Sham marriages, marriages of convenience and the burden of proof
The effectiveness of freedom of movement for EEA nationals depends on the right of their partners to reside with them. However, their ability to exercise this right may be obstructed by the increasingly enthusiastic efforts of the Home Office to prevent abuse by non-genuine couples entering into ‘sham marriages’. Two recent cases provide guidance on the meaning of sham marriages, marriages of convenience and who bears the burden of proof.
Molina, R (On the Application Of) v The Secretary of State for the Home Department  EWHC 1730 (Admin) (12 July 2017))
In this case, the High Court considered whether there was a difference between a ‘sham marriage’ and a ‘marriage of convenience’.
Mr Molina, a Bolivian national who entered the UK illegally in 2007, commenced a relationship with an Italian national in October 2013, and moved in with her in September 2014. They were to be married on 19 May 2015 but immigration officers attended the Registry Office and interviewed them. Mr Molina was then served with a notice which stated:
‘…although there is a relationship going on it does not show that they have a relationship akin to marriage.[The claimant] will benefit from his union with [Ms Salguero] and even though this may not be a sham marriage it is definitely a marriage of convenience to gain Immigration advantage’.
Mr Molina challenged decisions to prevent his marriage, detain him and to set removal directions by way of judicial review. He argued that a ‘sham marriage’ was synonymous to a ‘marriage of convenience’ and that as his relationship had been found to be genuine, his attempted marriage could not have been one of convenience.
Deputy Judge Grubb considered the statutory definition of ‘sham marriage’ in section 24(5) of the Immigration Act 1999, which requires:
- The absence of a genuine relationship
- One or both parties to enter into the marriage to avoid immigration law or or the Immigration Rules and/or to obtain a right conferred by law or those Rules to reside in the UK
- One or both parties to be a citizen of a country other than the UK, an EEA state or Switzerland.
He then considered the definitions of ‘marriage of convenience’ in the EEA Regulations 2016 and the definition in Article 1 of Council Resolution 12337/97’, which refers to ‘a marriage concluded…with the sole aim of circumventing the rules on entry and residence of third-country nationals and obtaining…a residence permit or authority to reside’. The latter definition had been applied by the House of Lords (R (Baiai) v SSHD  1 AC 287) and Court of Appeal (Rosa v SSHD  EWCA Civ 14).
He concluded that a ‘sham marriage’ can only be established if there is no genuine relationship between the parties; whereas the ‘hallmark of a marriage of convenience is one that has been entered into… for the purpose of gaining an immigration advantage’ [para. 64]. This means that a ‘marriage of convenience’ may exist where there is a genuine relationship, if the sole aim of at least one of the parties is to gain an immigration advantage [para. 73].
Sadovska & Anor v Secretary of State for the Home Department (Scotland)  UKSC 54 (26 July 2017)