Marriages of convenience – consequences and remedies
It is the declared aim of the government to make the UK a hostile environment for migrants as, it claims, this will contribute to its aim of reducing the level of net migration. They are rapidly making progress, at least with regard to the hostile environment, with regard to both EU and non-EU migrants. Quite what the long-term impact of this will be for life in the UK remains to be seen; however current figures indicate that the net migration target is not being met. This article discusses just one aspect of the hostile environment – that of requiring non-EU spouses of UK based EU migrants to leave the UK when the Home Office assess the marriage to be one of convenience – an approach which received the support of the Upper Tribunal in the case of R (on the application of Bilal Ahmed) v Secretary of State for the Home Department (EEA / s10 appeal rights: effect) IJR  UKUT 00436 (IAC).
One of the four cornerstones of EU law (each of which was established before the UK joined in 1973) is that of free movement – the principle that people should be as free to move between London and Paris for work as they are to move between London and Plymouth. In order for this freedom to be effective people have a right to bring their spouses and other close family members with them, regardless of their nationality. Thus, even if the spouse is another EU national, that spouse also has a right to live in the new Member State. This is a right that many British citizens take advantage of every year – whether on their annual holiday or when retiring to the Costas.
However, as with all rights based on factual circumstances, this right is open to abuse. EU Member States (including the UK) are explicitly given the right to take steps to prevent such abuse and where a marriage is entered into for the sole reason of gaining an immigration advantage it is deemed to be a sham marriage (or marriage of convenience). The non-EU spouse of such a marriage has no right of residence in the UK (or any other member state) irrespective of the EU spouse’s economic activity.
As the UK does not require EU nationals and their family members to apply for a residence card as confirmation of their right of residence here it is theoretically unnecessary for people to put themselves through the Home Office decision making process; however (particularly in the case of non-EU family members) there are strong reasons for them to do so – not least of which are the onerous changes introduced by the Immigration Act 2014 in respect of rental accommodation and bank accounts.
If the Home Office accept that the marriage is genuine all well and good; assuming the other requirements are met a residence card will be issued and in all likelihood the individual will be safe for another 5 years. However, if the Home Office assess the marriage to be one of convenience the couple may be separated for a substantial period of time.
First the application for a residence card will be refused. Secondly, if the individual has no other right to remain in the UK (for example their previous leave may have expired while waiting for a decision) then a decision to remove them from the UK may also be made. Although the individual will have a right of appeal against the decision to refuse to issue a residence card, and may have a right of appeal against the decision to remove them, they will now only be able to pursue those appeals from outside the UK. As the First-tier Tribunal is currently listing appeals for summer 2016 – a long period of separation awaits.
If the Home Office are right in their marriage assessment then it may be argued that this approach is correct – a non-EU national with no right under EU law and no leave to remain under UK law will have been removed from the UK and the UK’s right to maintain firm immigration control will thereby upheld. However if the Home Office are wrong in their assessment then genuine couples (and their families) may be separated. Alternatively, people residing in the UK entirely lawfully may choose to forego their rights and leave the UK in order to avoid that separation.
It may be possible to challenge a Home Office marriage assessment from within the UK by way of Judicial Review – but the Bilal Ahmed case makes it clear that this will only be on the basis of the information before the Home Office at the date of decision. Given the limitations of judicial review it may be that even Mrs Papajorgi (a non-EU national who had been married to her Greek husband for 14 years prior to the date of her application and lived with him in the same household as their two children) would have been removed before being allowed to pursue an appeal. Although Mrs Papajorgi emphatically won her appeal (see Papjorgi (EEA spouse – marriage of convenience) Greece  UKUT 00038 (IAC)) having submitted further information, the marriage was initially considered by an Entry Clearance Officer to be one of convenience.
Where a non-EU national successfully appeals having been removed from the UK as a result of such a decision, the Home Office is likely to be faced with a hefty legal bill as a result, including a claim for damages as they will have been removed from the UK in breach of his or her rights. The EU national will either have been separated from their spouse or will have left the UK, possibly resulting in the loss of their employment, in order to remain together.
It is worth noting that entering a marriage of convenience in the UK is a criminal offence with a maximum penalty of 14 years imprisonment. That may not have a chilling effect on some who would seek to abuse the law for their own ends; however the risk of separation as a result of administrative decisions taken by a Home Office official who is not personally affected (and at no risk of criminal sanction) by their decision may well have a chilling effect on some who seek to exercise their rights without undue interference from the authorities. Many law abiding people are too intimidated to exercise their rights fully. Such people may not come to the UK in the first place, or may leave voluntarily to go to a more welcoming country. If this happens the government may yet achieve its aim of a hostile environment.
For advice and assistance in relation to challenging a finding that a marriage is a marriage of convenience, contact our London immigration barristers on 0203 617 9173 or via our online enquiry form.