OA048042015

The appellant is a citizen of Ghana born on 10 September 1976. She sought admission to the United Kingdom as the spouse of a European Economic Area national exercising treaty rights in the United Kingdom. On 12 January 2015 the respondent refused the appellant's application. The reasons for that refusal were that the respondent considered that the appellant was party to a marriage of convenience and therefore was not satisfied that the appellant met all the requirements of Regulation 12 of the Immigration (European Economic Area) Regulations 2006.

Permission to appeal was granted by First-tier Tribunal Judge Kelly on 10 February 2017 only in respect to the ground of appeal that the judge erred in applying the incorrect burden of proof. The claim that the Tribunal had not accurately recorded the oral testimony was refused.

He submitted that the question asked at the hearing before the First-tier Tribunal regarding the sponsor's Swedish passport had not been put to the appellant at the time of the application or in the interview with the Respondent. Neither the appellant nor the sponsor had been asked the question as to what their intention was at the time that they entered into the marriage.

In reply Mr Siaw submitted that at paragraphs 40 and 41 of Rosa it makes it clear that questions regarding the subsistence of relationship, in this case the questions about money being transferred and about communication are all evidence of subsistence which, as held in Rosa , are not relevant to the question of marriage of convenience. They are concerned with whether or not a relationship is genuine and subsisting.

"29. ...The result that I think the Tribunal must have intended is achieved if the legal burden of proof lies on the Secretary of State throughout but the evidential burden can shift, as explained in Papajorgji . In my judgment, that is the correct analysis."