In the reported case of Saeed (Deception – knowledge – marriage of convenience) [2022] UKUT 00018 (IAC), the Upper Tribunal clarified the distinction between a “sham marriage” and a “marriage of convenience”. The background and findings of the case are set out below:
Case overview
The Appellant in these proceedings, Mr Saeed, a Pakistani national, entered the UK as a student in 2008. He held valid leave until 2015. In 2014, the Secretary of State found that the Appellant had submitted a fraudulent English language certificate in support of an application for further leave to remain. That application was therefore refused which meant that the Appellant no longer had valid leave to remain in the UK and so was required to return to Pakistan.
Mr. Saeed challenged this decision through Judicial Review proceedings. Judicial review is the process whereby, the High Court or Upper Tribunal reviews the lawfulness of a decision, action, or failure to act of a public body or government department.
Whilst Judicial Review was pending, in October 2016, Mr Saeed applied for an EEA residence permit as the unmarried partner of an EEA national. This application was refused, and Mr Saeed exercised his right of appeal. Whilst the appeal was pending, Mr Saeed married his partner in 2017.
The First-tier tribunal, whilst considering the grounds of his appeal also considered the validity of his English language certificate. The Tribunal found that the Appellant had not submitted a fraudulent language certificate, but ruled that this marriage was one of convenience, and was therefore not genuine. The application for an EEA residence card was therefore refused.
Judicial Review proceedings escalated to the Court of Appeal in February 2020. During this appeal, the Home Office accepted the findings of the First-tier tribunal and re-instated the Appellant’s 2014 leave to remain. This then allowed the Appellant to submit an indefinite leave to remain application based on 10 years long residence. The application for settlement was refused.
The Secretary of State ruled that as the Appellant’s application for an EEA residence card was refused on the basis that he was in a marriage of convenience; he had been dishonest by submitting false representations.
Mr Saeed appealed this decision which was dismissed by the First-tier tribunal. The matter proceeded to the Upper Tribunal.
Sham marriage v marriage of convenience
The Appellant argued that the First-tier judge had made an error in his judgement by not distinguishing between a sham marriage and a marriage of convenience.
The Upper Tribunal clarified this point.
A sham marriage is defined in section 24 (5) of the Immigration and Asylum Act 1999, which states the following:
A marriage (whether or not it is void) is a “sham marriage” if—
- either, or both, of the parties to the marriage is not a relevant national,
- there is no genuine relationship between the parties to the marriage, and
- either, or both, of the parties to the marriage enter into the marriage for one or more of these purposes—
- avoiding the effect of one or more provisions of United Kingdom immigration law or the immigration rules;
- enabling a party to the marriage to obtain a right conferred by that law or those rules to reside in the United Kingdom
A marriage of convenience is defined as one that is entered into for the purpose of circumventing immigration laws. Therefore, a genuine relationship may still be considered fraudulent depending upon the purpose as to why the marriage was entered into.
A marriage of convenience would also be considered a sham marriage, but a sham marriage will not always be a marriage of convenience.
The key distinguishing element is therefore whether there is evidence of a genuine relationship.
How to prove a genuine relationship
In this particular case, factors which the First-tier Tribunal judge picked up on as pertinent factors that swayed their decision included the following:
- that there was little evidence of joint spending
- the couple had not spoken about their religious beliefs
- the Appellant had not spoken to his wife’s mother on the phone
- and that whilst pending the outcome of the appeal, the couple had opposing views about whether the Appellant’s wife would return to Pakistan with him or not.
Whilst evidence will vary depending on each case, the above indicates a clear premise that the Home Office and the Tribunals need to be satisfied that couples are living as a collective as opposed to two separate individuals who are simply cohabiting.