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Supreme Court ruling on burden of proof in EU free movement rights

Sadovska v SSHD (Scotland) [2017] UKSC 54 (27 July 2017)

As is well known, EU nationals have extensive rights of free movement throughout the EU as a result of the Treaties and Directive 2004/38/EC.  These rights apply equally to the spouse or registered partner of an EU national (Article 3).  However, they do not apply to a spouse in a “marriage of convenience”. 

In a short judgment handed down yesterday, the Supreme Court finally resolved the arguments relating to the burden of proof in alleged marriage of convenience cases.  The Secretary of State must prove that the marriage is a marriage of convenience.  It is not for the individuals to prove otherwise: [28], [32].

The judgment is interesting for two additional reasons:

First, the Directive defines a marriage of convenience in Recital 28 as one contracted “for the sole purpose of enjoying the right of free movement and residence”.  The Supreme Court however, endorses the less onerous approach contained in the Commission’s Handbook which provides guidelines on the proper application of the Directive.  The Handbook explains:

“the notion of ‘sole purpose’ should not be interpreted literally (as being the unique or exclusive purpose) but rather as meaning that the objective to obtain the right of entry and residence must be the predominant purpose of the abusive conduct.”

However:

“On the other hand, a marriage cannot be considered as a marriage of convenience simply because it brings an immigration advantage, or indeed any other advantage (for example the right to a particular surname, location-related allowances, tax advantages or entitlement to social housing for married couples).”

See [29] of the judgment.

Second, marriages of convenience fall under the head of “abuse of rights” in Article 35.  This article provides that Member states “may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience”.

The Court appears to have proceeded on the assumption that the EEA national could, subject only to questions of proportionality, be removed on the grounds that she had abused her right of free movement by attempting to enter into a marriage of convenience [30].  That is interesting because there is an argument that the doctrine of abuse of rights, as developed in EU law, only serves to remove those rights acquired by the abuse in question.  A typical example would be where a company sets up a scheme for the export and then re-importation of an agricultural product, in order to benefit a Community law right to a duty refund.  Despite meeting all formal requirements of the Directive, the scheme is considered to be an abuse of rights and therefore the paying authority may be entitled to claim back the money paid to the company. 

However, marriages of convenience do not fit easily into this mould.  An EEA national, who has legitimately exercised her free movement rights and established herself in the UK for the last 5 years (and has thus gained a right of permanent residence) does not gain any free movement rights through entering into a marriage of convenience with a third country national.  She already has them in her own right. 

From the terms of the judgment, this point does not appear to have been argued and it may be that the simple answer is that marriages of convenience are different.  They are specifically highlighted in the Directive as an example of abuse of rights in respect of which Member States may take the necessary measures to withdraw or refuse rights granted under the Directive. 

In light of the discussions about transitional measures for Brexit, it is likely that these issues will remain important for some time yet.

The judgment is available here