Pakistani man refused residence in UK over ‘sham marriage’ wins appeal

Lord Menzies
Lord Menzies
A Pakistani man married to a Polish citizen whose application for residence in the United Kingdom was refused on the basis that the marriage was a “sham” has successfully appealed to have his case reconsidered.
The Inner House of the Court of Session upheld the appellant’s argument that the First-tier Tribunal applied the “wrong onus of proof” by proceeding on the basis that it was for him to prove that the marriage was not a sham, rather than on the respondent to show that it was.
‘Sham marriage’
Lord MenziesLady Clark of Calton and Lord Glennie heard that the appellant Usman Asim, 34, applied for residence in the UK in May 2015 under the Immigration (EEA) Regulations based on his relationship with Sylwia Gierosz, 27. 
The Home Secretary refused the application for reasons set out in a letter issued in October 2015 on the basis that the relationship was a sham and that the subsequent marriage was one of “convenience”.
The appellant appealed against that decision to the First-tier Tribunal, but his appeal was refused, as was a further appeal to the Upper Tribunal, which later refused leave to appeal to the Court of Session.
However, having subsequently been granted leave to appeal by the court, the appellant argued that the Upper Tribunal “erred in law” in concluding that the First-tier Tribunal’s determination was itself free from material error in law in two respects: namely that the FTT applied the “wrong onus of proof”; and that the FTT’s decision was “irrational”.  
Burden of proof
With regard to onus of proof counsel for the appellant drew attention in particular to three passages in the determination of the FTT, in which it was stated that in EEA immigration appeals the burden of proof is on the appellant and the standard of proof required is a balance of probabilities; that there were “significant question marks” about this being a genuine marriage; and that the appellant had not discharged the burden of proof upon him.
This, it was submitted, was “plainly an error of law” in light of the judgment of the UK Supreme Court in Sadovska v Secretary of State for the Home Department 2018 SC (UKSC) 38, in which the court stated that where an appellant who has no established rights either in EU law or non-EU immigration law can produce evidence that he has a “durable relationship”, it is for the respondent to justify any refusal of entry or residence in such cases.
But on behalf of the respondent it was argued that, when read as a whole, the decision of the FTT disclosed “no material error in law”. 
There was enough evidence before the FTT to entitle it to “infer collusion” and that “internal inconsistencies” in the evidence of the appellant and the sponsor were sufficient to enable “adverse inferences” to be drawn.
It was also submitted that the FTT’s approach expressly and in substance recognised that the onus was on the respondent.   
‘Error of law’
However, the judges allowed the appeal after ruling that the FTT’s decision was based on an “error of law” and that its conclusion was “irrational”.
Delivering the opinion of the court, Lord Menzies said: “Looking at the decision of the FTT as a whole, we cannot reach the conclusion that the FTT recognised that the onus rested on the respondent to establish that this was a sham marriage. On the contrary, it appears to us to be clear that the FTT proceeded on the basis that the burden of proof rested on the appellant.
“The FTT judge observed that there are significant question marks about this being a genuine marriage but she appears to have held these questions marks against the appellant. We consider that the FTT fell into error of law in this respect and that this error cannot be regarded as other than material. In holding otherwise the Upper Tribunal itself fell into error of law. For this reason this appeal must succeed.”
With regard to rationality, the judges also said they were persuaded by the submissions made by counsel for the appellant, who had argued that the errors of reasoning by the FTT “robbed its decision of logic”.
Lord Menzies added: “In light of our decision on the first issue, we do not consider that it is appropriate for us to set out in detail the submissions and our conclusions on the issue of rationality as this matter will require to be remitted to a differently constituted First-tier Tribunal.
“Suffice it to say that we are not persuaded that the FTT was entitled to draw the adverse inferences about the credibility of the appellant which it drew on the basis of the answers given by the appellant and the sponsor…
“In the whole circumstances the decisions of the Upper Tribunal and the First-tier Tribunal will be set aside and the matter remitted to a differently constituted First-tier Tribunal to consider the matter afresh.”  

© Scottish Legal News Ltd 2020

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