into a valid marriage, so it is not a ‘sham’ marriage in the technical sense of that word. However, while the marriage of convenience will endure and subsist, unless and until it is brought to an end (by decree nisi/decree absolute or annulment) the applicant spouse will not qualify as a ‘spouse’ for the purposes of the EEA Regulations, and so no right of residence exists, to be confirmed by the issue of a residence card. In essence, the tainted purpose makes it ineligible for/disqualifies it from recognition as a marriage for the purposes of the EEA Regulations.
The spouse will make an application on Form EEA (FM) (from 31.1.15; formerly the application was on Form EEA2) and attach the required documentation to the application. The EU Directive limits the documents that can be required to accompany the application, in order to achieve a measure of uniformity of procedure across all member states. In the case of a spouse, the documents are his passport, his marriage certificate and evidence that his spouse is an EU national exercising Treaty rights.
Reason to suspect
The Immigration Officer (‘IO’) will consider the application and should grant the application unless there is reason to suspect that the underlying marriage is one of convenience. In technical legal parlance, there is an evidential burden on the SSHD. In other words, if there no reason to suspect is raised from the initial application and accompanying documents, then the application should be granted without further documents being requested or investigations undertaken. Of course, the applicant form contents need not be decisive if the IO is in possession of some intelligence or background data suggesting lies are being told. In those circumstances an investigation is both permissible and necessary.
Where reason to suspect does arise, the IO will undertake an investigation with a view to reaching a determination on the issue of whether the marriage is genuine or one of convenience. The investigation is principally a task of evidence accumulation, sourcing evidence which will help point either toward a genuine marriage or toward one of convenience.
• Separate interviews are arranged where the parties to a marriage are asked questions. Each will be asked the same questions and the answers will be compared to check for inconsistencies. A tally will be kept of consistent and inconsistent answers. Particular regard will be had to inconsistencies which are hard to explain as being likely instances of honest but mistaken recollection/ events being viewed from a different viewpoint or perspective. For instance, questions can be asked about how the parties first met, what gifts each have bought for the other, who their wedding guest were etc. While interviews can provide an opportunity for the parties to dispel any doubts which have arisen in the IO in respect to the application, they tend to be viewed as an opportunity for parties to be caught out by rigorous examining.
• Unannounced visits to the marital home. Inspections of the property may reveal that the parties are not living together. A lack of clothes in the wardrobe or pictures of the couple on display around the house may be used as evidence of a lack of marital cohabitation.
• Requests may be made for further documentary evidence from the applicant;
• Independent verification checks can be made to check the veracity of the evidence submitted;
While it may not feel like it to the applicant, it should be remembered that the investigative stage does provide a valuable opportunity for the applicant to address the SSHD’s suspicions.
Where the evidential burden is established by the SSHD, the burden of proof will shift to the applicant. The exact type of burden that shifts onto the applicant remains a legal issue still to be resolved, with the Court in Papajorgji v Entry Clearance Officer  Imm. A.R. 447 expressing its ‘reservations’ about the ratio in IS (Serbia) v Entry Clearance Officer  UKAIT 31 that the applicant must displace a legal burden. It is noteworthy that Papajorgji earlier preferred to describe it as an evidential burden on the SSHD, ‘shifting to the [applicant] in the light of the relevant information rather than a formal legal burden’. Whatever the exact type of burden on the applicant, the application will fail unless the applicant can displace it. The standard of proof is the balance of probabilities, ‘although proof of criminal acts such as fraud will be considered less likely on such a standard than of ordinary matters’
Factors that would indicate that there is unlikely to be an abuse of EU rights, are where:
• H would have no problem obtaining a right of residence in his own capacity or has already lawfully resided in W’s own Member State beforehand;
• The couple have been in a relationship for a long time;
• The couple have had a common domicile/household for a long time;
• The couple have already entered into a serious long-term legal/financial commitment with shared responsibilities (mortgage to buy a home, etc.);
• The marriage has lasted for a long time;
• The couple have children together.
Factors that indicate an increased likelihood of abuse of EU rights, are where:
• The couple didn’t ever met before their marriage;
• The couple are inconsistent about their respective personal details, about the circumstances of their first meeting, or about other important personal information concerning them;
• The couple do not speak a language understood by both;
• There is evidence of a sum of money or gifts handed over in order for the marriage to be contracted (with the exception of money or gifts given in the form of a dowry in cultures where this is common practice);
• The past history of one or both of the spouses contains evidence of previous marriages of convenience or other forms of abuse and fraud to acquire a right of residence;
• Family life has developed only after an expulsion order was adopted;
• The couple divorces shortly after H has acquired a right of residence.
A decision to refuse to issue a residence card on the basis that the marriage is a marriage of convenience is an appealable decision, subject to regs. 25-29. Typically a barrister or other advocate will present the applicant’s appeal, calling the applicant and then his spouse to give oral evidence before the Tribunal. Inevitably the parties to the marriage will be cross-examined about inconsistent answers given in interview and adverse observations made during the unannounced visit. Typically, there will be a further, fresh set of questions asked of each, and a comparison made of the answers. Insignificant inconsistencies may simply be a symptom of an honest witness attempting to be accurate, and so be excusable. Persistent and/or perverse inconsistencies and evasive answers may be seen in the opposite light. Relatives and friends might be called to attest to the enduring and subsisting nature of the relationship. Holiday and domestic life photographs are also usually provided for the Tribunal to consider. Judgments determining such appeals are handed down 2 – 3 weeks after the hearing.
Development of Real Relationship after the Marriage
Obiter comments in IS (Serbia) indicate that the crucial time for determining the status of the marriage is the date of the marriage ceremony. A marriage of convenience, once created, cannot be converted after the marriage into a genuine marriage for the purposes of the EEA Regulations. Its status at the inception of the marriage is immutable thereafter.
The Residence Card
Where the application is granted, or appeal allowed, the applicant spouse will be issued with a residence card under reg.175 as proof of his right of residence in the UK as at the date of issue. Possession of a residence card exempts that person from the need to hold a visa to enter the UK. By reg.11, the UK must admit into the UK any family member producing a valid passport and a residence card.
The SSHD can revoke an issued residence card or refuse to renew it at any time. Logically, for the SSHD to reach a new view that the marriage was, from inception, one of convenience, new evidence would have to come to light that significantly calls into question the genuineness of the parties at the time of the marriage.
Merits of the Appeal
Many appeals are successful in this area of law. In the current climate, the SSHD seems to be quick to determine that the marriage is one of convenience, and the Tribunals are equally robust in overturning many of the decisions that come before it. If the applicant believes the SSHD’s decision is wrong, then an appeal will very often be worth running. A well-prepared appeal, with a competent and experienced barrister presenting it, should stand a good chance of success. It hardly needs saying but a successful appeal will make a very significant difference to the likely future life of the couple. Arguments can be run about the procedure, process and manner of the interview, the significance of the inconsistencies and the context within which they should be viewed, the adverse observations during an unannounced visit can be explained and investigative flaws exposed. Further, the oral evidence stage before the Tribunal can also provide a platform for demonstrating the genuineness of the marriage to the Tribunal judge.
Beyond the Scope of this Article
It is never possible to cover all aspects of a particular topic in one paper. Readers are advised to consider: (1) the ‘Surinder Singh’ line of authorities on non-EEA national spouses claiming through a British citizen who has worked or been self-employed in another EEA member state; and (2) permanent rights of residence and retained rights of residence.
SIMON HILL © 2015
33 BEDFORD ROW
NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.
1 SI 2006/1003
2 Readers who have a Immigration Rules ‘subsisting marriage’ issue – a real matrimonial relationship as opposed to the merely formal one of a marriage issue – are directed to Goudey (subsisting marriage – evidence) Sudan  UKUT 00041 (IAC) and Naz (subsisting marriage – standard of proof) Pakistan  UKUT 00040 (IAC)
3 The EEA Regulations have since been amended by SI 2009/117 and SI 2011/1247.
4 Strictly speaking, there need only be a EEA National who is a ‘Qualified person’ after the first 3 months in the UK. Reg.13 provides that an EEA national is entitled to reside in the UK for an initial period not exceeding 3 months and the family member of that person may too. After 3 months, the EEA national must become a ‘Qualified person’ otherwise he will not be exercising EU Treaty rights upon which a family member can ‘piggy-back’.
5 The full name of the residence card is “Residence card of a family member of an EEA national”