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Briefing: what happens when you are accused of entering a sham marriage?

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Migrants who would not otherwise have the right to live in the UK can acquire that right by getting married to a British national, EU citizen or another migrant who is settled here. In theory, that route is open to abuse by couples who are not really in a genuine relationship but marry in order to gain what lawyers call an “immigration advantage”. In reality, the Home Office has never managed to produce much evidence that sham marriages are a problem.

Officials are, nevertheless, eternally vigilant against the possibility that foreigners marrying are doing so for visa reasons and there is a process for investigating marriages considered suspicious. This post discusses that investigation process and the hard law on sham marriages (and their close cousin, “marriages of convenience”). It follows on from my previous post about restrictions on migrants getting married in the UK.

What is a sham marriage?

A definition of “sham marriage” can be found at section 24(5) of the Immigration and Asylum Act 1999:

a marriage is a “sham marriage” if either or both parties is not a relevant national [i.e. not a British or EEA national], there is no genuine relationship between the parties to the marriage, and either or both parties enter into marriage for one or more of these purposes: avoiding the effect of immigration law/rules, and/or enabling a party to obtain a right conferred by immigration law/rules [abridged]

Complicating things is the fact that EU law uses the term “marriage of convenience” instead:

spouse/civil partner/durable partner” does not include a party to a marriage of convenience/a party to a civil partnership of convenience/a party to a durable partnership of convenience (Reg.2 of EEA Regulations 2016)

Using different terms in EU law and in British immigration law is problematic because, as we will see below, marriages of convenience have been said to exist even when a couple is in a genuine relationship. In other words, it is easier for the Home Office to “crack down” on non-EU nationals marrying EU nationals than those marrying British or settled citizens. 

The term “marriage of convenience” is defined at Recital 28 of the EU Free Movement Directive (Directive 2004/38/EC) as

a relationship contracted for the sole purpose of enjoying the right of free movement and residence

The Home Office guidance on Marriage Investigations says:

the important factor in a marriage of convenience is the absence of intentions of the married couple to be involved in a genuine and subsisting marriage, or relationship akin to marriage, and to create a family unit.

And also that

marriages of convenience are, for immigration purposes, synonymous with sham marriages.

If the Home Office were to find that a marriage was not genuine, this could have consequences beyond the simple refusal of an application. Under the EEA Regulations 2016, both EEA and non-EEA nationals can be removed from the UK on the basis of having entered into a sham marriage.

One could also potentially face criminal prosecution under sections 24A and 25(1) of the Immigration Act 1971 for obtaining leave by deception or assisting unlawful immigration.

Who is at risk of being accused of a sham marriage?

As we saw in my last post, under the Immigration Act 2014 the Register Office must inform the Secretary of State if one or both of the members of a couple wishing to marry are not “exempt”. Those exempt are:

  • British citizens
  • EEA or Swiss nationals,
  • People with permanent residence/indefinite leave to remain
  • People exempt from immigration control
  • People with a valid marriage visitor or fiancé/proposed CP visa

So, when at least one of the members of the couple is not “exempt”,  the Register Office will inform the Home Office that the couple have given notice of their intention to get married.

Not all couples will be investigated, however. The Secretary of State should only investigate if he has reasonable grounds to suspect a sham marriage.

The sole purpose of the investigation is to decide whether the marriage is a sham (section 48(6) of the 2014 Act). There is a list of factors which the Home Office will consider when deciding whether it suspects a sham marriage at pages 7 and 8 of the Marriage and Civil Partnership Referral and Investigation Scheme guidance:

whether either party to the proposed marriage or civil partnership: 

  • Is an immigration overstayer or absconder or otherwise in breach of the conditions of their leave. 
  • Entered the UK illegally, or has been removed from the UK and should not be here. 
  • Has been convicted of a criminal offence or there is other evidence of links to criminality. 
  • Is recorded as deceased. 
  • Is currently or has previously been the subject of a section 24/24A report. 
  • Has previously obtained leave, or sought to do so, on the basis of deception or of false or forged documents. 
  • Has an outstanding immigration application based on their relationship with another spouse/partner, or has previously sponsored, or been sponsored by, another spouse/partner to come to or remain in the UK. This factor may also be linked to a previous marriage or civil partnership which, if not dissolved, would be a legal barrier to the proposed marriage or civil partnership of which the relevant registration official should be informed by the Home Office. 
  • Has a factor(s) in their immigration history which, based on a current analysis of immigration intelligence, casework and enforcement operations drawn up and quality assured according to Director General-approved procedures, otherwise gives rise to a reasonable ground to suspect that the proposed marriage or civil partnership may be a sham.

This anonymised extract from a Home Office file gives indication of when a marriage might be seen as “suspect” and the Home Office may decide to investigate.

What is the sham marriage investigation process?

If the Secretary of State decides to investigate the marriage, he will extend the notice period from 28 to 70 days. This means that the couple will not be allowed to marry until 70 days have passed, starting the day after they have given notice, and until they have complied with the investigation. The Secretary of State must inform the couple that he is extending the notice period within 28 days of them giving notice.

During the 70-day notice period, the Home Office can investigate the marriage (section 50(2)). Methods of investigation include interviewing the couple or asking them to provide additional documents, such as bank statements or tenancy agreements. Legal representatives are allowed to attend the interview with their client, and can request a transcript of the interview.

Source: https://www.freemovement.org.uk/sham-marriage/?utm_source=rss&utm_medium=rss&utm_campaign=sham-marriage

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