16 Handbook on marriages of convenience
| Committee's assessment
| Politically important |
| Committee's decision | Cleared from scrutiny; relevant to the Commission Communication, Free movement of EU citizens and their families: Five actions to make a difference (recommended for debate on the Floor of the House on 22 January 2014)
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| Document details | Commission Communication: Helping national authorities fight abuses of the right to free movement: Handbook on addressing the issue of alleged marriages of convenience between EU citizens and non-EU nationals in the context of EU law on the free movement of EU citizens
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| Legal base | —
|
| Department | Home Office
|
| Document number | (36370), 13699/14 + ADD 1, COM(14) 604
|
Summary and Committee's conclusions
16.1 In May 2012, the Justice and Home Affairs Council
agreed a document, EU Action on Migratory Pressures —
A Strategic Response which identified six strategic priority
areas for tackling illegal immigration and the abuse of free movement
rights by third country nationals.[44]
It set out a number of activities to prevent the abuse of family
reunification rights, including the publication of a Handbook
on marriages of convenience to assist Member States in identifying
cases of abuse.
16.2 In April 2013, the Home Secretary and her counterparts
in Austria, Germany and the Netherlands requested an urgent review
of EU free movement rules on the grounds that they were placing
a strain on local services and social welfare systems and that
Member States lacked the necessary legal tools to tackle abuse
and fraud. The Commission responded by publishing a Communication
in November 2013 which sought to clarify the rights and obligations
associated with the free movement of EU citizens and their families,
as well as the conditions and limitations provided for in EU law.[45]
It made clear that, in the Commission's view, EU free movement
rules contained robust safeguards to tackle abuse and prevent
unreasonable burdens being placed on the host country. The Communication
listed five actions that the Commission would implement together
with Member States to help national and local authorities apply
EU free movement rules effectively. One of the actions included
preparation of a Handbook on marriages of convenience.
16.3 The Government was critical of the Commission's
failure to acknowledge the scope and seriousness of free movement
fraud, suggested that the sanctions available to Member States
were inadequate, and that the actions proposed by the Commission
to help tackle abuse were unlikely to be effective. In particular,
the Government stated that early drafts of the Handbook on marriages
of convenience were unacceptable in that they failed to provide
practical, operational guidance, focussed too narrowly on free
movement rights, and gave little indication of how sham marriages
could be prevented.[46]
16.4 We considered that the challenges presented
by free movement within an enlarged European Union, the impact
on national welfare systems and local services, the adequacy of
the safeguards against abuse and fraud enshrined in existing EU
rules, and the scope for action at national level were of sufficient
importance to merit a debate on the Floor of the House. Nine months
on, the debate has yet to be scheduled.
16.5 Meanwhile, the Commission has completed its
Handbook on marriages of convenience ("the Handbook").
The latest Commission Communication summarises the purpose and
content of the Handbook. The full text of the Handbook is contained
in an accompanying Commission staff working document (ADD 1).
16.6 We note that the Government is now broadly
content with the Handbook and considers that it will be helpful
in raising awareness, supporting Member States with less well-developed
systems for detecting and preventing marriages of convenience,
and promoting operational cooperation between Member States to
tackle abuse. Publication of the Handbook fulfils one of the actions
envisaged in an earlier and wider-ranging Commission Communication
on the free movement of EU citizens and their families which we
recommended for debate nine months ago, in January 2014. The Government
has, so far, offered no explanation for the delay in scheduling
a debate, despite the evident public interest in the subject matter.
In light of the Government's generally positive assessment of
the Handbook, we are content to clear the Communication from scrutiny
but consider that it is relevant to the debate on the earlier
Commission Communication. We now expect the Government to schedule
a date for the debate forthwith, or to write with a full explanation
of the reasons for the delay.
Full details of the documents:
Commission Communication: Helping national authorities fight abuses
of the right to free movement: Handbook on addressing the issue
of alleged marriages of convenience between EU citizens and non-EU
nationals in the context of EU law on the free movement of EU
citizens: (36370), 13699/14 + ADD 1, COM(14) 604.
Background
16.7 EU citizens have the right to move and reside
freely within the EU, subject to any conditions and limitations
set out in the EU Treaties or in secondary legislation made under
them.[47] Directive 2004/38/EC
is the principal measure establishing how this right shall be
exercised. It makes clear that the right of free movement and
residence also extends to specified family members of EU citizens.
Third country national spouses are entitled to accompany or join
their EU spouse, provided that the EU spouse has exercised free
movement rights by moving to or living in a Member State of which
she or he is not a national.[48]
16.8 The Directive recognises that the conferral
of rights also entails a risk of abuse, and that a couple may
enter into a marriage of convenience with the sole purpose of
bypassing national immigration rules and acquiring the right of
free movement and residence. It therefore provides, in Article
35, that:
"Member States may adopt the necessary measures
to refuse, terminate or withdraw any right conferred by this Directive
in the case of abuse of rights or fraud, such as marriages of
convenience. Any such measures shall be proportionate and subject
to the procedural safeguards provided for in Articles 30 and 31."
16.9 Whilst it is clear that Member States are entitled,
as a matter of EU law, to take action to tackle marriages of convenience,
the Directive does not provide any further detail on the circumstances
in which such action may be taken or the evidential requirements
necessary to justify such action. The publication of an EU Handbook
on marriages of convenience is intended to fill this gap.
The Commission Communication and Staff Working
Document
16.10 The Handbook makes clear that the right to
move and reside freely within the EU is one of the four fundamental
freedoms enshrined in EU law and constitutes a cornerstone of
European integration. To ensure that this right is effective,
EU law also recognises that it is necessary to protect the family
life of mobile EU citizens by allowing third country national
family members to accompany or join them in another (host) Member
State. The Commission acknowledges that there is scope for abuse
of EU free movement rules, and that effective action to tackle
such abuse is essential to uphold free movement rights. It suggests
that the incidence of marriages of convenience varies significantly
between Member States, but that the involvement of organised criminal
networks in some cases introduces a worrying new dimension to
the problem.
16.11 The purpose of the Handbook, which the Commission
says has been prepared in close cooperation with Member States,
is to:
"help national authorities effectively tackle
individual cases of abuse in the form of marriages of convenience
while not compromising the fundamental goal of safeguarding and
facilitating free movement of EU citizens and their family members
using EU law in a bona fide way."[49]
16.12 The Handbook describes the legal framework
within which national authorities should operate and provides
operational guidance to help them in detecting and investigating
suspected marriages of convenience. The Commission makes clear,
however, that:
"The Handbook is neither legally binding
nor exhaustive. It is without prejudice to existing EU law and
its future development. It is also without prejudice to the substantive
interpretation of EU law which may be given by the Court of Justice."[50]
16.13 The Handbook is divided into four sections,
each summarised in the following paragraphs.
INTRODUCTION AND SCOPE
16.14 The introductory section of the Handbook clarifies
that it only applies to marriages of convenience between EU citizens
who have exercised free movement rights by moving to another (host)
Member State and their third country national spouses. It defines
a marriage of convenience as one:
"contracted for the sole purpose of conferring
a right of residence under EU law on a non-EU national who would
otherwise not be able to benefit from such a right."[51]
16.15 In tackling suspected cases of abuse, the Handbook
notes that national authorities must respect the fundamental rules
and principles of EU law and ensure that any derogation from them
is based on individual conduct, and is non-discriminatory, justified
and proportionate to the objective pursued.
DEFINITIONS
16.16 This section of the Handbook describes the
different elements or "building blocks" which together
constitute abuse of EU free movement law. It places particular
emphasis on the intention of those entering into a marriage of
convenience, noting the absence in such cases of a genuine desire
to establish a durable family unit and the predominant focus on
acquiring a right of entry or residence which would otherwise
be difficult or impossible to obtain. The Handbook provides guidance
on how to distinguish between less familiar, but genuine marriages
— such as arranged, proxy or consular marriages —
and marriages of convenience. It also describes the different
types of marriages of convenience, some involving coercion or
victims of human trafficking, and the legal framework in place
to support victims.
THE LEGAL FRAMEWORK GOVERNING ACTION TO PREVENT AND
TACKLE MARRIAGES OF CONVENIENCE
16.17 In this section, the Handbook sets out the
rules and principles which establish the legal framework within
which national authorities must operate when taking action to
tackle marriages of convenience. They include:
· relevant EU law on the free movement of
EU citizens and their family members, notably Directive 2004/38/EC,
and case law of the Court of Justice;
· the principle of proportionality which
seeks to ensure that decisions are based exclusively on the personal
conduct of the individuals concerned, and that any measures taken
by national authorities pursue a legitimate objective and are
suitable, appropriate and necessary to achieve that objective;
and
· the protection of fundamental rights enshrined
in relevant EU, European or international legal instruments, notably
the EU Charter of Fundamental Rights, the European Convention
on Human Rights, the Universal Declaration of Human Rights, the
UN Convention on the Rights of the Child, and the International
Covenant on Civil and Political Rights — the principal rights
concerned are the right to marry, the right to family life, and
the rights of the child (with the best interests of the child
being a primary consideration), but the prohibition of inhuman
or degrading treatment and of discrimination are also relevant.
16.18 The Handbook also provides guidance on the
evidential standard and burden of proof, and describes the procedural
safeguards under EU law to be applied once it has been determined
that a relationship is a marriage of convenience. On the former,
the Handbook notes that there is "no EU-wide common approach
to the evidence required to prove that a marriage is one of convenience"
and that evidential requirements vary across Member States.[52]
It says that an investigation into a marriage should only take
place where there are "reasonable doubts" as to it being
genuine. Whilst the burden of proving that a marriage is one of
convenience rests with the investigating national authority, the
spouses concerned are under an obligation to cooperate if the
authority has "well-founded suspicions" that the marriage
may not be genuine. The right to take action to refuse, terminate
or withdraw rights conferred under EU free movement rules must
be "duly established" by the relevant national authority
and meet the appropriate evidential standard (this, in turn, may
depend on whether the nature of the abuse in question constitutes
a criminal offence or a breach of civil law).
16.19 The Handbook provides a detailed overview of
the procedural safeguards provided for in Article 35 of Directive
2004/38/EC once a national authority has determined that a marriage
is one of convenience and intends to take action to restrict the
right to free movement and residence in the host Member State.
The safeguards are intended to ensure that the individuals concerned
are able to launch an appeal, prepare their defence and obtain
redress if appropriate.
OPERATIONAL MEASURES
16.20 The final section of the Handbook contains
a "toolbox of solutions" which represents a distillation
of best practice across EU Member States and is intended to help
national authorities identify the most effective operational measures
to detect and investigate suspected marriages of convenience.
It identifies a series of "hints of abuse" which, cumulatively,
may be sufficient to warrant an investigation, whilst adding that
they should "never automatically and inevitably confirm the
abusive nature of the marriage" but should be part of a "wider
and neutral appreciation of all elements, for and against suspected
abuse".[53]
16.21 The Handbook recommends that national authorities
apply a "double-lock safeguard" to reduce the risk that
atypical but genuine couples will be suspected of entering into
a marriage of convenience. Under this double-lock mechanism, national
authorities should first look for positive indications that a
marriage is genuine. Only if doubts arise at this stage should
they proceed to a second-stage examination of "hints"
or indicators of abuse. The Handbook sets out a number of factors
which may indicate that a marriage is genuine, and contrasts these
with conduct or behaviour typifying the absence of a genuine and
durable relationship.
16.22 The Handbook describes the main investigation
techniques used by national authorities to identify marriages
of convenience, such as interviews, questionnaires, document and
background checks and inspections, whilst noting the importance
of ensuring respect for the private life of the individuals concerned.
16.23 It concludes with a brief overview of the range
of national authorities that may be involved in tackling marriages
of convenience, underlines the importance of cross-border cooperation
to share best practice, and describes the contribution that Europol
and Eurojust can make to support national authorities, particularly
if there is an organised crime or human trafficking dimension,
including through the establishment of Joint Investigation Teams.
The Minister's Explanatory Memorandum of 16 October
2014
16.24 The Minister for Security and Immigration (James
Brokenshire) notes that the Commission Communication and accompanying
Handbook are not legally binding and are intended to be used by
Member States as a source of practical guidance and an operational
tool to help them tackle marriages of convenience more effectively.
He continues:
"For the UK, it is widely recognised that
there are considerable benefits to be obtained by family members
of EU citizens entering into a marriage of convenience for the
purposes of acquiring free movement rights. As a result the UK
already provides extensive operational guidance on the practical
and effective measures that can be taken to tackle abuse through
this route. This includes early identification of forged and counterfeit
documents, intelligence gathering on patterns of abuse and interviewing
individual cases where there is a suspected marriage of convenience.
The UK has recently legislated in the Immigration Act 2014 to
strengthen our ability to tackle marriages of convenience by extending
powers for registrars in England and Wales to share information
and for a new referral and investigation scheme, to be introduced
across the UK from early 2015.
"The Immigration Act will increase the marriage
and civil partnership notice period from 15 days to 28 days in
England and Wales for all couples. Similar provision is made in
the Marriage and Civil Partnership (Scotland) Act 2014. The Immigration
Act allows the notice period to be extended to 70 days where there
are reasonable grounds to suspect a sham. This will enable the
Home Office to investigate the genuineness of the couple's relationship
before the marriage or civil partnership takes place and enable
us to take enforcement or other immigration action in cases established
as a sham.
"For Member States where marriages of convenience
account for a significant proportion of abuse, but measures are
not sufficiently in place to deal with this, the Handbook is likely
to be of benefit. The Handbook is also helpful in raising the
profile of this issue and promoting operational co-operation between
Member States to tackle such abuse more widely. In addition, guidance
within the Handbook on using indicators as a means of targeting
likely cases of abuse is helpful and reaffirms the UK's current
operational practice within the UK. The UK will continue to review
whether any of our domestic processes could be improved by implementing
any of the operational suggestions included in the Handbook.
"During the preparation of the Handbook
the UK made a number of comments on its drafting, many of which
are reflected in the final version. Although we are generally
satisfied that UK views have been taken into account, one issue
of continuing concern is the link made in section 3.3.2 between
measures taken to prevent abuse under Article 35 of Directive
2004/38/EC and the assessment of proportionality for public policy
or public security reasons under Article 28 of the Directive.
The Government has made clear to the Commission that, in our view,
the assessment of proportionality required by Article 28 is applicable
to decisions taken on grounds of public policy or public security
and would not apply in the same way to decisions taken in cases
of abuse or fraud."[54]
16.25 The Minister notes that the Communication fulfils
one of the actions envisaged in an earlier Commission Communication
on the free movement of EU citizens and their families which we
recommended for debate on the Floor of the House in January 2014,
but adds that the debate "has been delayed".[55]
Previous Committee Reports
None, but Twenty-ninth Report HC 83-xxvi (2013-14),
chapter 12 (8 January 2014) and Thirty-first Report HC 83-xxviii
(2013-14), chapter 2 (22 January 2014) are relevant.
44 9650/12, http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%209650%202012%20INIT. Back
45
(35590), 16930/13; the relevant Report chapters are listed at
the end of this chapter. Back
46
See the Explanatory Memorandum of the then Minister for Immigration
(Mr Mark Harper) on document 16930/13 which is summarised in our
Twenty-ninth Report of Session 2013-14 listed at the end of this
chapter. Back
47
Article 20 of the Treaty on the Functioning of the European Union
(TFEU). Back
48
Articles 2(2)(a) and 3 of Directive 2004/38/EC, OJ No. L 158,
30.04.04. Back
49
See p.2 of the Commission Communication. Back
50
See p.3 of the Commission Communication. Back
51
See p.5 of ADD 1. Back
52
See p.26 of ADD 1. Back
53
See p.33 of ADD 1. Back
54
See paras 11-14 of the Minister's Explanatory Memorandum. Back
55
See para 4 of the Minister's Explanatory Memorandum. Back
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