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
