Home Office reliance on testimony from hospitalised spouse deemed abuse of Human Rights

Daiga Barzdina
Successful immigration lawyer – Daiga Barzdina

Our client is a Ukrainian national who was granted a 5-year residence card on the basis of his Lithuanian spouse. When he applied for the Permanent Residence Card based on the same relationship, the Home Office refused his application on the sole ground that they deemed the marriage to be one of convenience.

In deciding this dispute, the Judge first had to determine whether an interview with the spouse should be excluded and then to consider the question of the marriage of convenience.

This is because the evidence used by the Home Office in coming to their conclusion relied mainly on their visit to the Appellant’s home and a telephone call to his wife on the same day.

Excluding Evidence

We argued that the telephone call made by the Home Office to the client’s spouse should be excluded from the evidence, relying on Elsakhawy (immigration officers: PACE) [2018] UKUT 86 (IAC). Judges can refuse to allow evidence that, if admitted, would have an adverse effect on the fairness of the proceedings.

In this case, the client’s spouse was in the hospital, having had suffered from strokes, heart attacks, and brain damage. The interview was conducted when the client’s spouse was being treated as an in-patient in the hospital. In the interview notes, it could be seen that the client’s spouse was disoriented as she could not spell her own name, her address, full name or even that she was married.

The judge held that this was a complete abuse of her rights and completely unnecessary because the investigation/inquiry could have been made when the client’s spouse had recovered from her condition. For this reason, the interview was excluded from the final consideration of the case.

Marriage of Convenience

A marriage of convenience is a marriage entered into for the predominant purpose of securing rights of residence in the UK. When the Home Office is considering whether a marriage is one of convenience, it is for them to prove that this is the case. The case of Papajorgii (EEA spouse – marriage of convenience) Greece [2012] UKUT 00038 (IAC) states that the important question is whether it is more likely than not that the marriage is one of convenience when it was entered into.

Without the interview of the client’s spouse, the main evidence that the Home Office was relying on was a home visit where they interviewed the client, saw that the Appellant might be living alone and that the house did not seem to be occupied by a female. They also saw a name on a mobile phone and documents relating to a divorce in Ukraine prior to his current marriage.

Following the home visit, no further enquiries were made, and the Home Office immediately decided that the Appellant’s marriage was one of convenience. This was not enough to show that the Home Office had a justified suspicion that the marriage was one of convenience when it was entered into, especially when our client was previously granted a Residence card on the basis of this relationship.

The appeal was allowed, and the determination of the First-tier Tribunal was promulgated on 27 April 2018. Following this appeal, our client has been issued with a Permanent Residence card and will continue to stay and reside in the UK.

The casework in this sensitive matter was handled by the Immigration lawyer, Daiga Barzdina.

Immigration Assistance

For expert advice and assistance in relation to your particular immigration case, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile / Viber: +447463382838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.