Tuesday 30 September 2014

The Commission’s Handbook on Marriages of Convenience

 Alina Tryfonidou, Associate Professor in EU Law, School of Law, University of Reading
 On 26 September 2014, the Commission published a Handbook(‘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’) to assist Member States to take action against marriages of convenience between migrant EU citizens and third-country nationals, whilst ensuring that the rights that EU citizens derive from the EU free movement provisions are not unduly limited as a result of such action.  As explained by the Commission in its Press Release, the Handbook was prepared ‘in close cooperation with Member States following requests by a number of EU countries for support in dealing with the phenomenon’; and the guidelines emerging from it will ‘help to ensure that national authorities address this phenomenon – the extent of which varies significantly between Member States – based on the same factual and legal criteria throughout the Union’.  
The publication of the Handbook was also accompanied by a Communication from the Commission to the European Parliament and the Council, which summarises the main content of the Handbook.  As noted in the Handbook (p. 5) and the documents accompanying it, ‘[t]he Handbook is neither legally binding nor exhaustive.  It is without prejudice to existing EU law and its future development.  It is also without prejudice to the authoritative interpretation of EU law which may be given by the Court of Justice’. 

Before proceeding to examine the contents of the Handbook, I should provide some background information regarding marriages of convenience and their link with EU free movement law. 

As is well-known, Member State nationals – who, since 1993 (with the entry into force of the Maastricht Treaty), are, also, Union citizens – are entitled to the right to move and reside freely within the EU.  This right is bestowed by a number of different provisions (collectively referred to as ‘the free movement of persons provisions’) which are now found in the FEU Treaty, and is further elucidated in secondary legislation and, in particular, Directive 2004/38.  Although this was (and still is) nowhere reflected in the Treaties, it has always been recognised that in order to ensure that Union citizens are not deterred from exercising the above right, they must be ‘guaranteed’ that its exercise will not lead to loss of the right to live with their family members or, more broadly, to a disturbance to the smooth functioning of their family life.  Thus, family reunification rights have been considered a necessary accompaniment to the right to move and reside in the territory of another Member State derived from the Treaty.
For this purpose, since the 1960s, secondary legislation has provided for automatic family reunification rights for migrant Member State nationals, something which has proved particularly beneficial in situations involving migrant Union citizens with third-country national family members, since the latter can, as a result, join the former in the host Member State without having to undergo a prior individual assessment of their situation, which is (normally, i.e. in case EU law does not apply) required by Member State immigration rules.  Family reunification rights for migrant Union citizens are now found in Directive 2004/38, which provides, inter alia, that migrant Union citizens are entitled to be accompanied or joined in the host State by their ‘spouse’, which clearly covers both third-country national spouses as well as spouses holding the nationality of a Member State (Article 2(2)(a) of Directive 2004/38). 
The EU legislature and the ECJ have been aware of the danger of abuse of EU free movement rights, and, in the particular context of family reunification rights, of the danger that third-country nationals may enter into marriages of convenience with Union citizens, in order to bypass national immigration rules by activating the full gamut of rights that EU law grants to the family members of migrant Union citizens. Hence, Article 35 of the Directive provides that ‘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’.  The above provision, nonetheless, merely recognises that Member States can adopt measures to tackle marriages of convenience and it does not explain what this really means or what it may entail. 
Initially, the EU provided only limited guidance as regards marriages of convenience and how these could best be tackled by Member States.  In particular, in 2009, in its Communication to the European Parliament and Council ‘on guidance for better transposition and application 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 Commission provided a clarification of the notions of ‘marriages of convenience’ and other forms of abuse and fraud for the purposes of Article 35 of the 2004 Directive (see Section 4 of the Communication). However, it did not provide clear and detailed guidance as to how Member States should deal with the above without acting contrary to EU law. 
For this purpose, in 2012, the Justice and Home Affairs Council agreed that a handbook was necessary to provide detailed guidelines for Member States detailing how best to respond to the phenomenon of marriages of convenience (‘EU action on migratory pressures – A Strategic Response’).  Moreover, in November 2013, the Commission in its Communication‘Free movement of EU citizens and their families: Five actions to make a difference’, set out five actions to help implement EU rules on free movement within EU member States, and, as a response to the Justice and Home Affairs conclusions in 2012, one of these actions was ‘helping Member States fight marriages of convenience’.  Accordingly, it was agreed that the Commission, together with Member States, should prepare a handbook providing guidelines for the purpose of tackling marriages of convenience.
This is what led to the adoption of the Handbook under examination which, as explained by the Commission, offers ‘national authorities operational guidance to assist them in effectively detecting and investigating suspected cases of marriages of convenience.’ (p. 3 of the Communication accompanying the Handbook).
The Handbook – a 47-pages-long document – is divided into four sections: 1. Introduction; 2. Definitions; 3. Applicable legal framework; 4. Operational measures within national remit.
In Section 1, the Commission sets out the background to the Handbook – what made it necessary to prepare the Handbook and what is its aim – and limits its scope of application to situations involving EU citizens who ‘reside with their third-country national spouse in a Member State other than that of their nationality, or reside in the Member State of their nationality after having exercised their right to free movement notably by residing in another Member State’ (i.e. marriages of convenience within the meaning of Directive 2004/38, plus so-called ‘Surinder Singh’ cases of people who move to another Member State then return to their home State, to which the same rules apply). It  thereby excluding marriages of convenience between two EU citizens and between two third-country nationals, or situations which are purely internal to a Member State, ie where no-one has exercised their right to move to another Member State (p. 5 of the Handbook). 
As explained, the Handbook seeks to ‘assist Member States in tackling suspected marriages of convenience from the specific perspective of EU citizens’ right to free movement’.  It is stressed that since actions taken by national authorities when tackling abusive practices such as marriages of convenience are derogations from a fundamental freedom – free movement – they may only take place on a case-by-case basis and if they are non-discriminatory, justified and proportionate, if they comply with the procedural safeguards laid down in Articles 30 and 31 of Directive 2004/38, and if they do not breach any of the fundamental rights protected under EU law; a point which is analysed in more detail in Section 3 of the Handbook, which is devoted to a detailed explanation of each of the above requirements.
Section 2 then proceeds to provide definitions of the main terms used in the Handbook and, in particular, it provides guidance for distinguishing between genuine marriages and marriages of convenience, and between abuse and fraud.  After explaining the meaning of ‘marriage of convenience’ for the purposes of the Handbook (‘a marriage contracted for the sole purpose of conferring a right of free movement and residence under EU law on free movement of EU citizens to a spouse who would otherwise not have such a right’), the document summarises the constitutive elements of abuse, explaining that in detecting a marriage of convenience, ‘the focus must be on the intention of the relationship on which the right of residence is founded rather than on the outward reflection of the relationship’.  The section then provides examples of different types of genuine marriages (arranged marriages, proxy marriages, consular marriages) and marriages of convenience (‘standard’ marriages of convenience, marriages by deception, forced marriages, bogus marriages), and refers to the EU rules which apply in case the marriages of convenience include elements of trafficking in human beings.
Section 3 proceeds to describe the applicable legal framework.  It begins by explaining that an incorrect decision restricting free movement rights on grounds of abuse may have an important negative impact on the rights and well-being of EU citizens and their families who have genuinely made use of their right to free movement.  Accordingly, the aim of section 3 is, firstly, to help ‘national authorities to identify all the factors and rules that must be taken into account when wanting to take any measure to prevent or tackle abuse, in particular the EU rules on free movement and fundamental rights’, as laid down in the FEU Treaty and the EU Charter of Fundamental Rights, respectively, but also other important instruments of European and international law that need to be taken into account, such as the ECHR,UDHR, ICCPR, UNCRC; and, secondly, ‘to draw the attention of national authorities to the fact that any formal decision taken by national authorities in relation to marriages of convenience has to comply with a number of procedural safeguards’.  The section, also, deals with the issues of evidential burden and the burden of proof, the latter clearly resting on the national authorities which need to prove that the marriage is of convenience. 
The final section – Section 4 – ‘reflects practices distilled from national practices across the Member States’ and ‘should serve as a toolbox of solutions allowing Member States to set up tailored operational schemes fitting their specific needs and available resources’.  It begins by explaining the reasons and motivations behind marriages of convenience and then proceeds to analyse the hints that could trigger the launch of an investigation by national authorities – it is, nonetheless, underlined that ‘hints of abuse may only trigger an open-ended investigation, with no pre-determined outcome’ (p. 33). 
However, the Commission has been alert to the danger of considering a genuine couple as abusers and, hence, in this section it describes an approach that should be followed by national authorities in order to minimise the danger of considering a genuine couple as abusers (the ‘presumption of innocence’ and the ‘double-lock safeguard’), and provides a list of hints of abuse (i.e. certain behaviour traits that abusive couples are much more likely to present than genuine ones), which is divided into ‘several groups corresponding to inherent stages of “the life cycle” of marriages of convenience’ (p. 36). 
This section concludes with an analysis of the law-enforcement techniques and tools which can be used to tackle marriages of convenience (simultaneous interviews and questionnaires, document and background checks, inspections and community-based checks), encouraging, in particular, ‘reinforced cross-border cooperation and sharing of best practices in this area between competent national authorities’ (p. 41), which can be significantly facilitated by two EU agencies (Europol and Eurojust) as well as the European Commission itself.  It is highlighted that the techniques and tools presented in this section, must be compliant with the applicable procedures and safeguards and must respect fundamental rights, most prominently the right to private life.
There is no doubt that the Handbook is a well thought-out and carefully drafted document, which seems capable of serving well the purpose for which it was published, this being to assist Member States in their effort to eradicate the phenomenon of marriages of convenience in a balanced way.  It is clear that its drafters sought to ensure that in their fight against abuse and fraud in situations involving migrant Union citizens, national authorities will restrict the free movement rights of the latter as little as possible. 
Moreover, the Handbook – postdating the Treaty recognition of the binding nature of the EU Charter of Fundamental Rights – constantly highlights the importance of ensuring that Member States do not engage in any violations of fundamental (human) rights – as these are protected under the Charter but, also, under international instruments, such as the ECHR and the ICCPR – when investigating, proving and responding to a finding of a marriage of convenience.  Accordingly, the Commission should be commended for drawing the attention of the Member States to the need to maintain throughout all stages of tackling with a marriage of convenience a balance between, on the one hand, the right to free movement that Union citizens derive from EU law and the need to safeguard the protection of the fundamental human rights of any persons involved in a suspected case of marriage of convenience and, on the other, the ability of the Member States to ensure the effective enforcement of their immigration policies and the prevention and eradication of any abusive practices which by-pass national immigration rules and procedures.
It is still early days for judging the success and effectiveness of the document, given that it was only published last week.  However, one point of criticism can already be made and this is about its limited scope. 
It is true that different considerations apply in situations involving couples comprised of a (migrant) Union citizen and a third-country national (which are covered by the Handbook), on the one hand, and migrant or non-moving couples comprised of two Union citizens or of two third-country nationals (which are not covered by the Handbook), on the other; in fact, different considerations apply, also, among the different types of couples that fall outside the scope of the Handbook.  Yet, in all cases involving suspected marriages of convenience and the question of how Member States should respond to them, the same safeguards regarding the protection of fundamental human rights and fundamental principles need to be in place. 
In fact, as can be noticed from a careful perusal of the Handbook, its drafters appear to be mostly concerned with safeguarding fundamental human rights and with ensuring that Member States are aware of the need to comply with certain procedural requirements which derive, in their turn, from the need to protect human rights and fundamental procedural requirements, rather than to ensure the protection of the right to free movement, which is what differentiates the category of couples that falls within the scope of the Handbook from (almost all) the other couples that are excluded from its scope. 
Accordingly, it would make more sense, in my view, to draft a Handbook which would apply in all situations which fall within the scope of EU law and which involve Member State authorities tackling marriages of convenience.  The drafters would, clearly, be able to add some separate sections in order to make provision for the different considerations that need to be taken into account in relation to certain matters.  Such an approach would provide a clearer framework for Member States to tackle marriages of convenience and would remove the need for the drafting of similar documents covering the other categories of couples in the future.  Such a wholesome approach to the provision of guidelines with respect to the Member States’ response to marriages of convenience would not be entirely unprecedented, given that the Council issued in 1997 a Resolution on measures to be adopted to combat marriages of convenience, which was applicable both to couples comprised of a Union citizen (migrant or non-moving) and a third-country national and couples comprised of two third-country nationals.

Barnard & Peers: chapter 13, chapter 16

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