When is a marriage a sham marriage in an immigration context?

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So, the perennial question is – how does one define a sham? I will address it in a (hybrid) reverse chronological fashion.

Insofar as answering the question of “is it / was it a sham”, you ought to have a read of the most riveting judgment of the High Court in the case of JSC Mezhdunarodniy Promyshlenniy Bank & Anor v Pugachev & Ors [2017] EWHC 2426 (Ch), which is a Chancery/trusts case and has a degree of prominence to it – the junior counsel appearing for the Claimant bank also happens to be a classmate of mine from Shrewsbury (otherwise referred to as a “fellow Salopian”) and appeared for the Claimants in a handful of other similar cases, including the PrivatBank/Kolomoisky litigation.

For those that may not necessarily be familiar with the political/oligarchical canvas of the former USSR, Sergei Pugachev is among other things:

  1. A former Senator in the Russian Senate
  2. Former Chairman of the Claimant Bank
  3. One of the richest oligarchs not only within the space of the former USSR, but perhaps in the world – his holdings are rumoured to run into some USD 20 – 30 billion

Some media outlets described him as “Kremlin’s favourite bagman” and this was seemingly the case up until 2011, when he upped sticks and moved to France (as a French (dual) citizen) and the UK following a falling out with Kremlin’s top echelons and an ensuing criminal investigation (mandatory Interpol wanted notice coming as standard, of course) on the allegation of embezzling a few billion USD from the Claimant Bank. The contention was that the trusts that Mr Pugachev set up for his family through various NZ and Delaware vehicle were “sham trusts”.

Mr Justice Birss, in delivering the judgment in Pugachev, noted at paragraph 150 of the judgment quite helpfully as following:

“However I was referred to the full and clear analysis of all these authorities up to 2007 which Munby J conducted in A v A [2007] EWHC 99 (Fam) at paragraphs 32 to 54, including extracts of the relevant passages. The judge deals with Midland Bank v Wyatt [1997] 1 BCLC 242 and later cases on the same point, including the Jersey decision in Re Esteem (also known as Re Abacus (CI) Ltd (Trustee of the Esteem Settlement) 6 ITELR 368 [2003] JRC 092 (above)). I respectively agree with Munby J’s analysis and will adopt it. I highlight the following points from A v A simply because they have particular relevance in this case:

  1. i) A finding of sham requires careful analysis of the facts. External evidence is relevant. The fact that an arrangement is artificial is not the same as saying it is a sham. The fact that parties subsequently depart from an agreement does not necessarily mean they never intended the agreement to be effective. (para 33, all these matters derive from Hitch v Stone[2001] STC 214);
  2. ii) The unilateral intentions of the settlor are not enough to establish a sham (para 34-40);

iii) For a sham there must be a common intention (para 52);

We then turn to the initial question of when does the Appellant have a “case to answer” at all? The starting point is always that where such an allegation is raised by the SSHD, they have to discharge the burden of proof beyond reasonable doubt. The recent Scottish CSIH (Inner House of the Court of Session, which is the Scottish equivalent of the Court of Appeal) judgment from Scotland in the case of Usman Asim v SSHD [2018] CSIH 41 makes it clear that any assessment by the FTT to the effect that in EEA immigration appeals the burden of proof is on the appellant and the standard of proof required is a balance of probabilities” is tantamount to being “plainly an error of law in light of the judgment of the UK Supreme Court in Sadovska v Secretary of State for the Home Department 2018 SC (UKSC) 38, particularly at paragraphs 14 and 31 to 33 of that judgment.

Of course, most pertinent Supreme Court judgment to date remains the recent Supreme Court judgment in the case of Sadovska & Anor v Secretary of State for the Home Department (Scotland) [2017] UKSC 54 where at paragraph 34 Lady Hale (with whom Lord Neuberger, Lord Kerr, Lord Clarke and Lord Reed agree) emphasised that the burden of proof of establishing that the proposed marriage is one of convenience falls on the Secretary of State.  In the absence of specific evidence of fraud, the marriage in itself is presumed conducive, provided clearly significant and henceforth compelling evidence of a durable and genuine relationship between the Appellant and his wife is presented. 

Importantly, the Court of Appeal judgment in the case of Agho v The Secretary of State for the Home Department [2015] EWCA Civ 1198 concerning the issue of allegations of “sham marriage” SSHD in decisions confirms the obiter remarks of former President Blake in the earlier tribunal case of Entry Clearance Officer, Nicosia v Papajorgji [2012] UKUT 00038 (IAC), which has been the leading authority on the issue of subsistence / genuineness of marriage for many years. In Agho, Underhill LJ (with Vos and Moore-Bick LJJ concurring) held that although the burden of proof issue was said not to directly arise in the appeal, Underhill LJ made clear at paragraph 13 of the judgment that Papajorgji was right and that:

 “What it comes down to is that as a matter of principle a spouse establishes a prima facie case that he or she is a family member of an EEA national by providing the marriage certificate and the spouse’s passport; that the legal burden is on the Secretary of State to show that any marriage thus proved is a marriage of convenience; and that that burden is not discharged merely by showing “reasonable suspicion”. Of course in the usual way the evidential burden may shift to the applicant by proof of facts which justify the inference that the marriage is not genuine, and the facts giving rise to the inference may include a failure to answer a request for documentary proof of the genuineness of the marriage where grounds for suspicion have been raised. Although, as I say, the point was not argued before us, that approach seems to me to be correct – as does the UT’s statement that the standard of proof must be the civil standard, as explained by the House of Lords in Re B (Children) [2008] UKHL 35, [2009] 1 AC 11.”

It is worth noting that Papajorgji  at paragraphs 34-37 made clear that the ratio stemming from the old case of IS (Marriages of Convenience) Serbia [2008] UKAIT 31 – to the effect that  “once evidence of reasonable suspicion has been raised, there is a legal burden on the applicant to demonstrate that it is more probable than not the marriage is not one of convenience” – was wrong in principle. It is therefore somewhat safe to suggest that IS (Marriages of Convenience) Serbia [2008] UKAIT 31 is no longer good law and any reference to it is wrong.

At the outset of the judgment in Agho, at paragraph 5 of the judgment, Underhill LJ helpfully denotes that:

“The allegation that the Appellant’s marriage to [his EEA wife] was a marriage of convenience had not been put to him prior to UKBA’s decision. He had not been asked to provide evidence of the genuineness of the marriage nor to rebut what was said about the visit to 23 Manor Grove – as to which indeed no details whatever are given, not even the date. This was a clear breach of good practice

 At paragraph 45 of the judgment, Underhill LJ succinctly sums up as follows:

“the burden was on UKBA to make good its positive case that the Appellant and [his wife] never lived together at 23 Manor Grove; and for the reasons which I have given I do not believe that the very limited evidence which it produced was capable of overcoming the inference to the contrary that plainly arises from the contemporary documents…”

before concluding at paragraph 46 that he

“would allow the appeal and hold that, since it is not disputed that the Appellant was married to [his wife] and the genuineness of that marriage has not been successfully impugned, he was entitled to a[n] [EEA] residence card.

The only other small procedural leg that is left in such cases – although I’ve not seen it in action to date to a large extent – is whether there is an in-country right of appeal against EEA Refusals of such nature (including those concerning unmarried durable partners) in view of the old and (in my professional view inane) judgment in concerning removals of those in detention (largely Extended Family Members) as ruled in R (on the application of Bilal Ahmed) v Secretary of State for the Home Department [2015] UKUT 00436 (IAC) 24 July 2015 by UTJ Peter Lane and UTJ Storey.

It is my view that in the light of the fresh Court of Appeal judgment in Secretary of State for the Home Department v Christy [2018] EWCA Civ 2378, which itself clearly affirmed the position in the case of Banger and effectively affirmed the view taken by the Supreme Court in SM (Algeria) v Entry Clearance Officer [2018] UKSC 9 and by the Court of Appeal itself in Khan v SSHD [2017] EWCA Civ 1755 with respect to EFMs, the judgment in Bilal Ahmed is no longer good law and should not be followed, since it would impinge on the rights of both the “durable partner” in a direct manner and the EEA citizen in a constructive manner, neither of which is permissible (see the comment from the Court of Appeal on this point in Christy and the comment from Lady Hale in Sadvoska on the same subject).

By Hayk Sayadyan of Gulbekian Andonian Solicitors.

Hayk is a highly experienced Solicitor with significant expertise in corporate immigration and continually assists high net worth individuals in relation to entrepreneur and investor visa applications. Hayk is also a highly experienced litigator and has successfully challenged the UK government in a  number of high profile reported cases. 

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