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On appeal from [2016] CSIH 51

This appeal considered whether the Inner House erred in failing to hold that, in cases where the respondent intervenes to stop an alleged marriage of convenience and makes a removal order on that basis, the evidential burden of proof rests with the respondent and requires to be discharged on the balance of probabilities.

The Supreme Court unanimously allowed the appeal, remitting the case for a full re-hearing by the First-Tier Tribunal. The Court held that it is important to identify the different rights each appellant individually enjoyed. Thus the lower court had first to determine whether the relationship fell within the definition of a marriage of convenience, and then consider whether, if it did, for Ms Sadovska that this abuse of her right of residence justified her removal rather than just the prevention of the marriage, and for Mr Malik that this was a reason to deny his entry. To determine the initial criterion, the Supreme Court held that the burden of proof of establishing that the proposed marriage is one of convenience falls on the Secretary of State. As this had not been the approach taken in the lower court the Supreme Court considered it necessary to remit the hearing, as the Court could not conclude that, had the correct approach been taken, the outcome would have inevitably been the same.

For judgment, please download: [2017] UKSC 54
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (12 Jun 2017 morning session) (12 Jun 2017 afternoon session)