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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