(i) There are different tests to determine whether a marriage is a ‘sham’ or whether a marriage is one of convenience under EU law, in this case the 2016 Regs. The former is defined in s.24 (5) of the 1999 Act (see Molina) and requires the absence of a genuine relationship. In respect of the latter, the predominant purpose test applies (see Sadovksa).
(ii) The terms ‘sham marriage’ and ‘marriage of convenience’ are not mutually exclusive. The absence of a genuine relationship at the time of the marriage being entered into would render the marriage one of convenience (and a ‘sham’); however, if there is a genuine relationship at the time of the marriage, while it could not be categorised as a ‘sham’ marriage, it may still amount to a marriage of convenience (depending on the predominant purpose).
(iii) When deciding whether a marriage is one of convenience under the 2016 Regs, a Tribunal should make clear findings about whether it is accepted that there was a genuine relationship between the parties to the marriage at the material time (the time of the marriage).
(iv) There is deception deployed by a person who knowingly enters into a marriage of convenience with another in the absence of a genuine relationship. In the absence of a genuine relationship at the relevant time, a Tribunal may be entitled to infer that deception was exercised by the Appellant or the Sponsor or both. Depending on the facts there may be deception in a marriage of convenience.
Judges:
Upper Tribunal Judge Mcwilliam
Citations:
[2022] UKUT 18 (IAC)
Links:
Jurisdiction:
England and Wales
Immigration
Updated: 29 March 2022; Ref: scu.671711
