Legal 8.13

Sham Marriages - Time for a Correction

Introduction

1 There has been a great deal of confusion in recent months about the government's powers to deal with sham marriages. It is now clear that the Minister of Immigration in the previous government got it wrong in a television interview and failed to issue a correction. This paper sets out the correct position.

The BBC Report

2 On 7 January this year the BBC television 10 o'clock news included film of a covert investigation into a thriving business in which prospective "brides" were women from Eastern Europe taking advantage of their rights as EU citizens and the "bridegrooms" were illegal immigrants from outside the EU. The same report included an interview with Mr Phil Woolas MP, then Minister for Immigration, who said that, as a result of a court decision, nothing could be done to prevent such a marriage taking place, no matter what suspicions there might be about its genuineness. Our Honorary Legal Adviser wrote to the Minister challenging this as an incorrect statement of the law. The Minister chose not to reply to our letter but a reply came from one of his civil servants after a delay of six weeks. This reply confirms our view of the law as summarised below. The reply did not admit that the Minister made an incorrect statement but appeared to place the responsibility for the error on the BBC.

The legal position

3 Superintendent Marriage Registrars have a duty to report to the Home Secretary any suspicions they may have that a prospective marriage is a sham - that is being entered into for the purpose of evading the immigration laws^[1]. This duty has not been challenged in the Courts.

4 Furthermore, the law requires a Certificate of Approval (COA) issued on behalf of the Home Secretary for any marriage in which one party is not either a British National or a National of another EEA state^[2].

5 In 2008, the House of Lords ruled that this requirement was not incompatible with Article 12 of the European Convention on Human Rights which protects the right of men and women of marriageable age to marry provided that permission was withheld only in cases where it was concluded by the decision taker that the proposed marriage would be one of convenience.

6 According to the reply mentioned above, "The court judgments do not preclude us from assessing the genuine nature of a marriage and refusing to issue a certificate of approval if we believe it to be a sham. Where we have doubts about the genuineness of the marriage, the scheme currently operates on the basis of sworn affidavits being submitted by those wishing to marry to the effect that the marriage is genuine". The letter added that "It is worth being clear, however, that a certificate of approval has never conferred permission to stay in the UK. Sham marriage confers no immigration rights. If we are not satisfied a marriage is genuine, the UK Border Agency will not grant leave to remain in the UK or confirm a right of residence on the basis of that relationship". They do, however, intend to revise their procedures for countering sham marriages.

Conclusion

7 The Minister clearly gave a mistaken account of the legal position. As explained in Briefing Paper 8.38, legislation will be needed because of lingering uncertainty as to possible incompatibility between section 19 of the 2004 Act and Articles 12 and 14 of the European Convention on Human Rights. A fuller account of the relevant law can be found in that Briefing Paper.

Updated 6 July, 2010