Government Must Prove its Case to Obtain Deportation

Marriages of convenience are normally entered into in order to give one of the spouses the right to remain in the UK. At present, EU citizens normally have the right to remain in the UK. However, that right can be removed if it is shown that it has been exercised abusively – such as by entering into a marriage of convenience.

In these circumstances, the deportation of both parties is the normal response.

The main issue in such cases is whether the marriage was in fact a marriage of convenience, and a recent case in the Supreme Court dealt with the burden of proof that this is so.

It involved a Pakistani ex-student who had overstayed his student visa and who sought to gain the right to remain in the UK as he was planning to marry a Lithuanian woman. They were separately interviewed by Home Office officials, who subsequently served both of them with notices that they were liable to removal from the UK, in his case for overstaying on a temporary visa and in her case for attempting to enter into a marriage of convenience.

The appeals launched by the couple were regarding the burden of proof required, as the charge is effectively one of fraud. They argued that the officials had failed to look at the totality of the evidence regarding their relationship and had wrongly placed the burden of proof on them to show that they were not entering into a marriage of convenience. They contended that it was not up to them to show that they have a 'genuine and lasting' relationship but for the Home Office to show that they do not.

The Court agreed, but sent the case back to the First-tier Tribunal for a full rehearing.

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