Marriages of Convenience – the guidance of the European Commission
The Home Office Modernised Guidance on direct family members of EEA nationals (of 29 September 2015) provides guidance for decision makers who are assessing whether a marriage between an EEA citizen and a third country national is genuine or one of convenience. A party to a marriage of convenience is not a ‘family member’ for the purposes of the EEA regulations.
This guidance states that the burden of proof in establishing that a marriage is one of convenience is on the Secretary of State and that the standard is the balance of probabilities.
The Guidance states, under the heading ‘Standard of Proof’:
“You must consider the balance of probabilities, and after looking at all the evidence decide if it is more likely than not the marriage or civil partnership is one of convenience.”
Interestingly, the Home Office guidance as to what factors may be considered to indicate a marriage is either genuine or one of convenience is not public. It is therefore instructive to consider instead the Guidance of the European Commission. This is set out in the “Handbook on addressing the issue of alleged marriages of convenience between EU citizens and non-EU nationals in the context of EU law on free movement of EU citizens”.
The Commission’s Handbook provides for a ‘double-lock safeguard’ which is explained as follows:
“Secondly, the danger of false identification of a genuine couple as abusive on the basis of "hints of abuse", can be reduced by a prior verification of "hints that there is no abuse" (Section 4.3) which – unlike hints of abuse – reflect the conduct much more likely to be exhibited by genuine couples than abusive couples, such as being in a long-standing relationship or in an important long-term legal or financial commitment.
In practical terms, national authorities investigating abuse should not in principle, focus primarily on hits of abuse to support their initial gut feeling that there is something suspicious about the marriage at stake. On the contrary, national authorities should first consider hits that there is no abuse that would support the conclusion that the couple is genuine and enjoys the tight to move and reside freely. Only where the couple is not prima facie clear of the (initial) suspicion ton the basis of the “hits that there is no abuse” should the hits of abuse be considered.”
This means that when considering whether a marriage is one of convenience, the Secretary of State should not consider only the evidence that supports the conclusion that the marriage is one of convenience but, rather, should look for evidence which indicates that the marriage is genuine first.
Importantly, the Handbook specifically cautions that “there are no ‘safe’ hits of abuse that can be triggered only by abusive couples as any single hit of abuse will be triggered by some genuine couples. Actually, it is very likely that any genuine couple will inevitably trigger one or several hits of abuse”. This Guidance further advises that, “all pieces of evidence must be assessed together, as a whole – none should be simply ignored because it does not “fit” a pre-determined conclusion”.
This means that a decision maker should not decide that a marriage is one of convenience on the basis of a single ‘hint of abuse’.
A list of specific ‘hints that there is no abuse’ and ‘hints of abuse’ are set out in the Handbook. Examples of hits that there is no abuse include that the non-EU spouse would have no particular problem obtaining a right of residence in his own right, that a couple have been in a close relationship for a long time, have a common household, have entered a serious long-term legal or financial commitment, share parental responsibility for children and so on.
‘Hints of abuse’ include: that one of the parities was previously refused leave to remain or are currently without leave; that the couple had not met in person before the marriage; that they do not share a common language; that they may have their wedding organised by a third party or have their wedding ceremony together with other couples with whom they do not seem to have anything in common; that they do not live together, or one party lives with someone else; and that they have not made contributions to the responsibilities and practical obligations arising from the marriage or plans for their financial stability.
It may be that similar factors are considered within the Home Office Guidance and that these, among others, should be taken into account when reaching a conclusion as to whether a marriage is one of convenience.
Contact Our Immigration Lawyers
For advice on challenging a finding of marriage of convenience by the Home Office, contact our immigration barristers in London on 0203 617 9173 or via our online enquiry form.