judgement:
This is an interlocutory appeal in a criminal case which concerns the correct construction of section 92(1) of the Trade Marks Act 1994 (the 1994 Act).
The appellants are a limited company and two individuals connected with its management.
They are indicted for, inter alia, offences of unauthorised use of trade marks, contrary to section 92(1)(b) and (c) of the 1994 Act.
No trial has yet been held, and the Crown case remains at this point a matter merely of allegation, which may or may not be proved.
At a preparatory hearing in the Crown Court, they advanced a submission that part of what was alleged was, on any view, outside the terms of section 92 and no offence.
Both the trial judge and the Court of Appeal (Criminal Division) rejected that submission.
They renew it in this court.
What is alleged is that the defendants are engaged in the bulk importation and subsequent sale of goods such as clothes and shoes.
The goods, or many of them, are said to bear what appear to be the trade marks of well known brands, such as Ralph Lauren, Adidas, Under Armour, Jack Wills, Fred Perry or similar.
The goods were manufactured abroad, in countries outside the EU.
Some of the goods in the possession of the defendants are said to have been manufactured by people who were neither the trade mark proprietor, nor authorised by the proprietor to make them.
This first category of goods, the appellants describe as counterfeits in the true sense.
A significant portion of the remainder of the goods are, however, ones where there had originally been an authorisation of manufacture by the registered trade mark holder, whether by subcontract, licence or otherwise, but whose sale had not been authorised by him.
They were thus sold, bearing the trade mark, without the consent of the owner of the mark.
The causes of the non authorisation of sale might be, it is said, various.
Some garments might deliberately have been made by the factories in excess of the numbers permitted by the trade mark owner, so that the balance could be sold for their own benefit.
Some might have been made in excess of the order without that original ulterior intention (indeed perhaps as precautionary spare capacity planned and approved by the trade mark owner), but then have been put on the market without his consent.
Some might have been made under a permission which was cancelled by the trade mark owner; that in turn might include cases where the trade mark owner was dissatisfied with the quality and not prepared to have the goods put on the market as if their own, but cancellation might not be limited to that cause.
Those are not exhaustive of the possibilities.
These latter various types of goods are described by the appellants as goods appearing on the grey market.
It is common ground that neither the indictment nor the way the Crown puts its case distinguishes between these various different provenances.
That led to submissions that the indictment would turn out either to be bad for duplicity or to be misleading, and at risk of producing verdicts which it was difficult to interpret.
Thus was the point now at issue identified.
In short, it is common ground that: (i) before there can be a criminal offence of unauthorised use of a trade mark there must be an infringement of that mark which would be unlawful as a matter of civil law; see R v Johnstone [2003] UKHL 28; [2003] 1 WLR 1736; and (ii) the sale, or the possession in the course of trade, of goods of any of the various provenances set out in para 5 above, would amount to an infringement of trade marks, giving rise to civil liability.
But the appellants case is that whilst any of the various provenances set out would involve civil liability, it is only in the case of what they describe as true counterfeits that there is any criminal offence.
They say that goods which were originally manufactured with the permission of the trade mark proprietor, but which are ones where he has not authorised the sale, are not true counterfeits and are not within the statute.
Section 92(1) does not apply, they contend, to goods put on the grey market.
The resolution of this contention depends on the true construction of section 92(1) of the 1994 Act.
It says: 92. (1) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor (a) applies to goods or their packaging a sign identical to, or likely to be mistaken for, a registered trade mark, or (b) sells or lets for hire, offers or exposes for sale or hire or distributes goods which bear, or the packaging of which bears, such a sign, or (c) has in his possession, custody or control in the course of a business any such goods with a view to the doing of anything, by himself or another, which would be an offence under paragraph (b).
Subsection 92(5) adds a reverse onus statutory defence: (5) It is a defence for a person charged with an offence under this section to show that he believed on reasonable grounds that the use of the sign in the manner in which it was used, or was to be used, was not an infringement of the registered trade mark.
The appellants contention focuses on the use of the expression such a sign in subsection (1)(b).
That refers back, they say, to subsection (1)(a).
And by referring back to (1)(a), they say, it means that (b) applies only to goods where the relevant sign (ie trade mark) has been applied without the consent of the proprietor.
Any goods in the grey market category have had the trade mark originally applied with the consent of the proprietor.
It is only the sale which the proprietor has not authorised.
Therefore, they say, those goods are not ones to which paragraph (a) of the subsection could apply.
It follows, they contend, that they are not, when it comes to paragraph (b), goods which bear such a sign.
It may readily be agreed that the expression such a sign in section 92(1)(b) refers back to the sign described in the immediately preceding paragraph (a).
The difficulty comes when one is asked to read such a sign as incorporating the words without the consent of the proprietor which appear in the first few lines of the section before (a), and also the requirement that the sign has been applied to the goods (without such consent), which is the central component of the offence under (a).
This is simply not a possible construction of section 92(1).
There is no difficulty, on the ordinary reading of paragraphs (a) and (b), in seeing what the reference back to such a sign in (b) imports from (a).
Such a sign in (b) plainly means a sign such as is described in (a).
The sign described in (a) is a sign which is identical to, or likely to be mistaken for, a registered trade mark.
Signs (or trade marks) having any of the provenances described in para 5 above are squarely within this description.
So called grey market goods are caught by the expression.
The offences set out in paragraphs (a), (b) and (c) of section 92 are, as a matter of plain reading, not cumulative, but separate.
It is not necessary that one has been committed (by someone) before one can say that the next in line has been.
The mental element of a view to gain or the intent to cause loss is applicable to all three.
So is the element that the use made of the sign is without the consent of its proprietor.
Paragraph (a) then makes it an offence to apply such a mark, without consent and with the relevant mental element.
Paragraph (b) makes it an offence to sell (etc) goods with such a mark, without the consent of the proprietor and with the necessary mental element.
Paragraph (c) does the same for the preparatory offence of possession in the course of business with a view to behaviour which would be an offence under (b), again without the consent of the proprietor and with the relevant mental element.
Subparagraph (c) thus involves anticipation (but not necessarily the commission) of an offence under (b).
Of course, a person may commit all three offences, or different people may commit all three between them.
But that is not necessary.
Each stands alone.
The appellants reading of paragraph (b) is, by contrast, strained and unnatural.
It does not simply reach back to (a) but to the general words of the section which precede it.
It requires one to read sign in (a), which is incorporated into (b), as which bears a sign, so applied, or at least as such a sign, so applied.
This being so, there is no ambiguity or obscurity in the language such as would justify the court, pursuant to Pepper v Hart [1993] AC 593, in investigating the contents of Parliamentary debate at the time of the passage of the Bill which became the 1994 Act.
Nor can it be suggested that the ordinary (or literal) reading of the Act gives rise to absurdity.
It should be recorded, moreover, that the appellants realistically did not contend that there had been the kind of clear ministerial statement which amounted to a definitive identification of what the Bill was intended to achieve.
The most that is contended for is that the passage of the Bill was marked by several references to the desirability of punishing counterfeiting.
No doubt it was.
But there is not suggested to be any point at which Parliament, or any individual speaker, confronted the suggested difference between fake goods (which the appellants here describe as true counterfeits) and grey market goods.
Still less is there any point at which it can be suggested that Parliament plainly confined itself to criminalising fake goods and abjured the criminalising of grey market goods.
In support of their contention that such a distinction was plainly intended, the appellants referred to observations made by Lord Nicholls and Lord Walker in R v Johnstone upon the differences between counterfeit goods, pirated goods, and bootlegged goods.
Those observations arose, however, in the context of the case in which they were spoken.
The defendant was charged with offences against section 92(1)(c).
The offences were said to have arisen out of his possession for sale of compilation compact discs comprising songs which had covertly been recorded at concerts given by well known artistes.
The compact discs referred to the artistes by name, track by track, and the artiste had in each case registered his name as a trade mark.
The issue was whether the use of the name was, in the particular circumstances, one which might be taken by the buying public as an indication of authorised origin of the disc, as distinct from identifying the singer.
That was a question of fact, but unless it was demonstrated that the use of the name would be taken as an indication of origin, there would be no civil liability for trade mark infringement, and the decision of the House was that in that event there could be no criminal liability either.
It was in that context that Lord Nicholls referred at paragraph 1 to counterfeit goods as cheap imitations of the authentic article; that was said to distinguish that case from pirated music, which is music marketed without any trade mark, although recorded from a trade marked disc, and from bootlegged music, which is what Mr Johnstone had.
Likewise, Lord Walker, at para 59, referred to counterfeiting as an expression generally used to include unauthorised sale, under a well known trade mark, of goods not made or authorised by the proprietor.
Neither of their Lordships was addressing what is here said to be the critical difference between fake goods and unauthorised goods on the grey market.
Their observations came, moreover, years after the passage of the 1994 Act, and could not have been in mind at the time of its passing.
The appellants are correct that, in the context of goods which a proprietor voluntarily puts into the European single market with his trade mark attached, section 12 of the 1994 Act, transposing article 7 of Directive 89/104/EEC, has the effect that further objection to the use of the mark is limited to special cases, such as changes or impairments to the goods.
But that is true whichever of the rival constructions of section 92 is correct.
Where it applies, this concept of exhaustion means that there is no infringement of the mark as a matter of civil law, and thus no criminal offence.
But this sheds no light on the correct construction of section 92.
The appellants further drew attention to the wording of the predecessor of section 92, section 58A of the Trade Marks Act 1938.
This had provided: 58A.(l) It is an offence, subject to subsection (3) below, for a person (a) to apply a mark identical to or nearly resembling a registered trade mark to goods, or to material used or intended to be used for labelling, packaging or advertising goods, or (b) hire, or distribute to sell, let for hire, or offer or expose for sale or goods bearing such a mark, or (i) (ii) material bearing such a mark which is used or intended to be used for labelling, packaging or advertising goods, or (c) to use material bearing such a mark in the course of a business for labelling, packaging or advertising goods, or to possess in the course of a business goods or (d) material bearing such a mark with a view to doing any of the things mentioned in paragraphs (a) to (c), when he is not entitled to use the mark in relation to the goods in question and the goods are not connected in the course of trade with a person who is so entitled. (3) A person commits an offence under subsection (1) or (2) only if (a) he acts with a view to gain for himself or another, or with intent to cause loss to another, and (b) he intends that the goods in question should be accepted as connected in the course of trade with a person entitled to use the mark in question; and it is a defence for a person charged with an offence under subsection (1) to show that he believed on reasonable grounds that he was entitled to use the mark in relation to the goods in question.
This section provided, in subsection (3), for a more stringent test of mental element than does the present section 92.
The appellants invite us to conclude that the earlier, more stringent, mental element may have had the practical effect of confining criminal liability to cases of their category of true counterfeits, and they say that a change in that effect is not demonstrated to have been intended by the 1994 Act.
The difficulty with that is that whilst it is certainly true that the mental element was more stringent, the 1938 Act would still have caught so called grey market goods, for paragraph (1)(b) clearly applied to goods which were sold when sale was unauthorised, whether or not the original application of the mark had been permitted.
Moreover, it is noticeable that the construction now contended for of section 92(1)(b) could not have been applied to section 58A(1)(b) without considerable difficulty, for the words giving effect to the element of absence of consent of the trademark proprietor did not appear at the beginning of the section as they now do, but only at the end; hence it would have been even more problematical to suggest that such a mark imported them.
It is plain enough that the inversion of the order of the words was a grammatical rather than a substantive variation.
Nor is there any reason to strain the language of section 92(1)(b) so as to exclude the sale of grey market goods.
That is not because of the consequentialist arguments pressed on us by the Crown.
It is doubtful that (absurdities or impossibilities apart) difficulties in assembling evidence can ordinarily affect the construction of a criminal statute.
Moreover, some of the supposedly adverse consequences of such a construction which were put before us on behalf of the Crown would be as likely to ensue even on the correct interpretation of the Act set out above.
The possible difficulty of distinguishing, where there has been an overrun, between the goods marketed with the proprietors authority and those which were a backdoor venture on the part of the manufacturer and subsellers, might as well arise on both constructions; no doubt in many cases the circumstances of the exit from the factory and of the subsequent sales will often be telling.
Likewise it is far from clear that there will be greater difficulty occasioned by the appellants suggested construction than by the correct one in the case of convincing fakes.
In both cases the defendant may occasionally be in a position to assert that he was taken in and thus reasonably believed that no infringement was involved.
Such a defence, if advanced, must be met on its merits, which will no doubt involve investigation of, inter alia, the circumstances in which the defendant acquired the goods and the inquiries which he did or did not make.
But, these consequentialist arguments apart, it is, on any view, unlawful for a person in the position of the defendants to put grey goods on the market just as it is to put fake ones there.
Both may involve deception of the buying public; the grey market goods may be such because they are defective.
The distinction between the two categories is by no means cut and dried.
But both are, in any event, clear infringements of the rights of the trade mark proprietor.
Defendants who set out to buy up grey market goods to make a profit on re sale do so because the object is to cash in on someone elses trade mark.
If such be proved, they have scant claim to a beneficent construction of the Act.
As it is, its ordinary reading plainly means that, unless they have the statutory defence, they have committed an offence.
In the alternative, the appellants contend that the Crowns construction of section 92(1) involves a disproportionate breach of their rights under article 1, Protocol 1 to the European Convention on Human Rights.
It may be accepted that it is perfectly possible that the imposition of a criminal sanction might be disproportionate where a civil law sanction is not.
But persons in the position of these defendants have no proprietary right in the trade marks.
They do have a right in the goods which they have bought, but the 1994 Act does not stop them selling them, except if they wish to do so whilst still with the misleading and infringing trade mark attached.
The 1994 Act does not, therefore, deprive the defendants of any property which they have.
The most it does is to regulate their use or the manner of their disposal of the goods, which is permitted under the second paragraph of article 1 in the general interest, which must include a general interest in the protection of trade marks.
There is in any event nothing disproportionate in the 1994 Act penalising sales when the infringing trade mark is still attached, nor in imposing a criminal sanction on those who might otherwise calculate that the risk of liability in damages is worth taking.
That is a perfectly legitimate balance to draw between the rights of the proprietor to protect his valuable trademark and goodwill, and those of the person who wishes to sell goods which he has bought.
For these several reasons, these appeals must be dismissed and the trial may proceed accordingly.

summary:
This is an interlocutory appeal in a criminal case in which the appellants are defendants indicted for offences of unauthorised use of trademarks, contrary to section 92(1) of the Trade Marks Act 1994 (the 1994 Act).
An offence is committed under that section where a person does any of the following three things (with the intent to gain or to cause loss, and without the consent of the trademark proprietor): (a) applies to goods a sign identical to, or likely to be mistaken for, a registered trade mark, (b) sells goods which bear such a sign, or (c) possesses in the course of a business any such goods with a view to committing an offence under (b).
The allegations against the appellants (which have yet to be proved) are that they are engaged in the bulk import and subsequent sale of goods bearing registered trademarks, manufactured abroad, in countries outside the EU.
A significant portion of the goods said to be sold by the appellants were manufactured (and the trademark applied) with the permission of the trademark proprietor, but were then sold without the trademark proprietors consent (for example because the goods were in excess of the numbers or below the quality permitted by the trademark proprietor).
The appellant describes these as grey market goods and distinguishes them from true counterfeits manufactured without the authorisation of the trademark proprietor.
At a preparatory hearing in the Crown Court, the appellants argued that while the sale of grey goods attracts civil liability, it is not covered by the offence in s.92(1), which properly construed applies only to true counterfeits.
The appellants argued that such a sign in subsection (1)(b) refers back to (1)(a), so that 1(b) applies only to goods where the trademark has been applied without the consent of the proprietor.
Any goods in the grey market category have had the trademark originally applied with the consent of the proprietor.
It is only the sale which the proprietor has not authorised.
It follows, they contend, that they are not, when it comes to paragraph (b), goods which bear such a sign.
Both the trial judge and the Court of Appeal (Criminal Division) rejected that submission.
The Supreme Court unanimously dismisses the appeals.
Lord Hughes gives the lead judgment, with which the rest of the Court agrees.
So called grey market goods are caught by the criminal offence in s.92(1), and the appellants contended construction of that section must be rejected.
The plain reading of such a sign in (1)(b) is that it refers back to the sign mentioned in (1)(a) i.e. a sign which is identical to, or likely to be mistaken for, a registered trade mark. 1(b) therefore covers the unauthorised sale of any
goods bearing a trademark (regardless of whether the trademark was applied to the goods in their manufacture with consent or not).
But this reference back to (1)(a) does not also incorporate into the meaning of such a sign the commission of an offence under (1)(a), i.e. the requirement that the sign has been applied without the consent of the proprietor.
Such a reading of (1)(b) is strained and unnatural and requires one to read such sign as such a sign, so applied.
The offences set out in (a), (b) and (c) are not cumulative, but separate, and the requirement in the opening lines of s.92(1) that the use made of the sign is without the consent of the proprietor applies to each type of use specified whether it is the application of a trademark to goods, the sale of goods bearing a trademark, or the possession for sale of goods bearing a trademark. [8 12] The predecessor of section 92, section 58A of the Trademarks Act 1938, also plainly covered grey market goods.
The appellants contention therefore that the more stringent test for intention in s.58A had the practical effect of confining criminal liability to cases of their category of true counterfeits must be rejected. [16 17] There is therefore no ambiguity in the language of the section to justify investigating the Parliamentary debate at the passing of the 1994 Act.
In any event, the appellants did not contend that Parliament considered a difference between true counterfeits and grey market goods.
Still less is there any point at which it can be suggested that Parliament plainly confined itself to criminalising fake goods and abjured the criminalising of grey market goods.
The authorities relied on by the appellants in support of their contention that such a distinction was plainly intended do not assist here, as they were not addressing any difference between fake goods and unauthorised goods on the grey market, and moreover came years after the passage of the 1994 Act so could not have been in mind at the time of its passing. [13 14] The appellants are correct that in the context of goods which a proprietor voluntarily puts into the European single market with his trademark attached, section 12 of the 1994 Act, transposing article 7 of Directive 89/104/EEC, has the effect that further objection to the use of the mark is limited to special cases, such as changes or impairments to the goods.
But that is true whichever of the rival constructions of section 92 is correct.
Where it applies, this concept of exhaustion means that there is no infringement of the mark as a matter of civil law, and thus no criminal offence.
But this sheds no light on the correct construction of section 92. [15] There is no reason to strain the construction of s.92(1) to exclude the sale of grey market goods.
This is not because of the supposedly adverse consequences which the Crown argued would follow, some of which would be as likely to ensue even on the correct interpretation of the section.
The distinction between the two categories suggested by the appellant is not cut and dried, but both are clear infringements of the rights of the trademark proprietor.
The plain meaning of the Act is that it is unlawful to put grey goods on the market just as it is to put fake ones on there.
In both cases the trader is setting out to profit from someone elses trademark without permission. [18] In the alternative, the appellants contend that the Crowns construction of section 92(1) involves a disproportionate breach of their rights under article 1, Protocol 1 to the European Convention on Human Rights.
But the 1994 Act does not deprive them of their property, as it does not stop them selling the goods, except if they wish to do so whilst still with the misleading and infringing trademark attached.
Such regulation of use or disposal of goods is permitted under the second paragraph of article 1 in the general interest, and is in any event a proportionate measure, striking a legitimate balance between the rights of the proprietor to protect his valuable trademark, and those of the person who wishes to sell good which he has bought. [19]


judgement:
The issue in this case is the proper approach of the immigration appellate authorities where the Secretary of State has decided that a national of the European Economic Area who is lawfully living in the United Kingdom should be removed on the ground of abuse of the right to reside here.
The abuse in question happened to be an alleged attempt to enter into a marriage of convenience but the issue would arise in respect of any abuse which would justify removal under article 35 of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (the Directive).
The facts
Ms Sadovska is a citizen of Lithuania.
She came to this country lawfully in February 2007 and has since been living and working here lawfully, exercising her rights under the Directive.
She lives in Edinburgh, where her sisters also live, and works as a cleaner.
Mr Malik is a citizen of Pakistan who came to this country lawfully with a Tier 4 student visa in May 2011.
His visa expired on 15 April 2013 and he has been here unlawfully ever since.
He too lives and worked in Edinburgh until 17 April 2014.
They say that they met at a disco, El Barrio in Edinburgh, in October 2012.
They spent that night together and saw one another from time to time afterwards, meeting members of one anothers families, but the relationship did not become a steady one until Valentines Day 2013.
Thereafter, they say, they saw one another as boyfriend and girlfriend.
It is common ground (and there is photographic evidence) that in December 2013, Mr Malik attended the wedding of Ms Sadovskas sister and that they were on the streets of Edinburgh together during the celebrations at Hogmanay 2013.
It is also common ground that Mr Malik booked a double room for two adults at a London hotel for four nights in January 2014 and that they were both in London at that time.
They say that they were on holiday together and that was when they decided to get married.
On 25 March 2014, they published notice of their intention to marry on 17 April 2014 at Leith Registry Office.
On 28 March 2014, they signed a one page statement about their relationship which included the following puzzling sentence: We have discussed the idea of living together in depth and also have touched upon the subject of marriage, but as of yet, none of these discussions have manifested into action.
That statement was enclosed in a letter dated 11 April 2014, sent by solicitors acting for Mr Malik (and, it would appear, also for Ms Sadovska) to the Home Office in Glasgow.
This explained that their client was an over stayer, but that he intended to marry an EEA national on 17 April 2014 and would be applying for recognition that he was exercising Treaty rights as a family member of an EEA national, so it was hoped that no enforcement action would be taken against him.
The letter recognised that officials might wish to interview their clients but hoped that this could be done before their wedding on 17 April.
It also stated that: We would like you to take this letter as a human rights allegation that both the applicant and the EEA national have established a family life in the United Kingdom and any decision to attempt to remove the applicant from the United Kingdom would be challenged on article 8 grounds and also on the grounds that the applicant [sci: attempt?] breaches our clients right to marry under article 12 of the ECHR.
Enclosed were copies of Mr Maliks passport, of Ms Sadovskas identity card, birth certificate and most recent payslip, a receipt from the Property Management Company in respect of a flat in Edinburgh for which they had signed a lease on 6 April 2014, three statements from two people who knew them, and their statement of 28 March.
Mr Malik and Ms Sadovska had indeed signed a lease for a flat in Edinburgh on 6 April 2014 and each gave this as their home address when interviewed on 17 April. (We are told that they still live together but at a different address.) On 16 April 2016 they bought wedding rings.
The solicitors letter was faxed to the Home Office on Friday 11 April.
The wedding was due to take place on the afternoon of the following Thursday.
Before that could happen, however, immigration officers arrived at the Registrars Office and asked to interview them.
They agreed.
Each was cautioned and agreed to be interviewed in English.
They were interviewed separately, Mr Malik from 14.55 to 16.20 and Ms Sadovska from 14.54 to 16.50, according to the immigration officers records.
After the interviews they were detained and thus unable to marry.
Ms Sadovska was released soon afterwards, but Mr Malik was detained until 11 June.
On the same day as the interviews, each was issued with a two part decision notice.
Mr Malik was issued with a notice that he was a person liable to removal as an over stayer, who had not applied for further leave to remain after his visa had expired and was thus liable to be detained pending a decision whether or not to give directions for his removal from the United Kingdom.
The notice explained that he had breached section 10(1)(a) of the Immigration and Asylum Act 1999, which provides that a person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if (a) having only a limited leave to enter or remain, he . remains beyond the time limited by the leave, and had therefore committed an offence under section 24(1)(b)(i) of the Immigration Act 1971.
Ms Sadovska was issued with a notice that she was a person liable to removal because her removal was justified on grounds of abuse of rights, specifically that she had attempted to enter into a marriage of convenience with Mr Malik.
The notice referred to regulation 19(3)(c), without explaining that this was contained in the Immigration (European Economic Area) Regulations 2006.
At the time, this provided that an EEA national who has entered the United Kingdom . may be removed if (c) the Secretary of State has decided that the persons removal is justified on grounds of abuse of rights in accordance with regulation 21B(2).
Regulation 21B(1) provided that The abuse of a right to reside includes (c) entering, attempting to enter or assisting another person to enter or attempt to enter, a marriage or civil partnership of convenience.
Regulation 21B(2) provided that The Secretary of State may take an EEA decision on the grounds of abuse of rights where there are reasonable grounds to suspect the abuse of a right to reside and it is proportionate to do so.
Regulation 24(2) provided that where a decision to remove was taken under regulation 19(3)(c), the person was to be treated as someone to whom section 10(1)(a) of the 1999 Act applied.
In each case, the notice was accompanied with notice of a decision to remove.
Both appealed to the First tier Tribunal which heard their appeals together on 4 August 2014 and promulgated a determination refusing them both on 19 August 2014.
Their appeals to the Upper Tribunal were heard on 5 February 2015 and a determination refusing them was promulgated on 9 February 2015.
Their appeals to the First Division of the Inner House of the Court of Session were refused on 17 June 2016: [2016] CSIH 51.
They now appeal to this court.
They make two complaints about the decisions of the tribunals and court below.
The first, and most important, relates to the burden of proof in a case such as this.
Under the heading Applicable law, the First tier Tribunal judge said this, at para 7: In immigration appeals, the burden of proof is on the appellant and the standard of proof required is a balance of probabilities.
In human rights appeals, it is for the appellant to show that there has been an interference with his or her human rights.
If that is established, and the relevant article permits, it is then for the respondent to establish that the interference was justified.
The appropriate standard of proof is whether there are substantial grounds for believing the evidence.
It is apparent from his determination that his whole approach was to require Ms Sadovska and Mr Malik to prove that their proposed marriage was not a marriage of convenience, rather than to require the Home Office to prove that it was.
Before the Upper Tribunal the appellants complaint was that the First tier Tribunal judge had taken the interviews as his starting point and given too much weight to the inconsistencies between them and had not considered them in the context of the totality of the evidence, as required by the decision of the Upper Tribunal in Papajorgji v Entry Clearance Officer, Nicosia [2012] UKUT 38, [2012] Imm AR 3 (at para 39).
Papajorgji was an extraordinary case in which an Albanian woman who had been married to and living with a Greek man for 12 years and had two children with him was refused a visa to accompany him on a visit to this country on the ground that theirs was a marriage of convenience, a belief which, as the Upper Tribunal said, was on the information supplied with the application simply ludicrous (para 32).
There was no burden on the claimant in an application for a family permit to establish that she was not party to a marriage of convenience unless the circumstances known to the decision maker gave reasonable ground for suspecting that that was the case.
Where there was such a suspicion the matter required further investigation and the claimant should be invited to respond to by producing evidential material to dispel it (para 27).
But suspicion was not enough.
The claimant was only disqualified if it was established that the marriage was one of convenience (para 37).
The question for the judge was in the light of the totality of the information before me, including the assessment of the claimants answers and any information provided, am I satisfied that it is more probable than not this is a marriage of convenience? (para 39)
Before the First Division, the appellants did complain that the tribunal had adopted the wrong approach to the burden of proof and that the respondent had failed to prove to the requisite high degree that the appellants were guilty of fraud.
The court dealt with the matter in this way, at para 20: However, as has often been said, once the evidence has been heard, questions of onus usually cease to be important (Sanderson v McManus 1997 SC (HL) 55, Lord Hope at 62).
The view of the UT in Papajorgji (at para 39) that the question, in the Tribunal context, was whether it is more probable than not that the marriage is one of convenience in [the] light of the totality of the information, accords with that dictum.
The court went on to say that the First tier Tribunal had considered all the information and reached a decision based upon it.
That decision did not depend upon onus but upon weighing the various factors in the balance.
In that context, there was only one standard of proof, that being the balance of probabilities (Scottish Ministers v Stirton 2014 SC 218, the Lord Justice Clerk (Lord Carloway) at paras 117 119).
It is perhaps worth noting that Lord Hopes observation in Sanderson v McManus, that questions of onus usually cease to be important once the evidence is before the court was in the context of a dispute between unmarried parents about a fathers contact with his child, when, as Lord Hope observed the matter then becomes one of overall impression, balancing one consideration against another and having regard always to the consideration which has been stated to be paramount (that is, the welfare of the child).
Even then, the court had to be able to come to the conclusion that making an order would be in the childs best interests.
This demonstrates that, when considering the burden of proof, it is necessary to understand what the issues are and what has to be established.
The appellants also complain that their interviews were unfair, oppressive and repugnant to public law standards.
The circumstances of being approached on their wedding day by uniformed immigration officers carrying batons and handcuffs meant that they were frightened.
They agreed to be interviewed in English but neither is fluent in English.
They had no time to contact their solicitor for advice, to obtain an interpreter, to produce evidence and contact witnesses.
They complain that both the First tier and the Upper Tribunal had thought the interviews were of central importance, yet they gave no weight to the circumstances in which they had taken place.
The law
It is of central importance in this case to consider the substantive law governing the respondents decisions and what had therefore to be established in each case.
It differs significantly as between the two appellants.
Ms Sadovska is an EEA national.
Her rights are therefore governed by the Directive, which the 2006 Regulations were designed to implement in UK law.
To the extent, if any, that the 2006 Regulations do not accurately transpose the requirements of the Directive, we have to give effect to the Directive rather than the Regulations and so it is appropriate to focus on the provisions of the Directive.
She has been living lawfully in the United Kingdom for a continuous period of more than five years.
This means that, under article 16 of the Directive, she has the right of permanent residence here.
None of the conditions attached to the right of residence of people who have been here for more than three months but less than five years, provided for in article 8 of the Directive, applies.
Article 28.2 lays down the general rule that a host member state may not take an expulsion decision against a Union citizen who has the right of permanent residence except on serious grounds of public policy or public security.
However, Recital 28 to the Directive states that: To guard against abuse of rights or fraud, notably marriages of convenience or any other form of relationships contracted for the sole purpose of enjoying the right of free movement and residence, member states should have the possibility to adopt the necessary measures.
This is therefore provided for in article 35, which is the crucial article in this case: Member states may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience.
Any such measure shall be proportionate and subject to the procedural safeguards provided for in articles 30 and 31.
Article 30 requires that the person concerned be notified in writing of the decision and informed precisely and in full of the reason for it and where and within what time that person may lodge an appeal.
Article 31 requires that the person have access to judicial and, where appropriate, administrative redress procedures to appeal against or seek review of any decision taken against them.
These shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which [it] is based.
They shall ensure that the decision is not
disproportionate
A Communication from the Commission to the European Parliament and the Council on guidance for the better transposition and application of Directive 2004/38/EC, dated 2 July 2009, has this to say about marriages of convenience, at para 4.2: Recital 28 defines marriages of convenience for the purposes of the Directive as marriages contracted for the sole purpose of enjoying the right of free movement and residence under the Directive that someone would not have otherwise.
A marriage cannot be considered as a marriage of convenience simply because it brings an immigration advantage, or indeed any other advantage.
The quality of the relationship is immaterial to the application of Article 35.
The definition in the first sentence is repeated in the Commissions more recent Handbook on addressing the issues of alleged marriages of convenience between EU citizens and non EU nationals in the context of EU law on free movement of EU citizens, dated 26 September 2014.
However, this goes on to explain that: the notion of sole purpose should not be interpreted literally (as being the unique or exclusive purpose) but rather as meaning that the objective to obtain the right of entry and residence must be the predominant purpose of the abusive conduct.
But it repeats that: On the other hand, a marriage cannot be considered as a marriage of convenience simply because it brings an immigration advantage, or indeed any other advantage (for example the right to a particular surname, location related allowances, tax advantages or entitlement to social housing for married couples).
Mr Malik is in a different position from Ms Sadovska.
As an over stayer he is, as noted above, liable to be removed under section 10(1)(a) of the 1999 Act.
However, had he succeeded in marrying Ms Sadovska, he would have become a family member within the meaning of article 2.2 of the Directive.
Under article 7.2, this would bring with it the right of residence for more than three months, provided that Ms Sadovska satisfied one of the conditions in article 7.1(a), (b) or (c).
As a worker she would satisfy condition (a).
Once he had been living here lawfully for five years, he too would acquire a right of permanent residence under article 16.2.
As with Ms Sadovska, of course, he would be liable to removal under article 35 if their marriage was one of convenience.
As they have not succeeded in marrying, Mr Malik is not a family member of an EU citizen.
However, article 3.2 requires Member States to facilitate the entry and residence of certain other persons, who include (b) the partner with whom the Union citizen has a durable relationship, duly attested.
Article 3.2 also requires that The host member state shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.
Finally, of course, both Ms Sadovska and Mr Malik have rights under the European Convention on Human Rights.
Article 8.1 guarantees the right to respect for private and family life, although under article 8.2 interference is justified if it is in accordance with the law and necessary in a democratic society to achieve a legitimate aim.
Article 12 guarantees the right of men and women of marriageable age to marry and to found a family, according to the national laws governing the exercise of [the] right.
Analysis
It is clear from the provisions of the Directive quoted above that Ms Sadovska has a right of permanent residence in the United Kingdom.
As an EU citizen, under article 27.1, her freedom of movement can only be restricted on grounds of public policy, public security or public health.
As a permanent resident, under article 28 she could only be removed if those grounds are serious.
It is not suggested that she can be removed under article 28 on any of those grounds.
She can therefore only be removed, under article 35, if it is established that she has entered, or attempted to enter, into a marriage of convenience.
Furthermore, although the Regulations permit the respondent to take steps on the basis of reasonable grounds to suspect that that is the case, Ms Sadovska is entitled to an appeal where the facts and circumstances must be fully investigated.
That must mean, as held in Papajorgji, that the tribunal has to form its own view of the facts from the evidence presented.
The respondent is seeking to take away established rights.
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 respondent to establish that it was indeed a marriage of convenience.
For this purpose, marriage of convenience is a term of article Although it is defined in the Directive and the 2009 Communication as a marriage the sole purpose of which is to gain rights of entry to and residence in the European Union, the 2014 Handbook suggests a more flexible approach, in which this must be the predominant purpose.
It is not enough that the marriage may bring incidental immigration and other benefits if this is not its predominant purpose.
Furthermore, except in cases of deceit by the non EU national, this must be the purpose of them both.
Clearly, a non EU national may be guilty of abuse when the EU national is not, because she believes that it is a genuine relationship.
In the case of a person exercising EU law rights, the tribunal must also be satisfied that the removal would be a proportionate response to the abuse of rights established.
So it would be one thing to find that the proposed marriage had been shown to be one of convenience, and therefore that it was right to prevent it, but quite another thing to find that expelling Ms Sadovska from the country where she had lived and worked for so long and had other family members living was a proportionate response to that.
The First tier Tribunal did not analyse her rights in this way.
It was quite simply incorrect to deploy the statement that in immigration appeals the burden of proof is on the appellant, correct though it is in the generality of non EU cases, in her case.
She had established rights and it was for the respondent to prove that the quite narrow grounds existed for taking them away.
Nor did the determination address the issue of proportionality.
It is impossible for this court to conclude that, had the matter been approached in the right way, the decision would inevitably have been the same.
The position of Mr Malik is different, for he has no established rights, either in EU law or in non EU immigration law.
In order to benefit from the Directive, he would have to show that he has a durable relationship with Ms Sadovska.
However, article 3.2 requires the respondent to justify any refusal of entry or residence in such cases.
So if he can produce evidence of a durable relationship (a term which is not defined in the Directive), it would be for the respondent to show that it was not or that there were other good reasons to deny him entry.
It is not impossible that a tribunal, properly directing itself, would reach different conclusions in the case of these two appellants.
But it is impossible for this court to conclude that, had the matter been approached in the right way, the decision relating to Mr Malik would inevitably have been the same.
It follows that the appeal must be allowed and the case remitted for a full re hearing by the First tier Tribunal.
In seeking to establish its case, the respondent will no doubt concentrate on the interviews, the discrepancies between the appellants accounts, and the gaps in Ms Sadovskas knowledge of Mr Maliks family, together with the sentence in their statement of 28 March that their thoughts of living together and marriage had not yet manifested into action (which on 28 March was strictly true in that they were not yet living together or married but they had given notice of intention to marry).
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 Sadovskas 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.
Their legal and their factual cases must be considered separately.
Having reached the firm conclusion that the case must be remitted to the First tier Tribunal to be heard afresh, because a wrong approach was taken to the requirements of EU law in this case, it is unnecessary to consider whether the appellants Convention rights add anything further to their claims.
But for my part I would not accept their argument that, because their marriage was frustrated by the respondents actions, their case should be approached as if they were married, which would, of course, enhance Mr Maliks 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.

dataset_name: UK-Abs

summary:
An EU citizen with a permanent right of residence in a host member state may have that right removed in the case of abuse of rights or fraud, such as marriages of convenience.
The issue in this appeal is which party bears the burden of proof of establishing that a proposed marriage is one of convenience.
Ms Sadovska is a citizen of Lithuania.
She moved to the United Kingdom in 2007 and has lived and worked here lawfully since, acquiring a right of permanent residence as an EU citizen pursuant to Directive 2004/38/EC (the Directive).
Mr Malik is a citizen of Pakistan who entered the UK with a student visa in May 2011 and has remained here unlawfully after his visas expiry in April 2013, in breach of section 10(1)(a) Immigration and Asylum Act 1999.
Ms Sadovska and Mr Malik (the appellants) maintain that they have been in a relationship with each other since February 2013, and decided to marry in January 2014.
On 11 April 2014, the appellants solicitors notified the Home Office in Glasgow that they intended to marry on 17 April 2014 at Leith Registry Office and invited officials to interview them before the wedding.
Immigration officers arrived at the Registrars Office, interviewed the appellants separately, and then detained them before they were able to marry.
Both were then served with notice that they were persons liable to removal from the UK: Mr Malik by having stayed after the expiry of his visa and Ms Sadovska by giving the Secretary of State reasonable grounds to suspect the abuse of her EU right of residence by attempting to enter into a marriage of convenience, contrary to regulation 19(3)(c) Immigration (European Economic Area) Regulations 2006.
The appellants appealed to the First tier Tribunal.
The judge held that the burden of proof was on the appellants to establish that their proposed marriage was not a marriage of convenience, and that they had failed to do this, having regard to the inconsistencies in their accounts at interview.
The appellants appealed unsuccessfully to the Upper Tribunal and to the First Division of the Inner House, arguing that the tribunal had adopted the wrong approach to the burden of proof, and that the Secretary of State had failed to prove that the appellants were guilty of fraud, when the totality of the evidence relating to their relationship and the circumstances in which the interviews had taken place was taken into account.
The Supreme Court unanimously allows the appeal and remits the case for a full re hearing by the First tier Tribunal.
Lady Hale gives the only substantive judgment.
It was important to identify the different rights the appellants individually enjoyed, and thus what the Secretary of State needed to establish in order to remove them: Ms Sadovska had a right of permanent residence in the UK and could not be expelled unless she had abused her rights within the meaning of article 35 of the Directive.
A Communication in 2014 from the European Commission giving guidance on the Directive explained that a marriage of convenience was a marriage contracted with the predominant purpose of enjoying the right of free movement.
It was not enough that the marriage might bring incidental immigration and other benefits, and the predominant purpose must be the purpose of both parties [21 24, 29].
Mr Malik was liable to be removed as an over stayer.
Had he succeeded in marrying Ms Sadovska he would have acquired a right of residence in the UK under the Directive as a family member of an EU national working here.
The Directive also required member states to facilitate the entry and residence of the partner of an EU citizen if it was a durable relationship, duly attested [25 26].
Both appellants enjoyed rights under articles 8 and 12 of the European Convention on Human Rights to a private and family life, and to marry and found a family [27].
The 2006 Regulations permitted the Secretary of State to take steps to remove Ms Sadovska on the basis of reasonable grounds to suspect that she had entered or attempted to enter a marriage of convenience, but she was entitled to an appeal where the facts and circumstances were fully investigated.
The tribunal had to form its own view of the facts from the evidence presented.
It was not for her to establish that her relationship with Mr Malik was a genuine and lasting one, but for the Secretary of State to establish that it fell within the definition of a marriage of convenience [28].
The tribunal had also to be satisfied that the removal of Ms Sadovska from the country where she had lived and worked for so long with other family members would be a proportionate response to the abuse of rights, rather than merely the prevention of the marriage [30].
As the tribunal had not analysed Ms Sadovskas rights this way, it was not possible for the Supreme Court to conclude that the Secretary of State had proved that the narrow grounds for taking away her established rights existed [31].
Mr Malik had no established rights but if he could produce evidence of a durable relationship with Ms Sadovska, it would be for the Secretary of State to show that it was not, or that there were other good reasons to deny him entry.
Again, the Supreme Court could not conclude that, had his case been approached in the right way, the outcome would have inevitably been the same [32 33].
Accordingly, the burden of proof of establishing that the proposed marriage is one of convenience falls on the Secretary of State.
The appeal is allowed and the case remitted for a full rehearing by the First tier Tribunal, at which the inconsistencies in the appellants interviews will be considered along with their evidence supportive of a genuine relationship dating back several months, and the circumstances in which the interviews took place will also be taken into account [34].
The appellants ECHR rights did not add anything further to their claims in the light of this conclusion.
Such rights would not in any event prevent a state from taking steps to prevent sham marriages, if it could show that the marriage would indeed be a sham [35].


judgement:
In circumstances in which at the time of a divorce a spouse, say a wife, is awarded capital which enables her to purchase a home but later she exhausts the capital by entry into a series of unwise transactions and so develops a need to pay rent, is the court entitled to decline to increase the order for the husband to make periodical payments to her so as to fund payment of all (or perhaps even any) of her rent even if he could afford to do so?
Mr Mills (whom it will be convenient to describe as the husband notwithstanding his divorce from Mrs Mills, the wife, in 2002) appeals against an order for upwards variation of an order for periodical payments against him in favour of the wife.
The order for variation was made by the Court of Appeal (Longmore LJ and Sir Ernest Ryder, Senior President of Tribunals) on 1 February 2017: [2017] EWCA Civ 129.
By that order, the Court of Appeal allowed the wifes appeal against the dismissal of her application to vary the order for periodical payments by Judge Everall QC (the judge) in the Central Family Court in London on 9 June 2015.
The husband and wife are each aged 52.
They were married in 1987.
The wife is a qualified beauty therapist.
In the early years of the marriage she worked, self employed, in that capacity.
The husband built up a surveying business within two companies which he and the wife owned in equal shares.
They had one child, a son, now adult.
In 1996 the wife unfortunately suffered a late miscarriage, which precipitated a long period of painful gynaecological difficulties for her.
In 2000 the husband left the home in Guildford.
On 7 June 2002, in the ensuing divorce proceedings, financial issues were resolved within a consent order.
In addition to provision for their son, who was to continue to make his home with the wife and have contact with the husband, the order provided that: i) the home, vested in the joint names of the parties, should be sold; ii) its net proceeds should be divided in accordance with a formula which in the event yielded 230,000 for the wife in settlement of all her capital claims against the husband and 23,000 for him; the wife should transfer to the husband her interest in policies worth iii) 23,000 and her shares in the surveying companies; and iv) the husband should make periodical payments to her at the annual rate of 13,200 (not index linked) on the open ended basis, namely during their joint lives until her remarriage or further order in the interim.
The wife therefore received the vast preponderance of the parties liquid capital.
The value of the two companies was not identified.
At the time of making the consent order the wife had represented that ill health was disabling her from working and that she would need 350,000 with which to purchase a suitable home for herself and their son.
The husband had conceded that she then had no capacity to raise a mortgage but had suggested, by contrast, that she could purchase a suitable home for 230,000 or less, in other words free of mortgage.
In the event, later in 2002, she proceeded to purchase a house in Weybridge for 345,000 by deploying in effect her entire share of the proceeds of the home and by raising the balance of 125,000 on mortgage.
When he learnt of the wifes purchase, the husband, by solicitors, expressed surprise at its high cost and concern about her ability to service a mortgage, let alone one of such size.
By solicitors, she replied only that she had not been able to secure reasonably priced accommodation in an area in which it would in her opinion be best for their son to grow up.
wife had begun to work again as a beauty therapist, but part time.
In 2006 the wife sold the house in Weybridge at the price for which she had bought it, namely 345,000.
But the sum owing on mortgage had risen by 93,000 to 218,000.
Having received written and oral evidence from the wife, the judge found that she had been unable satisfactorily to explain why the sum owing had increased or in what way the increase had been spent.
Upon the sale of the house in Weybridge the wife bought a flat in Wimbledon for 323,000, with a deposit of 48,000 and a mortgage of 275,000.
The judge therefore calculated that, net of collateral costs of the transactions, about 62,000 of the proceeds of sale had not been used in the purchase of the flat; but he noted that the wife had refurbished it to some extent.
It is clear that, by the time of her purchase of the house in Weybridge, the
In 2007 the wife sold the flat in Wimbledon for 435,000.
The sum then owing on mortgage had risen only marginally, namely to 277,000.
Instead she bought a flat in Battersea for 520,000, with a deposit of 78,000 and a mortgage of 442,000.
The judge therefore calculated that, net of the collateral costs, about 44,000 of the proceeds of sale had not been used in the purchase of the second flat.
It is unclear from his judgment how the wife was able to secure, and then to service, a borrowing as high as 442,000.
In 2009 the wife sold the flat in Battersea for 580,000 and began to rent accommodation.
The judge calculated that, after repaying the mortgage of 442,000 and meeting the collateral costs, the wife received about 120,000 from the proceeds of sale.
Between 2009 and 2015 the wife rented six successive properties in London and Surrey.
By April 2015, when the judge heard the case, the wife had no capital.
On the contrary, she had overdrafts of 4,000, credit card liabilities of 18,000 and a tax liability of about 20,000.
Before the judge were cross applications.
The husband had applied for discharge of the order for periodical payments on his payment to the wife of a modest capital sum, say of 26,000; or for a fixed period to be set on her continued receipt of periodical payments and/or for a downwards variation of their amount.
The wife had cross applied for an upwards variation of their amount.
Both applications were made under section 31(1) of the Matrimonial Causes Act 1973 (the Act).
Section 31(7) provides: In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, [which] shall include any change in any of the matters to which the court was required to have regard when making the order to which the application relates, and (a) in the case of a periodical payments . order made on or after the grant of a decree of divorce . , the court shall consider whether in all the circumstances and after having regard to any such change it would be appropriate to vary the order so that payments under the order are required to be made only for such further period as will in the opinion of the court be sufficient to enable the party in whose favour the order was made to adjust without undue hardship to the termination of those payments; The matters to which the court was required to have regard when making the order in 2002, even though it was made by consent, were those set out in section 25(2) of the Act.
In his judgment, which was reserved, the judge described the wifes oral evidence as not fully satisfactory.
He explained that she had been unable to give him a clear picture of her financial circumstances in the years since 2002; that, apart from her failure to explain the dramatic increase in the size of the mortgage on the house in Weybridge, she had been unable to identify the size of her income from her part time work in the earlier years, first as a beauty therapist and then for an estate agent.
He accepted that between 2004 and 2010 she had undergone no less than seven surgical procedures referable to her gynaecological difficulties and that they had affected her earning capacity at that time.
He found, however, that she had exaggerated the continuing impact, five years later, of those difficulties upon her earning capacity.
In 2010 she had reverted to work as a beauty therapist.
Her accounts for the last available year, namely to April 2014, disclosed an annual income net of tax of about 18,500.
She had then been working about three days each week.
The judge rejected her contention that ill health precluded her from working for a fourth day but accepted that she might not be able to attract the extra clients to occupy it.
He therefore ascribed to her annual net earnings of only 18,500.
The husband contends that it was a somewhat conservative figure; but it is appropriate for an appellate court to adopt it without qualification.
The judge found that the husband, by contrast, gave reliable and truthful evidence in all respects.
He had remarried and was living with his second wife, their nine year old son and an adult step daughter in a house in Guildford in which, subject to a substantial mortgage, he had a half interest.
As in 2002 he had little liquid capital.
The judge studied his earned income from the surveying companies.
They had suffered a reverse in 2012 but had slowly recovered since then and, as the husband frankly conceded at the hearing, they were likely to be thriving by 2025.
The judge ascribed to the husband an existing net annual income of 55,000 inclusive of a small salary which one of the companies chose to pay to his current wife.
It may again have been a somewhat conservative figure; but it is again appropriate for an appellate court to adopt it without qualification.
At the hearing the wifes then counsel put before the judge a breakdown of what he suggested to be the amount of her necessary annual expenditure.
The judge accepted it as very modest.
Exclusive of figures referable to the adult son, the annual total was 35,792, of which 10,200 was for rent.
Following deduction of her earnings of 18,500, the wifes annual need was therefore for 17,292.
But the judges decision was not to vary, whether upwards or downwards, the existing order for periodical payments in the annual sum of 13,200.
In other words he countenanced a shortfall of 4,092 between the wifes annual need and the husbands obligation to meet it.
The answer lies in the judges analysis of the wifes loss of the capital sum which had been awarded to her in 2002.
The judge found that: the award in 2002 would then have enabled the wife to buy a home it had however been reasonable for her to be ambitious and to secure i) free of mortgage; ii) a mortgage for the purchase of the house in Weybridge; iii) thereafter she had not managed her finances wisely; iv) like others at that time, she had committed herself to borrowings which were too high; v) or wanton; vi) but her needs had been augmented by reason of the choices which she had made.
In the light of those findings the judge decided to reject the husbands submission that the wifes need to pay rent of 10,200 should be entirely eliminated from the total annual need which it would be appropriate for him to meet.
Nevertheless it was it would be wrong to describe her approach to finances as profligate fair that the husbands contribution to the wifes needs should not include a full contribution to her housing costs.
If, however arbitrarily, one omits to ascribe any part of the wifes earnings to the payment of rent of 10,200 and treats the rent as entirely subsumed within her residual annual need of 17,292, it is easy to see that the effect of the judges decision to countenance a shortfall from that figure of 4,092 was to oblige the husband to pay 6,108 towards the rent, or 60% of it.
Although the judge had described the wifes schedule of annual needs totalling 35,792 as very modest and indeed as basic, he said that the husbands contribution should do no more than to enable her to meet her bare minimum needs, which, so he therefore implied, were properly to be reflected in an even lower figure.
The wife, he said, will have to adjust her expenditure to live within her means.
The judge found on clear evidence that the husband could afford to continue to make periodical payments in the annual sum of 13,200.
Indeed, although there was no cause for him to make a finding to this effect, it also seems reasonably clear that the husband could have afforded to pay the extra annual sum of 4,092 if it had been otherwise appropriate to order him to do so; it was certainly no part of the judges reasoning that the husband could not have afforded to pay it.
In accordance with his duty the judge then turned to consider the husbands application for him to set a fixed period upon the wifes continued receipt of the periodical payments.
But, applying section 31(7)(a) set out in para 14 above, the judge concluded, unsurprisingly, that he could not identify any fixed period as being sufficient to enable the wife to adjust without undue hardship to their termination.
It followed that the order should continue to require them to be paid on the open ended basis, namely during their joint lives until her remarriage or further order in the interim.
Although the open ended basis does not specify a fixed term for the life of the order, the circumstances which it identifies as bringing it to an end, in particular the potential for a further order ending it at any time, show how misleading (indeed, as the husband himself says, how unattractive) it is for some non lawyers to describe such an order as a meal ticket for life.
Inevitably the judge also concluded that any appropriate capitalisation of periodical payments in that continuing sum and on that continuing basis appeared to be beyond the husbands means.
So the judge dismissed both the husbands application and the wifes cross application.
Both the husband and the wife sought permission from the Court of Appeal to appeal against the respective dismissals of their applications.
The wife secured permission to do so but, in circumstances which rendered him aggrieved but are no longer relevant, the husbands application for permission was not granted likewise but was listed to be heard by the court at the time when it was to hear the wifes substantive appeal.
At the conclusion of the hearing on 1 February 2017 Sir Ernest Ryder gave an impromptu judgment, with which Longmore LJ agreed.
In his judgment Sir Ernest said that i) the judge did not give any reason why any part of the trimmed budget, that is the wifes basic needs budget, should be cut in explanation of why that shortfall should not be met; ii) budget that he, the judge, had accepted in evidence; and iii) his decision that she would have to adjust her expenditure to reduce those needs was a conclusion [which] required reasoning that is not in the judgment.
he did not explain why she should live below the basic needs
So the Court of Appeal allowed the wifes appeal by varying the order for periodical payments upwards from the annual sum of 13,200 to that of 17,292, backdated to the date of the judges judgment.
It refused the husbands application for permission to appeal to it on the ground that his proposed appeal had no prospect of success.
The husband filed a notice of appeal to this court.
He challenged the increase in the order for periodical payments directed by the Court of Appeal.
But he also purported to challenge its refusal to discharge the order for periodical payments; and, alternatively, its refusal to set a fixed period on the wifes continued receipt of them and/or to vary the amount of them downwards.
In these respects he was, however, purporting to challenge the Court of Appeals refusal to permit him to appeal to itself on these grounds and, by section 54(4) of the Access to Justice Act 1999, no appeal can be brought against a refusal of permission.
So the order of this court was to limit its permission for him to appeal to the single ground whether, in light of the fact that provision had already been made for the wifes housing needs in the capital settlement, the Court of Appeal had been entitled to interfere with the judges determination not to make full allowance for her need to pay rent in the continuing order for periodical payments.
Unfortunately the husbands advisers considered that the terms of the limited grant of permission could in some way prove broad enough to enable them to make submissions at the hearing along the wider lines of his impermissible challenge to the Court of Appeals refusal to grant him permission to appeal to it.
So at an early stage of the hearing the court had to re emphasise the limited ambit of its inquiry in this particular case.
With the greatest of respect to the Court of Appeal, and with (I believe) a full appreciation of the heavy work load under which it currently labours, it erred in saying that the judge had given no reason for declining to increase the order for periodical payments so as to enable the wife to meet all her basic needs.
The judge gave a clear reason which is summarised in paras 20 and 21 above.
So the question which the Court of Appeal should have addressed, and which this court should now address, is the question set out in para 1 above.
the Court of Appeal.
First, Pearce v Pearce [2003] EWCA Civ 1054, [2004] 1 WLR 68.
At the time of the original order in 1997 the wife had owned a flat in Chelsea free of mortgage.
Later she sold the flat; depleted the proceeds by an unfortunate speculation in Ireland; and, upon returning to live in London, could only afford to buy a flat in Fulham subject to mortgage.
The original order had also provided for the husband to make periodical payments to the wife; and the subsequent order under appeal in 2003 was to capitalise her entitlement to periodical payments, ie to discharge the order for them upon payment to her by the husband of a lump sum in lieu of them pursuant to section 31(7A) and (7B) of the Act.
The major significance of the decision of the Court of Appeal lies in its approach to the exercise of capitalising an order for periodical payments.
For present purposes, however, its significance lies in its removal of the wifes mortgage repayments from its calculation of the amount of the periodical payments to which, in the absence of capitalisation, she would then have been entitled and therefore of the amount of the lump sum to be paid by the husband in lieu of them.
Thorpe LJ said at para 36 that the judge In addressing the question, the court must consider three earlier decisions of should not have allowed the wife to discharge her mortgage at the husbands expense.
Such an indemnity violates the principle that capital claims compromised in 1997 could not be revisited in 2003.
There is simply no power or discretion to embark on further adjustment of capital to reflect the outcome of unwise or unfortunate investment on one side or prudent or lucky investment on the other.
Second, North v North [2007] EWCA Civ 760, [2007] All ER (D) 386 (Jul).
In 1981 an order by consent had provided the wife with ownership of a mortgage free house in Sheffield and of ground rents which generated a comfortable income for her.
The order had also included provision for the husband to make periodical payments to her in a nominal sum.
In 2000 the wife sold her assets in England and moved to Sydney with relatively disastrous financial consequences, which led her to apply for an upwards variation of the order for periodical payments.
The Court of Appeal set aside an order capitalising her entitlement to them in the sum of 202,000 and, although not visible in the transcript or in the report, apparently substituted a substantially lower figure.
Thorpe LJ said: 32.
In any application under section 31 the Applicants needs are likely to be the dominant or magnetic factor.
But it does not follow that the respondent is inevitably responsible financially for any established needs.
He is not an insurer against all hazards nor, when fairness is the measure, is he necessarily liable for needs created by the applicants financial mismanagement, extravagance or irresponsibility 33.
Thus in the present case the wifes failure to utilise her earning potential, her subsequent abandonment of the secure financial future provided for her by the husband, her choice of a more hazardous future in Australia, together with her lifestyle choices in Australia, were all productive of needs which she had generated and for which the husband should not as a matter of fairness be held responsible in law.
And third, Yates v Yates [2012] EWCA Civ 532, [2013] 2 FLR 1070.
Under a consent order the wife had received a substantial lump sum on the basis that she would use half of it in discharging a mortgage on her home.
In the event she had repaid only part of the mortgage debt and had invested in a non income bearing bond the sum which she had thus elected not to apply to full clearance of the mortgage.
When, later, a judge came to capitalise her right to continuing periodical payments, he included in his calculation of her need the amount of interest payable by her in respect of the residual mortgage debt.
The Court of Appeal held that the inclusion had been wrong.
Thorpe LJ said: Lewison LJ said: 12.
It seems to me little more than common sense that if a recipient of a lump sum twice the size of the mortgage on the final matrimonial home elects to hold back capital made available for the mortgage discharge in order to invest in a bond that bears no income, she cannot look to the payer thereafter for indemnity or contribution to the continuing mortgage interest payments.
That seems to me to be an absolutely self evident point. 21. the need to pay the mortgage at all arose from her own choice not to apply the lump sum in discharging the existing mortgage The financial consequences of her investment choice are her responsibility.
It is wrong in principle for the husband to have to continue to fund the mortgage.
Mr Feehan QC, who, like Ms Dunseath, nobly appears for the wife without fee, seeks to distinguish the mortgage instalments disallowed in the cases of Pearce and Yates from payments of rent.
I see no relevant distinction.
He also submits that, unlike the present case, all three of the decisions concerned the capitalisation of an entitlement to periodical payments and that what was there rightly disallowed was the insinuation into the lump sum thus payable of a sum more reflective of an impermissible second claim for capital provision than of a permissible claim for conversion into capital of an income entitlement.
Mr Feehan relies in particular on the statement of Thorpe LJ in the Pearce case, quoted at para 36 above.
I reject the submission.
As the Court of Appeal valuably established in that case, the first step in the exercise of capitalisation is a calculation of the amount of periodical payments to which, in the absence of capitalisation, the payee would then have been entitled.
It was in the course of making this calculation that in the three decisions the objectionable elements of the claim were disallowed.
Even had there been no capitalisation of the entitlement to periodical payments, those elements would therefore have been disallowed in quantifying the amount of the ongoing order for periodical payments.
The cases of Pearce, North and Yates were correctly decided.
The answer to the question posed in para 1 above is yes.
By its terms that question asks only whether a court would be entitled, rather than obliged, in the circumstances there identified to decline to require the husband to fund payment of the rent.
Its reference to the courts entitlement to do so serves to respect the wide discretion conferred upon it by section 31(1) and (7) of the Act in determining an application for variation of an order for periodical payments.
But, in the passages quoted above, the Court of Appeal has expressed itself in forceful terms; and a court would need to give very good reasons for requiring a spouse to fund payment of the other spouses rent in the circumstances identified by the question.
A spouse may well have an obligation to make provision for the other; but an obligation to duplicate it in such circumstances is most improbable.
The judge was clearly entitled to decline to vary the order for periodical payments so as to require the husband to pay all of the wifes rent.
The order of the Court of Appeal should be set aside and his order restored.

summary:
The Appellant and Respondent are former husband and wife.
They divorced in 2002 after a marriage of approximately fifteen years, and the financial issues in the divorce were resolved by way of a consent order.
Under the terms of that order the wife received 230,000 in settlement of her capital claims against the husband, and it was also agreed that the husband would make periodical payments to her at an annual rate of 13,200.
It was reasonably anticipated by the husband that the wife would use the 230,000 to purchase a suitable home for herself and their son without a mortgage, as the wife had been suffering from ill health which made it difficult for her to work.
In the event, however, the wife did manage to take out a mortgage, and she duly purchased a more expensive home for 345,000.
Between 2002 and 2009 the wife sold and purchased a series of different properties, and with each purchase the amount which she borrowed increased.
In addition, she did not necessarily reinvest all of the sale proceeds from one property into the next and seemingly spent the balance, with the result that the amount of capital she had decreased over time.
Eventually, in 2009 the wife sold her final property and began to rent accommodation.
By April 2015, when the first instance judge heard the case, the wife had no capital, and she had debts of around 42,000.
The hearing before the judge was to determine two cross applications made under s.31(1) of the Matrimonial Causes Act 1973.
The husband had applied for the discharge or downwards variation of the order for periodical payments, whereas the wife had applied for the order for periodical payments to be varied upwards.
In determining the applications the judge noted that there was a shortfall of 4,092 per annum between the wifes current needs and, when coupled with her own earnings, the existing level of the periodical payments.
However, he also held that, although the wifes actions had not been profligate, she had not managed her finances wisely and her current financial needs, in particular her need to pay rent, had been increased by the choices which she had made.
Consequently, the judge considered that it would be unfair to the husband if he had to make a full contribution to the wifes rental costs.
The judge therefore declined to vary the order for periodical payments either upwards or downwards.
This meant that the husband would continue to contribute to around 60% of the wifes rental costs, and the wife would have to adjust her expenditure to accommodate the shortfall.
The wife appealed against this decision to the Court of Appeal, and was successful.
The Court of Appeal considered that the judge had not given sufficient reasons why all of the wifes basic needs should not be met by the periodical payments from the husband, and increased the level of periodical payments to cover her shortfall, i.e. to 17,292.
The husband now appeals against this decision to the Supreme Court.
The Supreme Court unanimously allows the appeal, concluding that the judge was entitled to decline to vary the order for periodical payments so as to require the husband to pay all of the wifes rental costs.
Lord Wilson gives the judgment with which Lady Hale, Lord Carnwath, Lord Hughes and Lord Hodge agree.
The husband was granted permission to appeal to the Supreme Court only on a single ground whether, in light of the fact that provision had already been made for the wifes housing needs in the capital settlement, the Court of Appeal was entitled to interfere with the judges decision not to increase the periodical payments so as to cover all of the wifes current rental costs [32].
The Court of Appeal had erred in saying that the judge had given no reason for declining to increase the order for periodical payments the judge had given a clear reason, namely that the wifes unwise decisions in relation to her capital had increased her basic needs by requiring her to pay rent, and that it was consequently unfair to expect the husband to meet these increased needs in full [33].
The Court of Appeal should have considered the impact of the original capital payment on the wifes current need to pay rent, and this involved a consideration of three earlier Court of Appeal authorities: Pearce v Pearce [2003] EWCA Civ 1054, North v North [2007] EWCA Civ 760, and Yates v Yates [2012] EWCA Civ 532 [34 38].
These cases were correctly decided and in light of this the judge was entitled, although not obliged, to decline to require the husband to fund payment of the rent in full.
This respects the wide discretion conferred upon the court under section 31(1) and (7) of the Matrimonial Causes Act 1973 in determining an application for variation of an order for periodical payments.
Moreover, a court would need to give very good reasons for requiring a spouse to fund payment of the other spouses rent in the circumstances of this case.
A spouse may well be obliged to make provision for the other spouse, but an obligation to duplicate that provision in situations such as this is improbable [40].