Married spouse visa applicants’ burden of proof

The Upper Tribunal has clarified what the burden of proof is for people trying to show they are married when applying for a spouse visa or EEA family permit. The ruling has clarified that there is no presumption that a marriage is not genuine; for that suspicion to arise there must be some evidence. When applying for an EEA Family Permit people do not need to show letters and photographs to prove their marriage is not one of convenience.

Papajorgi

The Facts

Mrs Papajorgi is an Albanian national, married to a Greek national. The Papajorgis got married in 1996. And they have two children.

In 2010 she wanted to go with her husband on a trip to the UK between August and September. She filled in the required forms – answering 115 questions – and sent in the following documents:

• marriage certificate;
• passport;
• evidence of her husband’s nationality;
• evidence he was going on the visit too.

She was refused entry to the UK. The Entry Clearance Officer said:

I consider this to be a marriage of convenience because apart from your Greek marriage certificate and a copy of your husband’s Greek passport you have not provided any documentary evidence of your marriage, such as photographs of your wedding or your life together or agreements in joint names such as a bank account or a tenancy agreement. …I have refused your EEA family permit application on this occasion.

This is despite the fact that it was evident from her application form that she had been married for twelve years, with two children, and the family all lived in the same household. She appealed to the First Tier Tribunal.

The refusal decision was reiterated by the Entry Clearance Officer:

the appellant has still failed to provide evidence to satisfy me that the marriage is not a marriage of convenience.

This is a shocking statement. Why should a border official presume marriages to be “of convenience” in the absence of proof to the contrary? It goes against common sense and natural justice. Long term marriages with children where the couple co-habit are palpably not marriages of convenience. Demanding ocular proof to substantiate that is authoritarian officialism.

It is amazing that the Entry Clearance Officer wrote, “apart from your Greek marriage certificate … you have not provided any documentary evidence of your marriage”.

The Law

The judgement is clear – marriages of convenience are “a form of abuse and fraud”, and the government is permitted under EU law to take action against them. The relevant EU directive says that documents allowing entry should not be issued if there are  “factors which support suspicions for believing that the marriage is one of convenience”.

The Upper Tribunal pointed out that this means there is not an automatic suspicion that marriages are not genuine; but once there is grounds for that suspicion it needs to be disproved. It operates much like the presumption of innocence; but this is a presumption that marriages are genuine.

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.

The ECO’s flawed reasoning

The judge pointed out that the ECO “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.”

1. He mistakenly took the case of IS to mean that there was a burden of proof on claimants to show their marriages are not of convenience.
2. Then Mrs Papajorgi did not show evidence about the quality of her marriages: letters, photos, etc.
3. That lack of evidence either: does not discharge the burden of proof; or, gives cause for reasonable suspicion.

Of course, this is a non sequitur. Even if we accept his reading of IS, which the judge does not, the assumption that not supplying evidence of something creates a suspicion that it is not genuine is circular: at no point was she asked for the evidence.

It’s rather like the old joke about the presumption of innocence. When, during examination, the suspect says he is innocent the barrister smiles and says, “Ah, but that’s exactly what you’d expect someone who was guilty to say.”

The judge made three points about this:

1. 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.
2. a suspicion cannot arise by the claimant’s failure to produce photographs and the like.
3. 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.

The third point is the most interesting. In the First Tier Tribunal it was noted that the marriage had lasted for twelve years, there were children, the couple shared an address and a phone line, and the application was for a visit, not an indefinite stay.

So unimpressed with the ECO’s decision was he that the judge said:

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 … 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.

Two other cases gave similar judgements at the same time. As the excellent Free Movement blog says, the benefit of the decision is ”restoring some common sense and propriety to the judicial evaluation of other people’s relationships.”