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12 februari 2012

Schijnhuwelijk tegengeworpen aan echtgenote van een EU onderdaan (UK Upper Tribunal uitspraak)

In deze zaak, Papajorgji (EEA spouse – marriage of convenience) Greece [2012] UKUT 00038(IAC) wil een Albanese vrouw met haar Griekse man naar het Verenigd Koninkrijk reizen. Engeland is geen lid van Schengen. Haar visum werd geweigerd omdat het zou gaan om een schijnhuwelijk. 
In tegenstelling tot Nederlandse uitspraken die vaak heel stijf en neutraal klinken doet deze uitspraak me aan de serie over Judge John Deed denken. Zo nu en dan zie je het sarcasme en de afkeuring er echt afdruipen. Je merkt dat de rechter zich zit af te vragen hoe je in hemelsnaam een huwelijk van 12 jaar waarbinnen kinderen zijn geboren als schijnhuwelijk kan bestempelen. Let ook op de stevige omschrijvingen over EU-rechten waar niet aan te tornen valt.

De rechter overweegt als volgt:

18.       We entirely agree with the AIT in IS that EU law permits states to take measures against marriages of convenience; that such marriages are regarded as a form of abuse and fraud, and that the Council Resolution suggests that where there is reason to suspect a marriage of convenience a visa need not be granted but the matter proceeds to investigation and a conclusion reached.  A reason to suspect a marriage of convenience would be part of the objective evidence in the case to which Tum and Dari refers.

19.        The important point note however, is that there must be reason to suspect a marriage of convenience before the application can be suspended pending further investigation. We emphasise this  important passage of the AIT’s reasoning:

“Not every applicant needs to prove that his marriage is not one of convenience. The need to do so only arises where there are factors which support suspicions for believing the marriage is one of convenience.  Translated into the technical language of the English law of procedure and evidence, that means that there is an evidential burden on the respondent.  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.” 

20.       This passage indicates that the AIT concluded that there was no burden on an applicant in an EU case until the respondent raised the issue by evidence. If there was such evidence it was for the applicant to produce evidence to address the suspicions. In our judgment such an approach can be described as one of an evidential burden in the first place on the respondent and then shifting to the claimant in the light of the relevant information rather than a formal legal burden. We agree with that approach.

21.       The impression we have obtained from various parts of the ECO’s original reasons for the decision is that the ECO has applied a general policy of requiring applicants to prove that their marriage is not one of convenience, and in this context treats EEA applications in the same way as ordinary immigration applications under the Rules. The ECO’s reliance on DR (ECO: post-decision evidence) Morocco * at least suggests this. That was an immigration case concerned with the Immigration Rules rather than a free movement case under EU law. The AIT (Ouseley J presiding) concluded that, whereas s.85 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), as it was then drafted, precluded evidence of post-decision facts, it did not prevent the admission of further evidence to establish what the true picture was at the time of the decision, and neither did it prevent post-decision evidence adduced to demonstrate the reliability of an assessment of future intentions. 

22.       However, the AIT in IS concluded at [25] that an EEA case is outwith the exclusionary scope of s.85(5) as the family permit is not an ordinary entry clearance within the meaning of s.82 and s.85 of the 2002 Act[1].  In any event evidence to rebut an allegation of marriage of convenience is admissible under s.85 for the reasons given in DR (Morocco)*. Further the scope of an appeal in an EEA case needs to reflect the procedural safeguards referred to in Article 35 of the Citizens Directive rather than national law restrictions on the evidence to be admitted.  We have received and noted the further evidence submitted by the claimant in July 2011. We would emphasise that EEA rights of entry are not exercises of discretion generally afforded to Member States to formulate rules for the admissions of aliens, but the exercise of Treaty rights to be recognised by states subject to the substantive and procedural provisions for preventing abuse and fraud.

23.       We asked Mr Hopkin whether there were any factors which would support such a suspicion in the present case. He could not point to any, and recognised that there were none. The consequence is that the application should have been granted when received and did not require further investigation.

24.       What the ECO seems to have done is to reason as follows:-

25.       IS establishes that the burden is on the claimant to show that the marriage was not one of convenience.

i)  She did not produce any evidence as to the quality of the marriage such as photographs, letters etc, when she could have done so to discharge the burden; 
ii)                   The failure to produce such evidence justifies refusal because the burden has not been discharged, and /or is the source of reasonable suspicion

26.       The Entry Clearance Manager appears to have agreed this implicit line of reasoning as she endorsed the decision. In our judgment each step in the reasoning was flawed.

27.       First, there is no burden on the claimant in an application for a family permit to establish that she was not 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.

28.       Second, a suspicion cannot arise by the claimant’s failure to produce photographs and the like.  The application form did not ask for such material to be submitted. So far as our own researches and those of Mr Hopkin are concerned neither did the published guidance note. If the ECO Nicosia has been publishing local guidance to applicants, we have not seen it, and cannot therefore comment on its contents. It is elementary that to draw an inference from the absence of something that was not asked for is wholly unfair and perverse. Even if there was local guidance that did ask all spouses for such material to be produced in every case, it would be inconsistent with the application form itself, and in our judgment would also be contrary to the provisions of the Citizens Directive. The documents that can be insisted on are set out in Article 10, and the claimant produced them. Other documents only become relevant if there is a case for an investigation. National authorities cannot set up their own general criteria for documents to support a claim for family membership in EU law. To do so would risk distorting the application of the Directive throughout the European Union.

29.       Third, in any event, in this case by answering the questions in the form the claimant had produced the evidence that the marriage was a genuine one and could not be considered to be a marriage of convenience. As the Judge noted:

i)           The marriage had not been contracted shortly before and for the purpose of entry to the UK, it had lasted some 12 years at the date of decision.
ii)         The application form revealed that both husband and wife lived at the same address and shared a common telephone number as well as incidentally informing the diligent reader that there were children of the marriage.
iii)       The claimant was not coming for an indefinite stay but a visit.

30.       Although neither the Directive nor the Regulations define it, as a matter of ordinary parlance and the past experience of the UK’s Immigration Rules and case law, a marriage of convenience in this context is a marriage contracted for the sole or decisive purpose of gaining admission to the host state. A durable marriage with children and co-habitation is quite inconsistent with such a definition.

31.       These points are so obvious that we are dismayed that the Entry Clearance Manager approved the flawed decision in this case and that there was an appeal from the First-tier Judge’s decision. Although he quoted the wrong case, he got the basic principle right.  Of course, the application form need not be decisive if the ECO is in possession of some intelligence or background data suggesting lies are being told. In those circumstances an investigation is both permissible and necessary and would almost certainly involve an interview with one or both parties to the marriage for an opportunity to be given for doubts to be dispelled. But that is not this case. The ECO did not challenge the claimant’s answers to the questions in the form. If there had been any doubt about them, a telephone call to the landline and mobile number given in the form as a point of contact might well have resolved it.

32.       The visa should be issued promptly on application unless the ECO has reasonable grounds to suspect a marriage of convenience. The evidential onus of showing there are such reasonable grounds in the first place rests on the decision maker. It is a matter of regret that the claimant has had to wait 18 months to obtain her visa and has only done so now by way of appeal and considerable expenditure of public time and resources. There have been three hearings and a number of case management decisions.  On the face of the information in the application form a belief that this was a marriage of convenience is simply ludicrous. There was simply no material to justify suspicion or an investigation.

Further observations on the burden of proof

33.       We have already expressed our agreement with the AIT in IS that a failure on the claimant to participate in the investigation and contribute information to dispel the reasonable suspicion may lead to a lawful refusal of the application. If the AIT was intending to go further than this and decide 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, we would have reservations about such an approach and the whole issue will need further examination in a future case where the nature of the dispute requires it to be decided.  In our judgment the first two reasons given for the AIT for its conclusion are unpersuasive of such a proposition and the third reason does not lead to such a conclusion.

34.       The first reason the AIT gave for the burden of disproving a marriage of convenience being on the claimant was that it fell on the claimant to establish that she was a family member.  We agree that the claimant must establish that she is a family member; but in the ordinary case she does this by producing the basic documents set out in the Directive.  Where there is no reason to suspect that the claim is fraudulent, or the marriage one of convenience, that is conclusive of the matter. Regulation 12 of the Immigration (EEA) Regulations 2006 does not in terms require the claimant to prove a negative. She must prove that she is married, but that marriage will not avail if it turns out to be one of convenience.

35.       The second reason given was rule 53 of the Asylum and Immigration Tribunal (Procedure) Rules 2005. This provision does not appear to us to be relevant. It places the burden of proof on someone who claims an exemption from an immigration decision by reason of status, usually British nationality. That has no purchase here. The claimant is not claiming an exemption, she seeks the issue of the document that proves her right of admission because she is a family member and there is no reason to suspect fraud.

36.       It is clear that the justification for exclusion of marriages of convenience from those otherwise entitled to a residence document under the Directive is to be found in the EU law principle of fraud or abuse of rights. That very much suggests that in any dispute on appeal as to the nature of the marriage, it would in the last instance be for the respondent to satisfy the judge of the factual basis of the personal conduct of the claimant relied on to exclude her from the entitlement.  Thus if the respondent were to allege that the claimant were a spy or a drug runner or involved in other conduct detrimental to public policy, on the ordinary principle that he who alleges must substantiate, it would fall on the respondent to make that suggestion good, although the Judge would be alive to the difficulties of proof (see the recent decision by SIAC in SC/103/2010 Ekaterina Zatuliveter v SSHD, 29 November 2011.)  

37.       It is not enough that the ECO honestly suspects there is a marriage of convenience; the claimant will only be disqualified if it is established that it is.  Adverse inferences may be drawn by a claimant’s failure to provide data reasonably open to her in the course of the investigation or appeal; but that cannot form the sole or decisive reason for the conclusion.  We observe that the guidance of the European Commission issued in respect of the Citizens Directive  COM 2009 313 2 July 2009 is explicit in placing the burden of proof on the state and invites the state to set out indicative criteria for and against the proposition that the marriage is one  of convenience. We reproduce what we consider to be the material part of that guidance at Appendix A to this determination. We consider this guidance is likely to prove helpful for Judges who have to decide such questions in the future although it is not binding as a piece of EU legislation.

38.       Finally, at paragraph 15, the AIT thought that any burden on the respondent would have been a high one, to the criminal standard. It is now established that in civil proceedings, there is only one civil standard, although proof of criminal acts such as fraud will be considered less likely on such a standard than of ordinary matters. See: In Re B (Children) [2008] UKHL 35.


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?’.

40.       In our judgment this case from first to last never had any appearance remotely suggesting that the marriage was one of convenience. The decision was flawed and not in accordance with the law. The First-tier Judge reached the right result on the evidence before him.

41.       The Entry Clearance Officer’s appeal is accordingly dismissed. We direct that the family permit be issued promptly on receipt of this determination as it should have been eighteen months ago."


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