In the case of Rosa v Secretary of State for the Home Department  EWCA Civ 14 the Court of Appeal has again ruled that in EU free movement law cases, the burden for proving a marriage is a marriage of convenience rests with the Home Office:
In my judgment, the legal burden lies on the Secretary of State to prove that an otherwise valid marriage is a marriage of convenience so as to justify the refusal of an application for a residence card under the EEA Regulations. The reasoning to that effect in Papajorgji, as endorsed in Agho.
See previous blog post on the Agho case: Court of Appeal rules burden for proving sham marriage rests with Home Office.
On the facts of Rosa, though, the fact that the judge below was wrong on who had to discharge the legal burden did not matter and the appeal failed. There was “clear cut” evidence that the marriage was one of convenience.
Finally, Richards LJ emphasises that whether a marriage is one of convenience depends on the intentions of the parties at the date of the marriage, not on whether the relationship is later genuine and subsisting:
the focus in relation to a marriage of convenience should be on the intention of the parties at the time the marriage was entered into, whereas the question whether a marriage is “subsisting” looks to whether the marital relationship is a continuing one.
This might be bad news for Andie MacDowall’s character in Green Card.