Initially, the Secretary of State, according to the Court of Appeal in Luciara Machado Rosa v SSHD  EWCA Civ 14. The burden may shift to the individual only if the Secretary of State first establishes a marriage of convenience on the facts.
A quick glance at the legal framework shows that rules relating to sham marriages are dispersed across a dizzying range of statutes, including:
- the Immigration and Asylum Act 1999 (‘IAA 1999’ sections 24, 24A);
- the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (ss 19-24); and
- the Immigration Act 2014 (‘IA 2014’ Part 4 section 55 and 56, and Schedule 6) post-1 March 2015;
- Immigration (European Economic Area) Regulations 2006, SI 2006/1003 (‘EEA Regulations’) regs. 19, 21 and 21B;
- the Civil Partnership Act 2004 (Schedule 23).
(… not to mention Home Office policy guidance, such as Chapters 30, 37, 42, 50, 53 and 55 of the Enforcement Instruction Guidance).
Given their enthusiasm for legislating in this area, you might think that English lawmakers would have sewn up the law of sham marriages like a custom-fitted onesie.
Think again. Some of the fundamentals are wooly and unclear.
For example, buried in section 24 of IAA 1999 is a definition (amended last year by IA 2014) of what a sham marriage is. Interestingly, the Court of Appeal inRosa made no reference to this section. Instead, they endorsed the more restrictive definition in Article 1 of EC Council Resolution 97/C 382/01 of 4 December 1997, namely:
a marriage concluded between a national of a Member State or a third-country national legally resident in a Member State and a third-country national, with the sole aim of circumventing the rules on entry and residence of third-country nationals and obtaining for the third-country national a residence permit or authority to reside in a Member State.
This must be right, at least in cases concerning EEA nationals, because the definition in section 24 of IAA 1999 is still slightly broader than the EC Council Resolution, and where there is conflict between UK laws that give effect to EU law, the position at EU law should prevail.
Likewise, the key issue of who bears the burden of proving that a marriage is a sham is not clarified by any of the statutes listed above. The Court of Appeal turned its mind to this question in Rosa.
Lord Justice Richards, giving the Court’s unanimous judgment, discussed the case law on the burden of proof and approved of the approach of the Upper Tribunal in Papajorgji (EEA spouse – marriage of convenience) Greece  UKUT 00038 (IAC) at paragraphs 20 and 33 – 37, which clarifies that the legal burden of establishing the marriage of convenience falls on the Secretary of State but the evidential burden may shift the individual once the facts have been established by the Secretary of State.
The Court dismissed the argument that the burden of proof should fall on the individual if the Secretary of State has ‘reasonable suspicion’. It is not for the individual to prove a negative (ie. that their marriage is not a sham) if the Secretary of State has not raised sufficient evidence in support of its allegation.
Practitioners will be pleased to see that the Court was guided in its conclusion by the European Commission Handbook (COM(2014) 604 final) – a thoroughly sensible and highly useful document which addresses questions of evidence as well as investigations and procedural fairness. Relevant parts of the Handbook can make a decisive impact and it is highly recommended to make sure that Judges deciding these cases are familiar with its contents.
[If you require advice, for example on sham marriage cases and related matters under the EEA Regulations, please be in touch. I’m part of the Immigration & Asylum team at 36 Bedford Row who may be able to assist you].