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.

[pdfviewer]https://freemovement.org.uk/wp-content/uploads/2018/12/Reasons-for-referral-for-marriage-interview-1.pdf[/pdfviewer]

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.

Legal representatives who do attend an interview should take their own records, to ensure they match with the Home Office transcript. They may also want to intervene if inappropriate questions are asked (for example about the couple’s sex life) or the interviewer were to start asking questions or making comments which do not assist in assessing whether the marriage is a sham, as that must be the sole purpose of the interview. For example, I once assisted at an interview where the Home Office official started advising the migrant to voluntarily leave the UK and make an application from abroad on the basis that they would be “saving taxpayer money” and avoiding a “re-entry ban”).

If a couple does not comply with the investigation, they will not be able to get married (section 50(6)) and will need to give notice again. Couples should be made aware that “not complying with the investigation” includes not providing the documents requested, even if the Home Office concludes that the marriage is genuine. The legality of this approach is arguable, given that the purpose of the investigation under section 48(6) should purely be to decide whether a marriage is a sham, but that is the current practice.

Couples should also note that it is possible to rely on the fact that there was a “reasonable excuse for non-compliance” such as reasons beyond the control of relevant parties which prevented them from complying with the requirement. For example, if a couple is asked for a tenancy agreement but they simply do not have one, because they live with a friend, they should be excused from the requirement. It might be a good idea to submit a letter from the friend confirming this, with evidence of that friend’s identity and right to occupy the property.

NB: the above process refers to investigations of proposed marriages during the 70-day notice period. However, as we will also see below, the Home Office may decide to investigate the genuineness of a marriage after it has taken place, for example when someone submits an immigration application to remain in the UK on the basis of their marriage.

Protecting your position during the notice period

Genuine couples should not generally be worried by the investigation. As long as they go along with what is asked of them by the Home Office, there should be no issues.

Still, it is important to remember that giving notice means coming to the attention of the Home Office. When one of the members of the couple is in the UK without status, the Home Office may very well try to start removal proceedings against that person.

It is therefore important that their position is protected. One way of doing this is by submitting an application for leave to remain to the Home Office. Officials will need to make a decision on the application before being able to remove the applicant. If the application remains pending until after the end of the notice period, then the applicant will be able to marry without having been removed.

Of course, to make a valid application, an applicant must submit their passport to the Home Office. As we saw above, they may also need that passport to give notice. Therefore, one should first give notice and then immediately submit an application. The passport is not required on the day of the marriage itself.

What is a “genuine and subsisting relationship”?

The genuineness of a relationship will also be considered when someone makes an application as a spouse: that is, even after the marriage has taken place. A marriage must be “genuine” for an application to be successful.

In particular, under British domestic law, one of the requirements to be met by the partner of a British or settled citizen is that

The relationship between the applicant and their partner must be genuine and subsisting (paragraphs E-ECP.2.6. and E-LTRP.1.7. of Appendix FM)

There is no definition of “genuine” in the Immigration Rules or in Home Office guidance. But there is a list of factors to assess whether a relationship is genuine in the Immigration Rules at Annex FM Section FM 2.0.

Sham and forced marriages are not genuine marriages. Arranged marriages, though, can be genuine.

Examples from the list of factors are set out below. It is not a checklist and the guidance confirms that

Decisions on whether a relationship is genuine and subsisting are to be considered as a whole, based on all the available evidence, on a case-by-case taking account of all the circumstances of the application.

A marriage need not be declared a sham for the Home Office to decide that the couple’s relationship is not “genuine and subsisting”.

How do the courts deal with sham marriages?

There is some case law on sham marriages.  Helpful from the client’s point of view is the fact that the burden of proof of establishing a “marriage of convenience” falls on the Home Office. This was most recently confirmed by the Supreme Court in the case of Sadovska & Anor v Secretary of State for the Home Department (Scotland) (Rev 1) [2017] UKSC 54. The court concurred with the previous rulings of the Court of Appeal in the cases of Rosa [2016] EWCA Civ 14 and Agho [2015] EWCA Civ 1198.

Less helpful from the client’s point of view is the way in which the courts have approached the definition of sham marriages and marriages of convenience.

As we have seen, the Home Office considers sham marriages and marriages of convenience to be the same thing. But in R (Molina) v Secretary of State for the Home Department [2017] EWHC 1730 (Admin), the High Court drew a distinction between a “sham marriage” and a “marriage of convenience”. While the former could only exist where there is no genuine relationship between the parties to the marriage, the latter

may exist despite the fact that there is a genuine relationship and in the absence of any deception or fraud as to its existence. The focus is upon the intention of one or more of the parties and, in the present context, whether the sole aim is to gain an immigration advantage [73].

It seemed from this case that a genuine couple could have their nuptials labelled a marriage of convenience, but only when its sole aim was to gain an immigration advantage.

But in Sadovska, less than two weeks after Molina was decided by the High Court, the Supreme Court said

For this purpose, “marriage of convenience” is a term of art. 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 [29].

The fact that the Supreme Court decided that a Handbook was to take precedence over a Directive is puzzling and must be challengeable. Its approach has also expanded the definition of marriage of convenience, from one where the sole aim is to gain an immigration advantage, to one where gaining an immigration advantage can be the predominant purpose.

It is only by taking it as the predominant purpose that one can start refusing genuine couples. If a marriage of convenience was one where the “sole purpose” is gaining an immigration advantage, then it could only be entered by a couple which is not in a genuine relationship. Unfortunately, the courts have allowed the Home Office to use a wider definition of marriages of convenience, thereby allowing the department to target an increasing number of genuine couples.

In positive news, the decision in Molina was further challenged in the Court of Appeal, and set aside by consent. The accompanying statement of reasons says that “where a relationship is one that could reasonably be expected to lead to a marriage in due course, marrying earlier to secure an immigration advantage may not involve gaining the right or benefit in circumstances that are outside the objective of the measure in question”. In other words, a genuine couple may decide to marry earlier than it would otherwise have done, and that would not necessarily be considered a marriage of convenience.

It is hoped that the expanded definition of marriages of convenience will be challenged in future litigation, and that we will return to a position where a genuine couple cannot enter into a marriage of convenience at all. In the meantime, however, it is important that couples are aware of this case law, and, when appropriate, stress all of the factors which contributed to their decision of entering into marriage, including the simple reason of wanting to spend the rest of their lives together.