House of Commons - The work of the Immigration Directorates (October - December 2013)

The work of the Immigration Directorates (October - December 2013) - Home Affairs Committee Contents

1 Sham marriages

1. The Home Office has described sham marriages and sham civil partnerships as posing "a significant threat to UK immigration control."[1] A sham marriage is a marriage or civil partnership of convenience,[2] contracted for the purpose of avoiding the effect of one or more provisions of UK immigration law or the immigration rules, by a couple who are not in a genuine relationship.[3] Typically, one party is from within the European Economic Area (an EEA national) and the other is a non-EEA national, usually with temporary or uncertain immigration status.[4] By marrying the EEA-national, the non-EEA national acquires the right to reside in the UK under the 2004 Free Movement Directive.[5] Of course, not all marriages between EEA and non-EEA nationals are sham marriages, and it is important to distinguish between marriages of convenience and genuine marriages between couples of different nationalities. Our concern is with marriages which are entered into solely to circumvent the immigration laws.

2. We are grateful for the work of John Vine CBE QPM, the Independent Chief Inspector of Borders and Immigration, who has carried out two relevant inquiries into this matter recently, and gave oral evidence to us. In his opinion, the problem of sham marriages is "an increasing threat to immigration control".[6] He pointed out that someone who marries an EEA national acquires the same Treaty rights as the EEA national, including the right to reside indefinitely in the UK and to bring their descendants, their children or dependent children or grandchildren, and their dependent parents or grandparents to live in the UK.[7]

3. We agree with the Independent Chief Inspector when he said that sham marriages represent a significant threat to immigration control. The bogus spouse acquires not only the right to reside in the UK, but the right to bring their children, grandchildren, parents and grandparents to live here with them. Thus one sham marriage can provide UK residence rights to an entire extended family who would otherwise have no right to be here.

4. We carried out an on-line survey of registrars across the country, asking for details on the number of marriages and civil partnerships in their area, and the number of suspect sham weddings they had reported since 2011. The Committee is grateful to the registrars who provided data, and particularly to Jonathan Kershner, Registration and Coroner Services Manager at Manchester Registrar Office, and Alicja Gilroy, Superintendent Registrar at Oxford Register Office, for giving oral evidence.[8]

Marriage and immigration

5. At the moment, all those who wish to have a church wedding have to give notice to the church. If they wish to have a civil ceremony then they have to give notice to the registry office. The couple must be resident in England or Wales for at least 7 days. The notice must state where the marriage will take place and both partners are required to provide evidence of name, date of birth, marital status and nationality. Giving false information is a criminal offence. At present, the minimum time period between giving notice and the date of the ceremony is 15 days. If one partner is a non-EEA national then they have to register at a "designated" register office.[9]

6. Following the passing of the Immigration Act 2014, this notice period will be extended from 15 days to 28 days,[10] and a couple that includes a non-EEA national who wish to marry in the Anglican Church in England or Wales must also follow civil preliminaries first. All notices for a marriage in England and Wales involving a non-EEA national who might benefit with regard to their immigration status will be referred to the Home Office for a decision on whether the proposed marriage is a potential sham. If the Home Office decides to investigate further, it can extend the notice period to 70 days in order to examine the genuineness of the couple's relationship. Failure to comply with the requirements of a Home Office investigation will mean the couple cannot get married. The Act will also require non-EEA nationals to provide evidence of immigration status. The documents that will be accepted as proof of identity or nationality are to be prescribed in regulations.[11]

RESIDENCE CARD APPLICATIONS

7. Marriage to an EEA national does not necessarily mean the non-EEA spouse gains indefinite leave to remain, but it enables a non-EEA national to:

· apply under the Immigration Rules to stay in the UK as the spouse or civil partner of a British Citizen or a non-EEA national settled in the UK; or

· reside as the spouse or civil partner under the Immigration (EEA) Regulations 2006, or

· do nothing, allow any current leave to lapse and, if detected, seek to remain in the UK on the basis of their right to respect for family life under Article 8 of the European Convention on Human Rights.[12]

The non-EEA spouse of an EEA national who is exercising Treaty rights can choose to apply to the Home Office for a residence card as confirmation of their right to reside in the UK. They are not required to do so, and the residence card does not itself confer any new rights on the holder, but it confirms their existing right to be in the UK by virtue of their marriage.[13]

8. All these pathways allow the applicant to remain in the UK without applying for immigration status in their own right, a process which would require a more onerous burden of proof. As John Vine explained:

9. Furthermore, the spouse and civil partner route for non-EEA nationals under the 2006 Regulations is open to visitors to the UK—there are no maintenance, accommodation or language requirements—and the couple do not need to show, at the time the non-EEA national applies for a residence card, that the marriage or civil partnership remains or that they still intend to live together.

10. The UK can refuse a residence card application in a marriage or civil partnership where:

· the EEA spouse/civil partner is not present in the UK,

· the EEA spouse/civil partner is present in the UK, but not exercising Treaty rights,

· the couple are not lawfully married or in a civil partnership, or

· the marriage or civil partnership is one of convenience (i.e. a sham).

In order to prove that the marriage is a sham, the Home Office must prove that the marriage or civil partnership was not genuine at the moment it was entered into, regardless of its status at the point of application.[15]

11. The Independent Chief Inspector looked at a sample of residence card applications made by non-EEA nationals on the strength of their relationship, often marriage, with an EEA national. He found that 43% of the refusals for residence cards were from over-stayers or illegal immigrants. He found that it was common for the non-EEA national to make an application and, if refused, simply to repeat the application. Under EU Treaty rights law, there is no limit on the number of applications that can be made, and in the meantime no enforcement action can be taken if there is an application pending.[16] Mr Vine said 72% of the refusals were repeat applications.

12. Mr Vine also noted that it was easier to become a naturalised citizen in some EEA countries than in others. In the UK it takes five years. In Italy, a spouse can apply for citizenship after being married to an Italian national and resident for one year if there is a child involved. In Germany, it is possible for a partner to become naturalised after three years of residency.[17] It is not uncommon for someone born outside the EEA to live in a European country and become a naturalised citizen. They then can marry someone from the country of their birth and sponsor their application for a residence card. In John Vine's sample, these applications were more likely to be refused: between October 2013 and January 2014, the refusal rate for applications from EEA nationals who were naturalised citizens was 59%, compared with a refusal rate for western Europeans generally of 53%.[18]

13. The most common non-EEA nationals involved in John Vine's sample were those from Pakistan, Nigeria, Ghana, and Brazil.[19] The EEA nationalities were more evenly spread, though with slightly more nationals from Eastern Europe.[20] Below is a table from the Independent Chief Inspector's report on European casework listing the nationalities of the EEA nationalities and the nationalities of their partners:

Nationalities of partners of the East European EEA nationals in sample

EEA nationalities Nationalities of partners

Lithuania Bangladesh, Georgia, Nigeria, Pakistan (4), Sri Lanka (2), Ukraine (3), USA

Poland Brazil, Ghana, India, Iran, Mauritius, Pakistan, Philippines, Russia, Turkey (2)

Hungary Brazil, India, Nigeria (2), Pakistan (2)

Slovakia Nigeria (3), Pakistan (3)

Latvia Albania, Ghana, Ukraine (2)

Czech Republic Nigeria, Pakistan

Estonia Bangladesh, Ukraine

Romania[21] Israel

14. The Registrars who gave evidence to us said the nationalities of those involved tended to come in waves, but the current countries of origin they mentioned included Portugal, Lithuania, Poland and Slovakia.[22] Alicja Gilroy, Superintendent Registrar of Oxford Register Office, said that some of the Eastern European women were young and vulnerable, and suspected they had been offered money to go through with the marriage and make a new start in Britain.[23]

The size of the problem

15. The Home Office has estimated that about 4,000 to 10,000 applications to stay in the UK in 2013 were made on the basis of a sham marriage,[24] although it has said that this broad estimate should be approached with caution.[25] When asked his view on the 4,000 to 10,000 estimate, John Vine said "the Home Office does not really know" the scale of the problem and "the fact that we are estimating in the first place says it all." Furthermore, Mr Vine got the impression from talking to Home Office staff that the issue was "more widespread" than the figures suggested.[26]

Reporting suspicious marriages

16. If a registrar has reasonable grounds for suspecting that a marriage of which notice has been given will be a sham marriage, they have a duty under sections 24 of the Immigration and Asylum Act 1999 to report their suspicions to the Home Office without delay. In 2010, some 934 suspect sham marriages were reported in this way. By 2013, this had more than doubled to 2,135.[27]

17. The first priority for registrars, as those who gave evidence told us, is to make sure that genuine couples, who want to get married for the right reasons, share one of the happiest days of their lives. John Kershner, Registration and Coroner Services Manager, Manchester Registrar Office, described to us how offensive it was for registrars to find themselves having to carry out sham ceremonies:

18. There are areas, like Manchester and Oxford, where the Registrars are reporting shams and addressing the problem. However, when the Independent Chief Inspector looked at the figures for section 24 reports from 2012, he found "there were certain cities in the UK where there were no sham marriages reported."[29] He did not name particular places which appeared to be under-reporting, as he was conscious of the risk of displacing criminal activity from one place to another, but he did say in evidence that he was not satisfied that some registrars were doing their job in this respect.[30]

19. The responses from registrars to our on-line survey showed variation in the number of suspect sham marriages over time and from place to place. In some places the level of reporting was zero, whereas staff in Manchester were submitting section 24 reports on a daily basis.[31] We showed Mr Vine the responses we had received from registrars across the country and he said the evidence backed up what he had found, that there are huge variations in the number of reports,[32] and that "this inconsistency is crying out for analysis."[33]

20. The fact that the burden is on the Home Office to show that a marriage was a sham when it entered into, regardless of its current state, means that intervening at or before the point of marriage will usually be the most effective way of tackling this growing problem. We would also suggest that early intervention in cases of obvious shams is likely to be more cost-effective, as it reduces the scope for lengthy casework and possibly legal appeals after the event. Effective joint working between the Home Office's Immigration Enforcement Directorate and local authority registrars is therefore the key to tackling the problem of sham marriages.

21. We accept that there might be some registration districts where the number of sham marriages is very small indeed, but we find it implausible that there should be sizeable cities in the UK where there are no sham marriages at all. Registrars need to be aware that sham marriages appear to be a growing problem and that they have a duty to report those that they suspect are sham marriages. We recommend that the Home Office provide additional training for registrars, targeted at those registration districts where the number of section 24 reports is unusually low in comparison to similar districts, on how to recognise the signs of a possible sham marriage and the circumstances in which a section 24 report should be made.

22. We should not under-estimate the duplicity of those involved in organising sham marriages, which has turned into an industry and appears to be increasing at an alarming rate. Given the Home Office's stated strong commitment to enforcement, all those involved in the process must remain vigilant to those individuals trying to exploit loopholes in the system.

23. The Independent Chief Inspector of Borders and Immigration told us that the Home Office does not appear to know how many people are securing the right to stay in the UK on the basis of a sham marriage. Whilst we are aware that publishing data that shows hot-spots of sham marriage activity might give information to organised criminals, we want the Home Office to demonstrate that they take the issue seriously. The Home Office should publicise the data that they have on the levels of reporting, the number of interventions, the number of arrest, the number of prosecutions and the number of removals.

Home Office and enforcement

24. The registrar has a role in registering the marriage or civil partnership, and possibly in officiating at the ceremony, but the decision on whether or not to intervene is the responsibility of the Home Office Immigration Enforcement team. The purpose of the extension to the notice period in the Immigration Act 2014 is to provide the Home Office with more time to decide before the marriage or civil partnership takes place.[34] In the absence of Home Office intervention, the registrar is obliged to proceed with the marriage.[35]

25. Alicja Gilroy described an example of when Home Office Enforcement investigated a suspicious marriage she had reported.[36] The section 24 report had been based on three reasons: there was little interaction between the couple, they did not share a common language, and one party was an over-stayer.[37] She pointed out that recognising the non-EEA person was an over-stayer was not justification by itself to report the marriage. When they arrive at a suspected sham marriage, the Home Office team explain to the bride and groom who they are, then interview them separately. In this example, the interviews lasted for an hour and a half. At the end, the wedding did not take place. If the Home Office decide not to act upon the section 24 report, then the Registrar has no choice but to proceed.[38]

26. John Vine reported that, between 14 January and 30 September 2013, the Home Office carried out 500 such operations, leading to 334 arrests and 78 people being removed from the country.[39] James Brokenshire MP, Immigration and Security Minister, told us that in the period July to December 2013, Immigration Enforcement carried out 796 interventions, which led to 466 arrests. That was as compared to 221 arrests during the whole of the previous year, "so there has been a step up on enforcement".[40]

27. John Vine found that there was a great deal of disparity in levels of activity between the 19 immigration enforcement teams across the UK.[41] Part of this appeared to be resourcing:

28. Part of the problem appears to be the relationship between registrars and the Home Office enforcement team. In areas of high activity, such as Brent, the enforcement team and the registrars have good relationship.[43] The response from registrars to our request for data on sham marriages revealed that even in places where there was a high number of shams reported, there was almost no feedback from the Home Office as to what action they took as a result of section 24 reports. Alicja Gilroy told us that, while there was work at a high level between the National Panel for Registration and the Home Office, individual registrars "don't have much feedback, not on how to improve our section 24 reports"[44] The section 24 report is submitted electronically,[45] so the feedback could be electronically.[46]

29. Manchester reported 166 suspected sham marriages in 2013 yet received no feedback as to whether any of these reports led to any action. Jonathan Kershner told the Committee that his office reported a suspect sham marriage and then found out about the prosecution afterwards by reading the Manchester Evening News. Mr Kershner said "If I had not bought the paper on that day I would not have known about it."[47]

30. The Immigration Act 2014 has extended the minimum time between a couple giving notice of their intent to marry and the ceremony, allowing more time for the Home Office to act on reports sent from registrars. The registrars represent a crucial source of intelligence to the Home Office about potential sham marriages and we expect the Home Office to act upon those reports. We recommend that the law be changed so that if the Home Office enforcement team do not act upon the section 24 report, and the registrar is confident the wedding is a sham, then the registrar should have the power to not proceed with the wedding.

31. It is clear that there is a blind spot which leads to the under-reporting of sham marriages. The registrars that gave us evidence told us that they received little or no feedback from the Home Office in response to their section 24 reports. Registrars were consistently unable to tell us how many of their reports led to further action or no action, or, more, importantly whether or not they led to a prosecution.

32. The Home Office must, as a matter of routine, provide registrars with feedback on every section 24 report: whether it resulted in no action, in an individual being removed from the country, in prosecution, or some other outcome. This will help to reinforce to registrars the importance of reporting potential sham marriages, it will help them over time to develop a better understanding of the nature of the problem, and it will help to foster a spirit of mutual co-operation between registrars and the Home Office. Crucially, it will reassure the public. Similarly, we believe that there should be an opportunity for registrars to provide feedback to the Home Office in cases where they feel their well-founded suspicions were not acted on, and to receive an explanation for the Home Office's action in the case.

33. It is apparent from the reports of the Independent Chief Inspector that the level of resources applied to this problem is critical, and we are not convinced that the current level of resourcing is sufficient compared to the scale of the abuse.

PROSECUTIONS

34. Anyone who commits a criminal offence related to a sham marriage, such as perjury, can be prosecuted.[48] In reality, this happens only rarely. John Vine told us that there was "no evidence of individual abuse being pursued by way of prosecution and I cannot understand the reason why that is the case".[49] He added this lack of prosecution sends the wrong message:

35. Where there were prosecutions, they appeared to be in cases involving organised crime, but that information was anecdotal. The Home Office was unable to provide the Chief Inspector with any management information about the number of prosecutions or removals from the UK as a result of sham marriage because it was not being captured routinely.[51] He understood the Home Office was trying to establish an intelligence unit in Liverpool to provide better intelligence but it was not able to inform his inspection carried out from October 2013 to January 2014.[52] Mandie Campbell, Director General of the Immigration Enforcement Directorate, told us in April that the "the move into a new enforcement command has seen a significant increase in the relationship and the numbers of interventions in relation to potential sham marriages."[53]

36. The Home Office was unable to provide the Chief Inspector of Borders and Immigration with management information on the number of prosecutions or removals from the UK as a result of sham marriage. Without any such data it is hard to believe any assurance from the Government that they are prioritising the problem and pursuing those who are attempting to circumvent immigration rules. Successful and well publicised prosecutions would help deter those from considering taking part in a sham marriage and incentivise registrars, and the general public, to report their suspicions. The number of section 24 reports more than doubled between 2010 and 2013. The Home Office should be able to tell the Committee what impact that increase had on prosecutions and on removals.

37. The Home Office should write to the Embassies of those European nationals who are most commonly involved in sham marriages, and encourage them to inform those who pass through their Embassy or Consulate that being involved in a sham marriage can lead to a criminal record and removal from the UK.

Proxy marriages

38. Some countries, such as Nigeria and Ghana, allow proxy marriages in which one or both partners are not present. Proxy marriages may take place where the wedding ceremony takes place in a different country, or even a different continent, from both the people involved. At the same time, both partners are living in the UK and, if genuine, could more easily get married here. In cases of proxy marriage entered into overseas, the question for the Home Office is not so much whether the marriage is genuine, but whether it was lawfully conducted in the country where it took place. British common law recognises marriages within the traditions of other countries, as long as those marriages are lawfully conducted. The burden of proof is on the Home Office to show, on the balance of probabilities, that the ceremony was unlawful.[54] John Vine spoke to one member of Home Office staff who described it as a "nightmare" trying to gather evidence and documentation on proxy marriages overseas.[55] In the sample of residence applications he examined, the ones that relied upon a proxy marriage were refused as the ceremony was found to be unlawful.[56]

39. While we agree with the general principle of respecting marriage ceremonies held in other countries, it seems absurd that two people, both resident in the UK, can be lawfully married for the purposes of British law by means only of a proxy ceremony carried out overseas. At the moment, the burden of proof is on the state to prove the proxy marriage is unlawful. The burden of proof should be on the couple applying for a residence card, based on a proxy marriage, to prove the proxy marriage is lawful.

1 The Home Office, Sham Marriages and Civil Partnerships, November 2013 Back

2 Hereafter, we use the term "sham marriage" to refer to both sham marriages and sham civil partnerships, except where otherwise specified. Back

3 Immigration and Asylum Act 1999, s. 24 (Duty to report suspicious marriages). See also Immigration Act 2014 s. 55 and s.56 Back

4 For example, someone with a visa or limited leave to remain which is unlikely to be extended, or who has been refused an extension to their current visa or limited leave to remain, or who has already over-stayed, or is an illegal immigrant Back

5 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States Back

6 Independent Chief Inspector of Borders and Immigration, A Short Notice Inspection of a Sham Marriage Enforcement Operation 14-24 October 2013, January 2014 Back

7 Q 135 Back

8 A list of the Registrars who responded is included as an annex. Back

9 A list of the designated registry offices is attached as an annex. Back

10 The extension to 28 days will apply to all weddings, including those between two British citizens. Marriages in the Church of England or Wales involving a non-EEA national will only be able to go ahead following the civil preliminaries. Back

11 Immigration Act 2014 s.28 Back

12 The Home Office, Sham Marriages and Civil Partnerships, November 2013 Back