316. Sham (or bogus) marriages are a threat to immigration
control. Registrars have been concerned for many years about the
number of marriages which they suspect are intended to circumvent
immigration controls, and they have been frustrated about the
lack of legal powers to enable them to prevent such marriages
taking place. Changes to the registration process in 2001 apparently
made little difference to the abuse of the system: Mark Rimmer,
the Brent Registrar, estimates that between 2001 and February
2005 approximately 20% of all marriages in Brent were sham, equating
to approximately 250 marriages a year (though this appears to
be a particularly high rate).
He suggests that the incidence of sham marriages increased dramatically
in late 2003 and early 2004 and that marriages between foreign
nationals and EEA nationals, which are subject to EU free movement
rules rather than UK immigration rules, were a particular problem.
317. In response to registrars' concerns and media
coverage of the issue, the Government established a "Bogus
Marriage Task Force" in 2004 which included representatives
from the Immigration Service, local government, the registration
service and IND policy officials. This proposed a new scheme to
govern marriages where one or both parties is/are subject to immigration
control and does/do not have entry clearance as a spouse or fiancé(e).
The new scheme was enacted in section 19 of the Asylum and
Immigration (Treatment of Claimants, etc.) Act 2004 and
came into force on 1 February 2005. It has several aspects:
- Notice to marry must be given
by both persons attending together at one of 76 Designated Register
Offices in England and Wales or any registry office in Scotland
or Northern Ireland
- The foreign national must either have entry clearance
specifically for the purposes of marriage or apply to the Home
Secretary for a Certificate of Approval, at a cost of £135,
before being allowed to marry in a civil ceremony (Church of England
ceremonies are exempt)
- In order to qualify for a Certificate of Approval
the applicant must have leave that was granted for more than six
months and at least three months of that leave must be
remaining at the time of making the application
318. The subsequent marriage does not automatically
confer any immigration benefits: the person would still for instance
have to apply in the normal way for leave to remain as a spouse.
319. When the new provisions came into force, Brent
experienced a drop of 50% in the overall number of marriages
The numbers of reports from registrars of suspicious marriages
dropped from 3,740 in 2004 to fewer than 200 between February
2005 and March 2006
and Home Office officials told us in March 2006 that from their
perspective the new policy was working very well.
320. There are however many objections to the new
rules. The Joint Committee on Human Rights, reporting on the Bill
which contained these provisions, considered that "there
is a significant risk that the new procedures for marriage are
incompatible with the right to marry because they introduce restrictions
on that right which are disproportionate and which may impair
the very essence of the right".
The Joint Council for the Welfare of Immigrants (JCWI) argued
that the new requirements were in breach of the right to marry
(Article 12 ECHR); a "disproportionate and ineffective response
to the alleged problem of 'sham' marriages"; and potentially
discriminatory on faith grounds. The JCWI told us they receive
several phone calls and emails every week from couples affected
by the new rules, and their evidence gives several (anonymised)
321. The JCWI recently intervened in a High Court
challenge to the rules - the case of Baiai and others v Secretary
of State for the Home Department
- which the Government lost. The case concerned three couples:
an undocumented non-EEA national wishing to marry an EEA national
legally resident in the UK; a couple both of whom had been granted
exceptional leave to remain; and a pregnant failed asylum seeker
wishing to marry an individual granted refugee status in the UK.
All the couples were prevented from, or suffered delay in, marrying
because of the new rules. Mr Justice Silber said that there was
evidence of sham marriages in the UK and the Government was within
it rights to try to combat them, but he ruled that section 19
contravened both ECHR Article 12 (right to marry) and Article
14 (right not to be discriminated against for reasons of, inter
alia, religion or nationality). The JCWI summarise his ruling
- He agreed that there is no
necessary or logical connection between the genuineness of a proposed
marriage and the length of time which a person has leave to stay
in the United Kingdom
- It is difficult to see what basis there is for
presuming that all marriages in religions other than the Church
of England are sham marriages
- It fails to take into account a number of factors
which could be relevant to considering whether a proposed marriage
is sham, such as evidence of a loving and lasting relationship
- Under section 19 the only factors considered
to be relevant in determining a potential sham marriage in the
UK are immigration status and length of outstanding application
- The regime does not allow those without the necessary
leave to remain any opportunity to make their case for getting
married without first leaving the UK.
Mr Justice Silber said that the section 19 regime
"affects the Article 12 rights of substantially very many
more people than would be necessary to achieve the legislative
purpose of preventing sham marriages."
322. In a subsequent extended judgment issued in
June 2006 the judge made a new distinction, saying that section
19 is incompatible with the ECHR as it applies to people who are
in the UK lawfully but not those who are here unlawfully.
323. Permission has now been granted for the Home
Office to appeal against this judgment on three issues: the compatibility
of section 19 with the ECHR, the position of people unlawfully
present in the UK and damages.
324. Mark Rimmer, the Brent Registrar, was very concerned
at the implications of the High Court ruling:
I think the provisions have been incredibly successful
in terms of reducing the problem. Certainly the evidence from
my colleagues around the country is that they have witnessed very
few attempts at what they consider to be sham marriages since
the implementation of these provisions, and we thought that it
was working very well. We would be incredibly disappointeddevastated,
I think, has been the word used on many occasionsif this
law was repealed.
325. Following the ruling the Home Office suspended
decisions on those Certificate of Approval for Marriage (COA)
applications which would normally fall for refusal under current
guidelines. COA applications which meet the criteria have continued
to be decided. According to the IND website, the Home Office is
still considering the full implications of the judgment and may
amend the guidelines.
However, it is likely to wait until the outcome of the appeal
326. The Government is right to take measures
against sham or bogus marriages. The Bogus Marriage Task Force
should be reconvened urgently to produce proposals which are non-discriminatory.
Meanwhile all marriage applications should be assessed by specialist
teams of caseworkers.
327. Spouses of EEA citizens do not have to apply
through the Immigration Rules to come to live in the UK. If the
EEA citizen is exercising free movement rights, he or she has
the right to be accompanied by family members regardless of their
nationality: these family members' rights to enter the UK are
therefore governed by European law. 
There is a growing concern that this route is open to abuse even
though European law does not give rights where there is evidence
of a sham marriage. For instance, we were told during our visit
to Accra that in Ghana there had been 51 applications as the spouse
of an EEA national in January to March 2006, compared with 9 in
the same period last year.
Mark Rimmer told us that most of the abuse registrars found concerned
foreign nationals marrying EEA nationals rather than British nationals.
The Government must explore what measures it can put in place,
without breaching European law, to prevent marriage to an EEA
citizen being used as a fraudulent way of entering the UK.