Aidan O’Neill QC
EU citizenship and free movement of persons
In R (Agyarko) v Secretary of State for the Home Department, the Court dismissed claims by third-country non-EU nationals who while residing unlawfully in the UK had established family life here by marrying or become partners of British citizens. Applying CJEU case law, the Court held that there was on the facts no breach of the British citizens’ rights qua EU citizens since the removal of their spouse or partner from the EU would not then force the British citizen to leave the EU.
Sadovska v Secretary of State for the Home Department concerned a Pakistani national who intended to marry a Lithuanian national who had lawfully exercised her free movement rights to move to the UK. The Secretary of State considered that the parties were seeking to enter into a sham marriage of convenience for the purposes of avoiding immigration restrictions and ordered the removal of both of them from the UK on the basis that the Lithuanian woman had abused her EU law rights of residence and her intended husband had overstayed his limited leave to enter in breach of s 10(1)(a) of the Immigration and Asylum Act 1999, the lawfulness of which decisions were upheld by the First Tier Tribunal. In remitting matters to be reconsidered by the First Tier Tribunal, the Court held that it had not properly applied EU law. The Court noted that while the non-EU citizen party to an alleged marriage of convenience had no established rights under EU law and, if claiming a ‘durable relationship’ with an EU citizen for the purposes of art 3(2) of the Citizenship Directive 2004/38/EC, had to produce evidence to that effect, there was no such onus placed on the EU national (it being for the national authorities to adduce evidence against the reality of the marriage). Furthermore and in any event, a judgment still had to be made as to whether her removal from the UK, even if she had been party to attempting a sham marriage, was proportionate.
This is an excerpt from a chapter in Daniel Clarry (ed), The UK Supreme Court Yearbook, Volume 8: 2016-2017 Legal Year (Appellate Press 2017).
  UKSC 11,  1 WLR 823.
  UKSC 54,  1 WLR 2926.