Friday, 22 January 2021

‘You have children together but your marriage is fake’: Marriages of convenience, UK courts and EU free movement law



Aleksandra Jolkina, PhD in Law, Queen Mary University of London

 

Over the past two decades, the UK authorities have grown increasingly suspicious towards in-country marriages between mobile EU citizens and third-country nationals with an unstable or irregular residence status. In a widespread climate of Euroscepticism, such arrangements are frequently denounced as ‘marriages of convenience’, entered into to help foreigners circumvent British immigration law. This contribution will consider how the concept of marriages of convenience is interpreted by UK courts, what implications this may have for families of EU citizens living in the country and how the situation will change post-Brexit.  

Background

The underlying reason for the UK government’s concerns about the perceived abuse has been the growing gap between two sets of rights - the EU Citizenship Directive, on the one hand, and restrictive British immigration law, on the other. Since the beginning of free movement, every EU citizen was provided the ability to reside in the host Member State with his or her spouse, irrespective of the latter’s nationality. The central logic behind these rules is that the absence of such a right would create obstacles to EU citizen’s relocation to another Member State, as well as hinder their integration into the host society.

The generous EU approach, however, soon began to sharply contrast with the relevant developments in UK domestic family reunification law. Seeking to limit the number of TCN family migrants who could not be selected in the same way as foreign labourforce, the UK significantly tightened up the rules for admission of family members of British nationals and settled persons.

In 2012, the UK introduced the so-called ‘minimum income requirement’ for their own nationals who wished to live in the country with their TCN spouses. To sponsor a foreigner, one now needs either to have significant savings or earn at least £18,600 per year (plus extra for sponsoring children), a threshold that is impossible to meet by a large share of the UK’s adult working population. Apart from that, the couples are required to provide extensive evidence that their relationship is ‘genuine and subsisting’, such as joint rental or mortgage agreements, utility bills, bank statements, photos or correspondence.

Furthermore, the ‘no-switching rule’, introduced with a view to tackling marriages of convenience involving UK citizens, prohibits non-EU nationals with short-term leave to remain from switching to the marriage category within the UK and requires them to leave the country and apply from abroad. The burden of proof in family reunification cases rests with the applicant, and, unless a human rights claim is made, the negative decision of the Home Office is not subject to appeal.

Meanwhile, family members of mobile EU citizens obtain residence rights in the UK automatically without having to leave the country or satisfy any additional requirements. As held in the CJEU judgment in Metock, this principle applies even if the non-EU party was previously irregularly present in the relevant Member State.

Since the restrictive domestic measures could not be applied to Indian or Albanian spouses of Polish or Spanish nationals, the UK government began to denounce the Citizenship Directive as a ‘loophole’ enabling otherwise undesirable non-EU nationals to regularise their status via marriages of convenience. This discourse is backed up by often sensationalist media reports exposing ‘the world of fake marriages’ where vulnerable Eastern European women are claimed to be exploited by marriage ‘fixers’ and third-country national men.

UK case-law analysis

Although the Citizenship Directive permits Member States to derogate from free movement rights in cases of abuse, such as marriages of convenience, this concept is defined narrowly, and the relevant provision is to be interpreted strictly. The present contribution briefly outlines the main findings of my study on how the issue is approached by UK courts – in particular, whether and to what extent the concept of marriages of convenience is interpreted in conformity with EU law.

To answer this question, I have conducted an analysis of 110 recent Upper Tribunal (UT) Immigration and Asylum Chamber decisions in cases where TCN spouses of mobile EU citizens were previously refused entry or residence in the UK on the grounds that their marriage was found to be one of convenience. The rulings examined were delivered between July 2016 and July 2019 and selected using the keywords ‘marriage of convenience’ or ‘sham marriage’ in conjunction with ‘EEA’. In addition, I have explored several high-profile cases on the issue, delivered by the former Asylum and Immigration Tribunal, the Court of Appeal, the High Court of England and Wales, and the Supreme Court.

Although my study focuses on First-tier Tribunal (FtT) decisions brought on appeal, the number of judgments analysed has made possible not only to provide a comprehensive overview of the UT approach to the issue, but also to identify the most problematic practices of lower courts. The key issues that arise in this context are outlined below.

Definition of marriages of convenience

One of the most problematic aspects is the definition of marriages of convenience. The crucial constraint on the concept, which is imposed by both the Citizenship Directive and the CJEU, is the narrow ‘sole purpose’ test. It implies that the acquisition of a residence status must be the only aim of the marriage, rather than one among many.

In other words, the term ‘marriages of convenience’ under the Directive shall be understood as purely artificial arrangements having no content other than an immigration motive. This is logical, given the fact that the state typically privileges marriage when it comes to family reunion and many couples get married just to be able to lead a family life in one country, its choice often affected by various factors, including economic ones. The fact that an immigration advantage may be a consequence of marriage or even the principal motive for it does not mean that that the parties do not intend to lead a family life.

The analysis of case-law suggests that very few judges attempt to establish a legal definition of marriages of convenience. This, in turn, undermines legal certainty and frequently leads to adverse outcomes. Those who do attempt to define a marriage of convenience, however, often struggle with providing a correct definition of the phenomenon in the context of the EU free movement law.

In numerous situations FtT judges appeared to be unaware of EU law and erroneously relied on the domestic immigration law instead, requiring the marriage to be ‘genuine and subsisting’. Yet even where the judges rightly focused on the position at the point of entry into marriage, the ‘sole purpose’ definition was frequently substituted by the ‘primary purpose’ approach, which is inconsistent with EU law. In two High Court judgments (Molina and Seferi & Anor), this has even led to a paradoxical finding that a marriage of convenience may be entered into by a couple in a genuine relationship.

Burden of proof

Another key issue concerns the establishment of the burden of proof. Under EU free movement law, systematic checks of marriages are prohibited, and the burden of proof of identifying marriages of convenience rests with the national authorities.

To begin with, it has long been confirmed by UK courts that the legal burden of proof in EU cases lies with the Home Office. A line of rulings can be distinguished in this regard, starting from the much-quoted UT decision in Papajorgji, delivered in late 2011, and ending up with the more recent Supreme Court judgment in Sadovska. In many cases, however, the FtT wrongly refers to the domestic immigration provisions instead and/or requires an applicant to demonstrate that their marriage is ‘genuine and subsisting’, claiming that the burden of proof lies on the non-EU national involved. In such situations, the Upper Tribunal normally allows the appeal.

Yet even where the judges do show awareness of the relevant case-law, the application of the test in practice appears problematic. In a number of judgments, FtT considered that in cases of ‘well-founded’ suspicions, the legal burden of proof rests with the non-EU national. In several cases, such decisions were set aside by the UT; yet there are disappointing examples when the Upper Tribunal did concur with the FtT.

In the case of Ahmed, the FtT judge found that a marriage was one of convenience inter alia because she considered the appellant’s lack of knowledge about his wife’s family was inconsistent with that ‘normally expected of a husband’. This is a highly normative and subjective position that was rightly criticised by the UT, particularly given that the wife explained that they did not talk about her father or brother due to ‘abuse issues during her childhood’. The appeal was consequently remitted to the FtT for re-hearing.

In Habib, both tribunals drew adverse inferences from the fact that the couple had a joint bank account and bills in joint names, opining that it was ‘part of a package’ to convince the Home Office that their marriage was genuine. In Jamil, the UT judge commented that a marriage that lasted for three years was ‘on any way brief’. This, together with other questionable evidence, made him believe it was one of convenience. In a number of cases, the FtT dismissed the claims inter alia on the grounds of their biased assessments of the photographic evidence. The judges tend to complain about the low number of photographs submitted or label them as ‘staged’. As a result, couples may feel pressured to take many pictures together even if they would not do so in normal circumstances, and then risk being considered not ‘genuine’ because of showing either too much or too little affection.

Furthermore, some judges placed significant weight on cultural differences between the spouses, a highly discriminatory position that is in no way linked to the purpose or content of the marriage. As the UT reasonably argued in Nasreen, it was unclear why the FtT judge doubted that a Bangladeshi-Italian couple developed a relationship at a takeaway restaurant where he worked, and she was a customer, and they found they had a lot in common despite their different backgrounds.

Likewise, judges tend to act as language and communication experts, evaluating the parties’ language skills and their ability to converse. In one case, the FtT judge dismissed the appeal on the grounds that the appellant’s responses to the questions were ‘incredibly vague’ and the English of the principal – ‘wholly inadequate’. This led the judge to conclude that the spouses were unable to converse, a finding also accepted by the UT. In another case involving a Pakistani-Portuguese couple, the FtT found that the marriage was one of convenience because the couple gave inconsistent evidence and the wife spoke ‘very little’ English, a finding that paradoxically outweighed the fact that the couple had a son. Although the wife said in evidence that her husband spoke very slowly to her, the judge held that ‘the level of the EEA sponsor’s knowledge of English is so low that a meaningful communication and conversation cannot be held between them’, as well as erroneously relied on the ‘genuine and subsisting’ relationship test. The UT reasonably argued that it was unclear how the judge proceeded to receive evidence from the wife without an interpreter and ultimately held that his analysis was ‘tainted by legal error on the grounds of perversity’.

Focus on cohabitation and/or present state of the relationship

The issue of the evidential burden of proof is closely linked to another problematic approach adopted by the courts. When performing marriage checks, Member States must respect a key principle established by the CJEU. As the Court held in Diatta and Ogieriakhi, as long the marriage is not officially terminated, the TCN spouse continues to benefit from the Directive even where the parties do not live together under one roof or are no longer in a relationship. The CJEU approach is reasonable, for it is not for the state authorities to decide how the spouses should arrange their marital life or make judgments on the quality of their relationship.

However, in their case-law, UK courts rarely show awareness of the relevant CJEU rulings. Instead, tribunals tend to dwell extensively on the current nature of the relationship, placing the main focus on cohabitation as evidence of its genuineness.

In several cases, the UT upheld the decision of the Home Office in concluding that the appellant’s marriage was one of convenience. For instance, in Gjana, both tribunals reached this conclusion because the EU citizen spouse went for a holiday to her home Member State. The FtT judge, in particular, considered it ‘noteworthy that she went for the month and not a shorter holiday so that she could spend time with her husband’ and placed weight on the fact that it happened shortly after the couple moved into the same accommodation. In the view of the judge, this suggested that ‘her family visit was of more importance to her and undermine[d] that claim that this is a genuine relationship’. This view was also upheld by the UT. Such an approach is striking in its subjectivity and clearly breaches EU law – both the evidential burden test and the CJEU case-law in Diatta and Ogieriakhi.

Another problematic category of cases is those where the relationship has deteriorated, or the spouses have chosen to maintain separate accommodation due to their work arrangements. In De Vera, the Home Office refused to grant the TCN spouse a residence card after not having encountered the couple at their declared home address. During the hearing, the FtT judge placed weight on the fact that the appellant had said that she lived ‘on and off with her husband’, as well as expressed surprise by the fact that she was working in Essex, some distance from their marital home in the London borough of Hounslow. Although she did return to Hounslow for four days a week, the judge claimed that such an arrangement was ‘wholly inconsistent with the appellant and her husband being a young couple who wish to spend their lives together in a genuine marriage’, suggesting that she should have been able to find a job nearer to where she lived in London. This finding was rightly dismissed by the Upper Tribunal as purely speculative, particularly in view of the explanation of the appellant about the difficulty of finding work and accommodation. The marriage was ultimately found not to be one of convenience. Yet, although the UT rightly dismissed the erroneous conclusions of the FtT by reference to the extensive evidence produced by the couple, it did not refer to the CJEU case-law which would have further strengthened its argument.

In a number of cases, a residence permit was revoked on the sole basis that the Home Office found that the spouses had separated, but their divorce was still pending. In Iqbal, the relevant Home Office decision was subsequently upheld by both the FtT and the UT. In some cases, however, the UT has rightly confirmed that even if the couple is estranged, under EU law, the status of a family member might only change with divorce.

Cases involving children

One of the most controversial group of cases involve pregnancy and childbirth, factors which make the finding that a marriage is one of convenience particularly problematic. Out of the 110 UT judgments analysed, 12 (over 10 per cent) involved marriages where the FtT did not accept these factors as evidence of their genuineness; in four of them, the UT concurred with the FtT assessment.

In some cases involving children, the judges wrongly approached the issue of the burden of proof and applied an incorrect definition of marriages of convenience. In Rehman, the FtT wrongly stated that there was an evidential burden on the claimant to address reasonable suspicions, and also wrongly referred to the ‘predominant purpose’ test. The judge then upheld the Home Office finding that the marriage was one of convenience; in the view of the FtT, the fact of childbirth could not alter this conclusion, given the non-EU national spouse’s ‘continued dishonesty’ (he was considered not truthful concerning his studies). The UT considered this reasoning flawed. In Virk, the Home Office concluded the marriage in question was one of convenience despite the pregnancy of the EU principal who was subjected to intimidating and intrusive questioning. The appeal was consequently dismissed by the FtT. The UT held that the FtT judge misapplied the burden of proof test by failing to address significant concerns by the couple as to the conduct of the interviewer and not giving weight to their explanations of the discrepancies. The decision was ultimately set aside.

In Gjura, the FtT went as far as to suggest that the non-EU spouse fathered a child solely to obtain an immigration status. This finding seems even more disturbing, provided that the judge did accept that both parties were involved in the upbringing of the child. It nonetheless placed weight on other factors, such as ‘scant evidence’ of the couple living together, their perceived inability to easily communicate when they first met, and the fact that they gave different addresses to the registrar when recording the birth of their child. It is remarkable that the FtT findings were upheld by the UT, which considered that the ‘main’ purpose of marriage was to obtain an immigration advantage.

In a similar case of Khan, the FtT accepted that the non-EU national involved was a ‘caring and loving parent’ of his child, yet concluded that the marriage was one of convenience because of his ‘dreadful’ immigration history and several discrepancies identified in the marriage interviews. The judge strikingly noted that the appellant had ‘further sought to strengthen his position in the UK by conceiving a child with the sponsor’ and expressed doubts that his intentions had been ‘honourable or genuine’. The UT rightly concluded that the FtT did not carry out a balanced assessment of all the evidence, focusing on the negative and failing to give due weight to the positive factors. The decision was therefore set aside.  Moreover, in a number of cases, the judges questioned the paternity of the child conceived during the marriage, contrary to the presumption in English family law.

What happens after Brexit?

Given the importance of the fundamental EU rights at stake, I argue that national authorities should attempt to take every precaution to minimise the risk of an erroneous decision and state intrusion into the lives of EU citizens. This, however, does not seem to be a perspective endorsed by the British government and courts. The validation of the hostile Home Office practices by so many judges is deeply disturbing. The adverse decisions, most of which have been delivered in breach of EU law, created hardship for couples involving EU citizens, and as a consequence, may have seriously hindered the latter in exercising their free movement rights. Of course, this can be partly explained by the lack of education and training of the UK judiciary on the relevant aspects of EU law. Notwithstanding that, it also calls into question the good faith of the judges who rely on their biased and discriminatory assumptions to disrupt the family life of EU citizens instead of facilitating it.

The post-Brexit developments in the UK give little reason for optimism. In essence, the British government has ultimately succeeded in its endeavours to deprive EU citizens of the generous family reunion rights guaranteed to them under EU law. The end of the transition period on 31 December 2020 has effectively created two groups of EU citizens who are now covered by separate sets of rights.

Nationals of EU Member States who move to the UK after this date fall into the scope of British immigration law. By contrast, those who were living in the UK before 31 December 2020 will continue to enjoy their residence rights on the same terms and under the Citizenship Directive. The same rights are reserved for their non-EU spouses, provided that the latter were already living in the UK on the basis of the Treaty provisions by the end of the transition period and continue to do so thereafter. Foreign spouses who were residing outside the country by the cut-off date can also join the EU principal on the condition that their marriage was registered before 31 December 2020 and is still valid. Such guarantees are provided to this group by the EU-UK Withdrawal Agreement (as discussed here), incorporated into the British law by the Withdrawal Agreement Act, discussed here. All beneficiaries of the Act are required to make an application under the so-called EU Settlement Scheme, designed to confirm their status.  

This, consequently, means that in the next few years British courts will continue to deal with appeals brought by TCN spouses of EU citizens covered by the Act. It is expected that this type of cases will mostly concern applications for pre-settled or settled status or retained right of residence following divorce.

Families of EU citizens covered by the Act will also continue to benefit from EU law safeguards the states must respect when targeting perceived marriages of convenience. It, however, remains to be seen how these rules are implemented in practice. My case-law analysis has shown that UK courts frequently struggled to differentiate between mobile EU citizens and British nationals already, long before the UK left the EU. Creating an additional distinction between EU citizens benefiting from the Act and those equated to full-fledged foreigners is thus likely to add further confusion, eventually resulting in erroneous decisions and disruption of the families involved.

Barnard & Peers: chapter 26

Art credit: Pierre-Marie Bayle, The Wedding Procession

2 comments:

  1. Thank you for providing us good reading for the weekend.

    I have a question on burden of proof.

    On the basis of the materials and the analysis available, can you rule out the possibility that the judges are not merely stating that tjey were giving a last chance for the applicants to provide evidence in rebuttal against the evidence provided by the authorities - which would otherwise suffice to establish the conveniential nature of the marrage?

    That would not sound extraordinary in circumstances where the judges need to take into account a very large number of evidence differing in nature and credibility in an area of law, where one can at best provide only "indirect" proof of the normatively relevant facts.

    That would also seem to quarantee the applicants with enhanced legal protection in comparison to the kudges simply stating that the authorities have provided with sufficient evidence. Period.

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    Replies
    1. Aleksandra Jolkina24 January 2021 at 14:01

      Thank you very much for your comment. This is certainly true for at least some of the cases. The main problem, however, is that many judges tend to give little weight to the evidence suggesting that the parties have obviously been in a relationship and focus on alleged discrepancies and other perceived signs of abuse instead. The ‘sole purpose’ test under EU law is a very high threshold to meet. It is for the executive and judges to justify why a non-EU family member can be refused residence in the UK, not the other way round. I have seen cases where applicants had supplied many pages of extra (and solid) evidence in rebuttal of that provided by the Home Office, but to no avail. Cases involving children are particularly illustrative in this respect. In my view, the very fact of pregnancy and/or childbirth alone signifies that the spouses, at least at some point, have been in a relationship, which is inconsistent with the narrow definition of marriages of convenience under the Citizenship Directive. Accepting that the applicant is a caring and loving parent of his child yet still finding his marriage to be one of convenience is problematic to say at least.

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