Sham Scots marriage ruling overturned by Supreme Court halts immediate threat of Theresa May-approved deportation

The couple, who met at a Cuban-style dance club in Edinburgh five years ago, took their fight to the highest court in the land and Supreme Court judges yesterday ruled in their favour.

They have now sent the case back to immigration judges for a fresh hearing, where the Supreme Court said it was up to the Home Office to show that the planned marriage is a sham.

The judges said: "One of the most basic rules of litigation is that he who asserts must prove.

"It was not for Ms Sadovska to establish that the relationship was a genuine and lasting one. It was for the [Home Office] to establish that it was indeed a marriage of convenience."

The court had previously heard that Mr Malik arrived in the UK on a student visa in May 2011. It expired two years later and he has been here unlawfully ever since.

Ms Sadvoska was an EU citizen, who came to the country 10 years ago from Lithuania and worked as a cleaner in Edinburgh. She was in the country lawfully, exercising her rights under the European Union free movement rules.

The couple met at the Cuban-style dance club El Barrio in Edinburgh five years ago and spent the night together.

But they did not perceive themselves as boyfriend and girlfriend until four months later on Valentine's Day.

A year after they both attended the wedding of Ms Sadovska's sister, they booked a trip to London for four night and then decided to they would get married.

But uniformed immigration officials pounced to halt their wedding day in April, 2014, carrying batons and handcuffs after they had published a notice of their intention to marry at Leith Registry Office.

The ceremony was prevented by UK Border Agency staff because they thought that Mr Malik was trying to exploit immigration laws that would have allowed him to remain in the UK.

This prompted Theresa May, then home secretary, to order their deportation on the grounds that they were manipulating immigration laws.

Their case was originally called before specialist immigration judges who ordered they should be expelled from the UK on the grounds that they were manipulating laws. But their solicitors argued that immigration judges had made legal errors and that even though the couple had agreed to be interviewed by UK Border Agency staff in English, they felt interviews were "unfair, oppressive and repugnant to public law standards".

The couple argued they were in a legitimate relationship and that their human rights had been violated.

But in written judgment issued by the Court of Session, Scotland's most senior judge, the Lord President, Lord Carloway, ruled the judges acted correctly.

He said the First Tier Tribunal had found that "what was said at interview demonstrated the absence of a relationship leading to a genuine marriage".

But the Supreme Court judges, in allowing the couple's appeal over the Court of Session decision, found that specialist immigration judges' approach was to require the couple to prove their proposed marriage was not a sham, rather than require the Home Office to prove it.

The judges said: "One of the most basic rules of litigation is that he who asserts must prove. It was not for Ms Sadovska to establish that the relationship was a genuine and lasting one. It was for the [Home Office] to establish that it was indeed a marriage of convenience."

They said that EU guidance on free movement state that "a marriage cannot be considered as a marriage of convenience simply because it brings an immigration advantage".

And they said any tribunal even if it thought Ms Sadovska had abused her rights to remain it must also be satisfied that expulsion is a "proportionate response".

The Supreme Court has ordered that the First Tier Tribunal must hear the case again because "a wrong approach was taken to the requirement of EU law".

Lady Hale, for the Supreme Court judges said: "For my part I would not accept their argument that, because their marriage was frustrated by the [Home Office's] actions, their case should be approached as if they were married, which would, of course, enhance Mr Malik's claims. "It must be permissible for the state to take steps to prevent sham marriages, although it is also incumbent on the state to show that the marriage would indeed be a sham."

Lady Hale also said the Home Office, in establishing its case will "no doubt concentrate on the interviews, the discrepancies between the appellants' accounts, and the gaps in Ms Sadovska's knowledge of Mr Malik's family".

Officials would also look at a sentence in their statement of March 28 that their thoughts of living together and marriage had not yet 'manifested into action' which was "strictly true in that the were not yet living together or married but they had given notice of intention to marry".

Lady Hale added: "But in considering those discrepancies, the circumstances in which the interviews took place and the statement was made must be borne fully in mind.

"Furthermore, there were many matters on which their accounts were consistent. It turns out, for example, that Ms Sadovska’s mother does indeed live in Lithuania, as Mr Malik said in explaining why she was not there.

"There is also a considerable body of evidence which supports their claim to have been in a genuine relationship, dating back some time before they gave notice of intention to marry.

"Should the tribunal conclude that Mr Malik was delighted to find an EU national with whom he could form a relationship and who was willing to marry him, that does not necessarily mean that their marriage was a 'marriage of convenience', still less that Ms Sadovska was abusing her rights in entering into it."