Documents Considered by the Committee on 22 October 2014 - European Scrutiny Committee Contents

16 Handbook on marriages of convenience

Committee's assessment Politically important
Committee's decisionCleared 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)

Document detailsCommission 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
Legal base
DepartmentHome 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.


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.


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.


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.


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.


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, 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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