The High Court has handed down judgement in R (on the application of Molina) v Secretary of State for the Home Department [2017] EWHC 1730, a case which examined whether a marriage of convenience can be entered into by two people who are already in a relationship.
Background
The case concerned a Bolivian national who was prevented from entering into a marriage with an Italian national on the basis that although the marriage was not a sham, it was perceived to be a marriage of convenience.
The Bolivian national was subsequently detained and directions were set for his removal from the UK. An application for Judicial Review was then made.
The outcome
The Court ruled that a marriage of convenience might exist, despite the fact that there was a genuine relationship and in the absence of any deception or fraud, where the sole intention and purpose of the marriage was to gain an immigration advantage.
The Court therefore found that the decision to prevent the marriage and detain the individual in this case was lawful.
The Supreme Court
In a subsequent unanimous ruling, the Supreme Court also considered marriages of convenience. In the case of Sadovska and another (Appellants) v Secretary of State for the Home Department (Respondent) (Scotland) [2017] UKSC 54, the Supreme Court confirmed that the burden of proof in establishing a marriage of convenience lies with the Home Office.
The case concerned a Lithuanian national and a Pakistani national. The Lithuanian national had permanent residence in the UK, and the Pakistani national was an overstayer.
Both individuals were detained on the day their wedding was due to take place, the Pakistani national being issued with a notice making him liable for removal as an overstayer. The Lithuanian national was also issued with a notice making her liable for removal for attempting to enter into a marriage of convenience.
The appellants’ appeals prior to the Supreme Court were all dismissed. However, the Supreme Court allowed the appeals taking into consideration the burden of proof applied by the First-tier Tribunal. The First-tier Tribunal had placed the burden of proof on the appellant, when it is on the Home Office to establish a marriage of convenience.
A re-hearing by the First-tier Tribunal will now take place.
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