Success in the Supreme Court

We are pleased to announce that we have recently had success in the Supreme Court in the case of Sadvoska and another v Secretary of State for the Home Department. This was the very first case to be heard by the Supreme Court’s sitting in Scotland as detailed in this link https://www.pressreader.com/uk/the-scotsman/20170613/281840053649703.

We represented one of the appellants a Pakistani national who lived in Scotland with his Polish partner.The couple are in a long term relationship and decided that they wished to marry.  Unfortunately, on the day of their wedding, immigration officials prevented the couple from marrying. Both were interviewed separately by Immigration Officers and thereafter detained in Immigration detention. They were issued with paperwork from the Home Office stating that they were liable to be removed from the United Kingdom.  The Home Office asserted that they had reasonable grounds to suspect that the marriage was a marriage of convenience (meaning that sole reason for the marriage was to obtain an immigration advantage). 

We appealed the decision of the Home Office to the Immigration Tribunal. At this appeal, the Immigration Judge decided that it was for the couple to prove that their intended marriage was not a marriage of convenience. The Judge decided that the couple had not done this based on the evidence that was heard.  We had argued that the burden was, in fact, on the Home Office to prove the marriage was one of convenience. We appealed this decision to the Upper Tribunal but, again, the appeal was refused. The appeals were then heard before the Inner House of the Court of Session.  We were unsuccessful before the Inner House and appealed to the Supreme Court. This was one of the very few cases where the Supreme Court granted permission to appeal. 

Following a one day hearing in Edinburgh, the Supreme Court has now issued its judgment with Lady Hale (who has since been appointed the President of the Supreme Court) giving the leading judgment. 

All of the Judges who heard the appeal found in the appellants’ favour and allowed the appeal. The Supreme Court found that the Immigration Judge at the Tribunal had not approached the cases in the right way. The Court agreed with our arguments that the burden of proof is on the Secretary of State for the Home Department when arguing that a proposed marriage is a marriage of convenience. The couple’s case will now be sent back to an Immigration Judge at the First Tier Tribunal for a new decision to be made. 

The judgment of the Supreme Court is very important, especially in the current hostile environment for migrants.  In this case, the Polish national was residing lawfully in the UK and, once married, her partner would have had an automatic right to live in the UK with his wife under European law.  However, the couple were prevented from being able to marry. The action of the Home Office had potentially serious consequences for both who faced removal from the UK.

The solicitor dealing with the case was Anna Awchy of our Edinburgh team.

If you are a EEA national, or a partner of a EEA national from outside the EU, considering making an application to the Home Office on the basis of your relationship or considering getting married then it is very important that you seek specialist immigration advice.