Sadovska and another (Appellants) v Secretary of State for the Home Department (Respondent) (Scotland) [2017] UKSC 54

On appeal from [2016] CSIH 51

Justices: Lord Neuberger (President), Lady Hale (Deputy President), Lord Kerr, Lord Clarke, Lord Reed

Background to the Appeal

An EU citizen with a permanent right of residence in a host member state may have that right removed ‘in the case of abuse of rights or fraud, such as marriages of convenience’. The issue in this appeal is which party bears the burden of proof of establishing that a proposed marriage is one of convenience. 

Ms Sadovska is a citizen of Lithuania. She moved to the United Kingdom in 2007 and has lived and worked here lawfully since, acquiring a right of permanent residence as an EU citizen pursuant to Directive 2004/38/EC (‘the Directive’). Mr Malik is a citizen of Pakistan who entered the UK with a student visa in May 2011 and has remained here unlawfully after his visa’s expiry in April 2013, in breach of section 10(1)(a) Immigration and Asylum Act 1999. Ms Sadovska and Mr Malik (‘the appellants’) maintain that they have been in a relationship with each other since February 2013, and decided to marry in January 2014.

On 11 April 2014, the appellants’ solicitors notified the Home Office in Glasgow that they intended to marry on 17 April 2014 at Leith Registry Office and invited officials to interview them before the wedding. Immigration officers arrived at the Registrar’s Office, interviewed the appellants separately, and then detained them before they were able to marry. Both were then served with notice that they were persons liable to removal from the UK: Mr Malik by having stayed after the expiry of his visa and Ms Sadovska by giving the Secretary of State reasonable grounds to suspect the abuse of her EU right of residence by attempting to enter into a marriage of convenience, contrary to regulation 19(3)(c) Immigration (European Economic Area) Regulations 2006.

The appellants appealed to the First-tier Tribunal. The judge held that the burden of proof was on the appellants to establish that their proposed marriage was not a marriage of convenience, and that they had failed to do this, having regard to the inconsistencies in their accounts at interview. The appellants appealed unsuccessfully to the Upper Tribunal and to the First Division of the Inner House, arguing that the tribunal had adopted the wrong approach to the burden of proof, and that the Secretary of State had failed to prove that the appellants were guilty of fraud, when the totality of the evidence relating to their relationship and the circumstances in which the interviews had taken place was taken into account.

Judgment

The Supreme Court unanimously allows the appeal and remits the case for a full re-hearing by the First-tier Tribunal. Lady Hale gives the only substantive judgment. 

Nestor Sylla is much loved and highly respected. Following the murder of his sister in Guinea, Africa, in 2006, he fled for his life to the UK, but previous legal work failed Nestor when a solicitor failed to respond to a Home office request for photographs. His complaint about the solicitor was upheld.

A natural helper, Nestor has volunteered for the BOAZ TRUST winter night shelter for seven years.  He has also volunteered for Red Cross and the Mustard Tree.  Nestor has created a new family in the UK and, in the process, become a vital carer for both Lawrence, aged 14, and for Elizabeth Coleman, retired.

Nestor was detained on Friday 30th June 2017. He had a new Leave to Remain application that was received by the Home Office before he was detained, therefore his detention was unlawful. His lawyer, Mervyn Cross of Duncan Lewis says:” There is absolutely no reason to detain Nestor.”

A natural helper, a vital carer for both Lawrence, aged 14, and for Elizabeth Coleman, retired, Lawrence says: “He’s a really great guy and helps me with my homework and takes me to school.” And Elizabeth says: “Nestor’s home is England. He is like a son to me. He has a lot to contribute to our society.”

Nestor himself says: “I believe what the Home Office is doing to me is illegal. Manchester is my place; it’s the best place in the world for me.”

This man and his new family need and want to be together. We are therefore asking people to sign this petition, urging the Home Office Nestor must be released immediately to stay safe and care for people in Manchester UK, where he is much loved and highly respected.

Please sign RAPAR’s Online petition: http://bit.ly/2uRu3RA

Source: RAPAR- Working together to Achieve Equal Human Rights

http://www.rapar.org.uk/          <admin@rapar.org.uk>

Pakistan
Pakistan’s human rights situation in 2016 remained of significant concern. Serious violations of women’s and children’s rights continued throughout the year. Terrorist incidents persisted despite a continued improvement in the security situation. The country’s minority communities, including religious minorities - in particular Ahmadiyya, Christian and Shia communities - suffered widespread persecution. Pakistan maintained its use of the death penalty, albeit at a reduced rate: there were 87 executions in 2016 compared to over 325 in 2015. Modern slavery continued to be a major problem. The operating space for international and domestic NGOs remained restricted. - Page 41 UK Human Rights & Democracy Report:

Israel/Occupied Palestinian Territories
We continued to be concerned by the human rights situation in Israel and the OPTs in 2016. We were concerned by the Israeli Government’s violation of international human rights and humanitarian law in the context of Israel’s occupation of the OPTs. We also had concerns about human rights infringements by the Palestinian Authority (PA) and grave concerns over those by Hamas in Gaza. The upsurge in violence, which began in late 2015, continued until April with ‘lone-wolf’ style terror attacks on Israelis, and clashes between Palestinians and the Israeli security forces. Attacks were characterised by random stabbings, shootings and vehicle rammings. We were concerned by the apparent role of incitement, particularly on social media. President Abbas condemned the violence in general terms in January but did not comment on specific attacks. On 9 March, the then FCO Minister for the Middle East and Africa, Tobias Ellwood, issued a statement condemning the violence. Some of the measures Israel introduced in response (including punitive house demolitions, and restrictions on movement and access) exacerbated existing human rights concerns. We were concerned over possible use of excessive force by the Israeli security forces against Palestinians. - Page 40 UK Human Rights & Democracy Report:

Iraq
The human rights situation in Iraq remained of grave concern in 2016. Despite the Iraqi Security Forces (ISF) reclaiming a large proportion of formerly Daesh-held territory, Daesh continued to commit atrocities in those areas that remained under their control, including targeting civilians in Eastern Mosul with mortar rounds and indiscriminate shooting. Reports allege that the ISF and Popular Mobilisation Forces (PMF) were involved in torture, forced disappearances and extrajudicial killing against those fleeing the fighting in Fallujah and other areas. The Government of Iraq (GoI) has taken steps to address this issue, repeating its commitments to investigate all reports of abuses and violations and to ensure that those responsible are held to account. Reports also allege that the Kurdish Security Forces (KSF) have engaged in the unlawful demolition of buildings and homes in liberated areas. The Kurdish Regional Government also undertook to investigate all allegations of violations by the Kurdish Security Forces. - Page 39 UK Human Rights & Democracy Report:

The EU's top court has ruled that a law requiring refugees to seek asylum in the first country they reach applies even in exceptional circumstances. The case, brought by Austria and Slovenia, could affect the future of several hundred people who arrived during the migrant crisis of 2015-16. The ruling concerns two Afghan families and a Syrian who applied for asylum after leaving Croatia. The court says it is Croatia's responsibility to decide their cases. The crisis unfolded during the summer of 2015, as one million migrants and refugees travelled through the Western Balkans.

Under the so-called Dublin regulation, refugees typically have to seek asylum in the first EU state they reach. But Germany suspended the Dublin regulation for Syrian refugees, halting deportations to the countries they arrived in.

The Secretary of State for the Home Department v GD (Ghana) [2017] EWCA Civ 1126 (25 July 2017)

Be that as it may, the fact is – the law is – that the Secretary of State when exercising her powers of removal or deportation is not bound by any order of the Family Court or of the Family Division and that the Secretary of State, if she wishes to remove or deport a child or the child's parent, does not have to apply for the discharge or variation of any order of the Family Court of Family Division which provides for the child or parent to remain here.

http://www.bailii.org/ew/cases/EWCA/Civ/2017/1126.html

Iran
There was little improvement in the human rights situation in Iran in 2016. Areas of serious concern were the frequent use of the death penalty, freedom of religion and freedom of expression. Although not all executions are made public, estimates suggest that there were over 530 in Iran over the course of the year. This represents a decrease on the record number seen in 2015. Iran continued to use the death penalty against juveniles and in cases that are not deemed the “most serious” under international law, such as drugs offences. Homosexuality continues to be illegal and punishments can range from 100 lashes to the death penalty for both men and women. In July, 19-year-old Hassan Afshar was hanged after he was convicted of forced male to male anal intercourse when he was 17. Religious minorities continue to face restrictions in Iran. Members of both constitutionally recognised and unrecognised religions continue to suffer discrimination for peacefully manifesting their beliefs. - Page 39 UK Human Rights & Democracy Report:

Eritrea
Human rights concerns persisted in Eritrea throughout 2016, with little improvement. Eritrea is a one-party state with no political opposition; there is no anti-discrimination legislation to protect LGB&T rights; citizens are subject to arbitrary extensions to periods of already prolonged national service; and severe constraints persist on freedom of religion or belief and freedom of the press. Of grave concern in 2016 was the final report delivered on 21 June by the UN Commission of Inquiry on Human Rights in Eritrea, which stated that there were “reasonable grounds to believe that crimes against humanity have been committed by the Government of Eritrea”. The Special Rapporteur on Human Rights in Eritrea continues to be denied access to the country. - Page 38 UK Human Rights & Democracy Report:

Basis of claim
1.1.1 Fear of domestic violence from non-state actors and lack of effective protection from the Iranian authorities.

Summary of issues 
1.1.1 Whether in general, those at risk of persecution or serious harm from non-state actors are able to seek effective protection and/or internally relocate within Albania.