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Allan Briddock examines a significantly widened definition of ‘marriage of convenience’ and how the new test could catch out many genuine relationships
‘Marriage of convenience’ is a concept that immigration lawyers are very familiar with and is usually a question of evidence and plausibility. Lawyers have historically been happy to advise clients that there is nothing wrong with marrying to gain residency rights as long as the relationship is genuine. Recently, however, the definition of ‘marriage of convenience’ has changed significantly and now, it seems, a genuine couple can be in a marriage of convenience.
The terms ‘sham marriage’ and ‘marriage of convenience’ have been used interchangeably. In Baiai & Ors, R (on the Application of) v Secretary of State For The Home Department [2008] UKHL 53 the House of Lords considered a (now repealed) statutory scheme which required persons with limited residency rights to obtain a certificate of approval before they could marry. Considering the definition of ‘marriage of convenience’, Lord Bingham said it was ‘difficult to improve’ on an EC Council definition which was ‘a marriage… with the sole aim of circumventing the rules on entry and residence’. Baroness Hale added: ‘There are many perfectly genuine marriages which may bring some immigration advantage to one or both of the parties depending on where for the time being they wish to make their home. That does not make them “sham” marriages.’
An immigration advantage, therefore, had to be the ‘sole aim’ of the marriage and this excluded couples in genuine relationships. People marry for a variety of reasons, and many genuine couples, who might not otherwise marry, do so in order for one of them to be able to stay in the UK. Under the ‘sole-aim’ definition, that would not be a marriage of convenience. Although the couple is marrying to gain an immigration advantage, the purpose of that is to remain together in the UK, so an immigration advantage is not the ‘sole purpose’.
In Molina, R (on the Application of) v The Secretary of State for the Home Department [2017] EWHC 1730 (Admin) it was found that there is a difference between a sham marriage and a marriage of convenience. In that case, the court was considering a decision that a marriage was a sham, following a referral from a marriage registrar under s 28H(5) of the Marriage Act 1949. A ‘sham marriage’, under the referral scheme, is defined in s 24(5) of the Immigration and Asylum Act 1999. Included in this definition is the requirement: ‘there is no genuine relationship between the parties to the marriage’.
‘Marriage of convenience’, however, is a term used in European free movement and applies to couples where one of the parties is exercising Treaty rights. Recital 28 of Directive 2004/58/EC (‘the Citizens’ Directive’) states: ‘to guard against abuse of rights or fraud, notably marriages of convenience or any other form of relationships contracted for the sole purpose of enjoying the right of free movement and residence, member states should have the possibility to adopt the necessary measures’ (emphasis added).
In Molina, the court found: ‘there is a difference in principle between a “sham marriage” and a “marriage of convenience”. It is clear from the statutory definition that a sham marriage can only be established if there is no genuine relationship between the parties… [T]he hallmark of a marriage of convenience is one that has been entered into, in the context with which we are concerned, for the purpose of gaining an immigration advantage. That follows, in my judgment, from Lord Bingham’s acceptance inBaiaiof the definition of a “marriage of convenience”… namely that it is a marriage entered into “with the sole aim of circumventing the Rules on entry and residence”.’
The court went on to find that ‘a “marriage of convenience” may exist despite the fact that there is a genuine relationship without any evidence of deception or fraud’. The court found the focus should be on the intentions of the parties to assess whether the sole aim is to gain an immigration advantage (emphasis added).
When Molina was published, it was questionable whether the court was correct in law that a couple in a genuine relationship could be in a marriage of convenience. However, a matter of weeks after Molina, the Supreme Court handed down its judgment in Sadovska & Anor v Secretary of State for the Home Department (Scotland) (Rev 1) [2017] UKSC 54. The court noted the European Commission’s Handbook on addressing the issue of alleged marriages of convenience which states that: ‘the notion of “sole purpose” should not be interpreted literally (as being the unique or exclusive purpose) but rather as meaning that the objective to obtain the right of entry and residence must be the predominant purpose of the abusive conduct.’
Lady Hale, giving the judgment of the court, found that: ‘For this purpose, “marriage of convenience” is a term of art. Although it is defined in the Directive and the 2009 Communication as a marriage the sole purpose of which is to gain rights of entry to and residence in the European Union, the 2014 Handbook suggests a more flexible approach, in which this must be the predominant purpose. It is not enough that the marriage may bring incidental immigration and other benefits if this is not its predominant purpose. Furthermore, except in cases of deceit by the non-EU national, this must be the purpose of them both’ (emphasis added).
The current definition therefore, at least where one of the parties to the marriage is a European Economic Area national, is that to be a marriage of convenience, obtaining an immigration advantage must be the ‘predominant purpose’ of both parties (except in cases of fraud) and not just incidental.
It is probably right to say, following Sadovska, that a couple in a genuine relationship can be in a marriage of convenience. There are significant difficulties with that, however. We have moved a long way from the definition as given in the Directive and there is now significant danger that many genuine couples will be deemed to be in marriages of convenience.
In Seferi & Anor, R (On the Application Of) v Secretary of State for the Home Department [2018] EWHC 287 (Admin), the court found: ‘[the EU national] at least had accepted that she researched how Mr Seferi could legalise his stay, even though she said she had not discussed it with him. It is not an unreasonable inference that someone in his position would know that marriage to an EU national would assist his immigration status. Thus it was a rational conclusion that this was a marriage desired by both parties predominantly for the immigration advantage it would give to Mr Seferi, and therefore was a marriage of convenience. The conclusion that this was a marriage of convenience does not require the Defendant to reach a concluded view on the genuineness of the relationship, and none was reached at that stage.’
The court found, therefore, that the genuineness of the relationship was not even a relevant consideration. Further, the court found that because the European partner researched, and her partner would have been aware of the immigration advantages that marriage would bring, it was a rational conclusion that it was a marriage of convenience.
The ‘predominate purpose’ test should be interpreted to mean that not only are the primary reasons for getting married looked at, but rather that the underlying reasons are looked at also. The European Commission, the House of Lords and the Supreme Court have been clear that a marriage is not one of convenience just because it brings incidental immigration advantages. Consider the case of a genuine couple who are not married where one party needs permission to stay in the UK. That couple might not have any plans to marry, but they do so in order to resolve the immigration status of one of them. On a literal view, the predominate purpose of the marriage is to gain an immigration advantage. However, the real reason for the marriage, the underlying reason, is for the couple to be able to remain together in the UK.
The definition of ‘marriage of convenience’ has been taken well beyond what is set out in the Directive and there has been a huge widening of the state’s right to interfere with people’s relationships and the reasons they marry. We will have to wait and see how many genuine relationships are caught by the new test.
Contributor Allan Briddock is a barrister at One Pump Court specialising in immigration and asylum law.
Allan practises from One Pump Court and specialises in asylum, immigration and nationality law, and human rights in business. He is a trustee of the UK Lesbian and Gay Immigration Group and a co-founder of the Trans Equality Legal Initiative.
‘Marriage of convenience’ is a concept that immigration lawyers are very familiar with and is usually a question of evidence and plausibility. Lawyers have historically been happy to advise clients that there is nothing wrong with marrying to gain residency rights as long as the relationship is genuine. Recently, however, the definition of ‘marriage of convenience’ has changed significantly and now, it seems, a genuine couple can be in a marriage of convenience.
The terms ‘sham marriage’ and ‘marriage of convenience’ have been used interchangeably. In Baiai & Ors, R (on the Application of) v Secretary of State For The Home Department [2008] UKHL 53 the House of Lords considered a (now repealed) statutory scheme which required persons with limited residency rights to obtain a certificate of approval before they could marry. Considering the definition of ‘marriage of convenience’, Lord Bingham said it was ‘difficult to improve’ on an EC Council definition which was ‘a marriage… with the sole aim of circumventing the rules on entry and residence’. Baroness Hale added: ‘There are many perfectly genuine marriages which may bring some immigration advantage to one or both of the parties depending on where for the time being they wish to make their home. That does not make them “sham” marriages.’
An immigration advantage, therefore, had to be the ‘sole aim’ of the marriage and this excluded couples in genuine relationships. People marry for a variety of reasons, and many genuine couples, who might not otherwise marry, do so in order for one of them to be able to stay in the UK. Under the ‘sole-aim’ definition, that would not be a marriage of convenience. Although the couple is marrying to gain an immigration advantage, the purpose of that is to remain together in the UK, so an immigration advantage is not the ‘sole purpose’.
In Molina, R (on the Application of) v The Secretary of State for the Home Department [2017] EWHC 1730 (Admin) it was found that there is a difference between a sham marriage and a marriage of convenience. In that case, the court was considering a decision that a marriage was a sham, following a referral from a marriage registrar under s 28H(5) of the Marriage Act 1949. A ‘sham marriage’, under the referral scheme, is defined in s 24(5) of the Immigration and Asylum Act 1999. Included in this definition is the requirement: ‘there is no genuine relationship between the parties to the marriage’.
‘Marriage of convenience’, however, is a term used in European free movement and applies to couples where one of the parties is exercising Treaty rights. Recital 28 of Directive 2004/58/EC (‘the Citizens’ Directive’) states: ‘to guard against abuse of rights or fraud, notably marriages of convenience or any other form of relationships contracted for the sole purpose of enjoying the right of free movement and residence, member states should have the possibility to adopt the necessary measures’ (emphasis added).
In Molina, the court found: ‘there is a difference in principle between a “sham marriage” and a “marriage of convenience”. It is clear from the statutory definition that a sham marriage can only be established if there is no genuine relationship between the parties… [T]he hallmark of a marriage of convenience is one that has been entered into, in the context with which we are concerned, for the purpose of gaining an immigration advantage. That follows, in my judgment, from Lord Bingham’s acceptance inBaiaiof the definition of a “marriage of convenience”… namely that it is a marriage entered into “with the sole aim of circumventing the Rules on entry and residence”.’
The court went on to find that ‘a “marriage of convenience” may exist despite the fact that there is a genuine relationship without any evidence of deception or fraud’. The court found the focus should be on the intentions of the parties to assess whether the sole aim is to gain an immigration advantage (emphasis added).
When Molina was published, it was questionable whether the court was correct in law that a couple in a genuine relationship could be in a marriage of convenience. However, a matter of weeks after Molina, the Supreme Court handed down its judgment in Sadovska & Anor v Secretary of State for the Home Department (Scotland) (Rev 1) [2017] UKSC 54. The court noted the European Commission’s Handbook on addressing the issue of alleged marriages of convenience which states that: ‘the notion of “sole purpose” should not be interpreted literally (as being the unique or exclusive purpose) but rather as meaning that the objective to obtain the right of entry and residence must be the predominant purpose of the abusive conduct.’
Lady Hale, giving the judgment of the court, found that: ‘For this purpose, “marriage of convenience” is a term of art. Although it is defined in the Directive and the 2009 Communication as a marriage the sole purpose of which is to gain rights of entry to and residence in the European Union, the 2014 Handbook suggests a more flexible approach, in which this must be the predominant purpose. It is not enough that the marriage may bring incidental immigration and other benefits if this is not its predominant purpose. Furthermore, except in cases of deceit by the non-EU national, this must be the purpose of them both’ (emphasis added).
The current definition therefore, at least where one of the parties to the marriage is a European Economic Area national, is that to be a marriage of convenience, obtaining an immigration advantage must be the ‘predominant purpose’ of both parties (except in cases of fraud) and not just incidental.
It is probably right to say, following Sadovska, that a couple in a genuine relationship can be in a marriage of convenience. There are significant difficulties with that, however. We have moved a long way from the definition as given in the Directive and there is now significant danger that many genuine couples will be deemed to be in marriages of convenience.
In Seferi & Anor, R (On the Application Of) v Secretary of State for the Home Department [2018] EWHC 287 (Admin), the court found: ‘[the EU national] at least had accepted that she researched how Mr Seferi could legalise his stay, even though she said she had not discussed it with him. It is not an unreasonable inference that someone in his position would know that marriage to an EU national would assist his immigration status. Thus it was a rational conclusion that this was a marriage desired by both parties predominantly for the immigration advantage it would give to Mr Seferi, and therefore was a marriage of convenience. The conclusion that this was a marriage of convenience does not require the Defendant to reach a concluded view on the genuineness of the relationship, and none was reached at that stage.’
The court found, therefore, that the genuineness of the relationship was not even a relevant consideration. Further, the court found that because the European partner researched, and her partner would have been aware of the immigration advantages that marriage would bring, it was a rational conclusion that it was a marriage of convenience.
The ‘predominate purpose’ test should be interpreted to mean that not only are the primary reasons for getting married looked at, but rather that the underlying reasons are looked at also. The European Commission, the House of Lords and the Supreme Court have been clear that a marriage is not one of convenience just because it brings incidental immigration advantages. Consider the case of a genuine couple who are not married where one party needs permission to stay in the UK. That couple might not have any plans to marry, but they do so in order to resolve the immigration status of one of them. On a literal view, the predominate purpose of the marriage is to gain an immigration advantage. However, the real reason for the marriage, the underlying reason, is for the couple to be able to remain together in the UK.
The definition of ‘marriage of convenience’ has been taken well beyond what is set out in the Directive and there has been a huge widening of the state’s right to interfere with people’s relationships and the reasons they marry. We will have to wait and see how many genuine relationships are caught by the new test.
Contributor Allan Briddock is a barrister at One Pump Court specialising in immigration and asylum law.
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