Legislative Scrutiny: Immigration Bill - Joint Committee on Human Rights Contents

5  Sham marriages/civil partnerships


109.  Part 4 of the Bill[67] contains new powers to investigate suspected sham marriages and civil partnerships. The Government says that sham marriages or civil partnerships, which are undertaken for immigration advantage by a couple who are not in a genuine relationship, pose a significant threat to UK immigration control.[68] The Home Office estimates that 4,000 to 10,000 applications a year to stay in the UK are made on the basis of a sham marriage or civil partnership.

110.  In 2004 a "Certificate of Approval" scheme was introduced by the Asylum and Immigration (Treatment of Claimants etc.) Act 2004, which required certain couples to obtain the Secretary of State's approval before marrying. Our predecessor Committee at the time raised concerns about the scheme's compatibility with the ECHR, and the scheme was subsequently found by both the House of Lords and the European Court of Human Rights to be incompatible with the Convention.

111.  The Certificate of Approval Scheme was abolished in 2011 by the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (Remedial) Order 2010. We scrutinised the Remedial Order and were satisfied that it removed the incompatibility with the Convention identified by the European Court of Human Rights.[69] In the course of our scrutiny, we asked the Government about its future policy proposals for tackling sham marriages, to which the Government replied that it was not then anticipating a single measure to replace the Certificate of Approval scheme:

16. In our first Report, we recommended that the Government should provide further information on its future policy proposals designed to prevent "sham" marriages, the original policy objective of the Certificate of Approval scheme. We explained our view that this information would be important to Parliamentarians in deciding whether to approve the Order. In his letter, the Minister explains that:

Tackling sham marriage is a top priority for the Government. We are not currently anticipating a single measure to replace the Certificate of Approval scheme. Instead we are pursuing a range of actions and measures which together we believe will form an effective response to the problem. We are investigating suspected abuse and where possible will disrupt marriages before they take place.

112.  The Government's Factsheet accompanying the Bill explains the rationale for this Part of the Bill. It says that since the abolition of the Certificate of Approval scheme in 2011, the number of reports of suspected sham cases received has continued to increase, with 1,891 reports received in 2012. It states that "[a]t the moment we have the ridiculous situation where a registrar cannot stop a marriage or civil partnership they believe to be a sham, but the current 15 day notice period provides very little time for the Home Office to act before the ceremony takes place." The Impact Assessment accompanying the Bill says that legislative changes are required to allow registration officials to refer to the Home Office information on all couples intending to enter into a marriage or civil partnership where at least one party could gain an immigration advantage, enabling the Home Office to assess, investigate and, if appropriate, take enforcement or other immigration action under existing powers.

113.  To this end the Bill provides for a new referral and investigation scheme for proposed marriages and civil partnerships involving a non-EEA national subject to immigration control, by amending and extending the marriage and civil partnership notice process, to better enable the Home Office to identify and investigate suspected sham marriages and civil partnerships.

The need for legislation

114.  In view of the Government's statement of its intentions at the time of the 2011 Remedial Order, and its confidence that the actions and measures it was then pursuing would be effective, we asked the Government for a more detailed explanation of the necessity for further legislation, including the evidence which shows the scale of the problem to which Part 4 is the legislative response.

115.  In its response the Government explains the basis for its estimate that between 4,000 and 10,000 applications a year are made on the basis of a sham marriage. The lower figure has been calculated on the basis of the number of reports of suspect marriages received from registrars, expressed as a percentage of the total number of marriages or civil partnerships where one party may stand to gain an immigration advantage. The formula provided by the Government in fact produces a lower figure of 3,500. The Government has not provided any evidence showing how many reports of suspected sham marriages or civil partnerships are in fact proved to have been sham. The upper figure of 10,000 has apparently been arrived at by asking senior caseworkers dealing with applications based on marriage or civil partnerships to estimate the proportion of such applications which are based on a sham. No details have been provided of the methodology applied to arrive at this upper figure, such as the number of senior caseworkers surveyed, or when they were asked.

116.  The Government rightly accepts that the broad estimate it relies on "should be approached with caution", but it believes that it "does provide an indication of the potential scale of abuse. The number of reports of suspicious marriages or civil partnerships received from registrars has risen in the last two years, from 934 in 2010 to 1,741 in 2011 and 1,891 in 2012 and is on course to sustain that trend this year.

117.  We draw to Parliament's attention the questionable strength of the evidence relied on by the Government to demonstrate the necessity for legislating to supplement the powers that already exist to combat sham marriages. The evidence demonstrates a recent sustained increase of about 800 to 900 in the number of annual reports of suspicious marriages or civil partnerships, but beyond this there little firm evidence of the scale of the problem. Parliament may wish to bear this in mind when it considers the proportionality of the proposed scheme's interference with the right to marry in Article 12 ECHR and the right to respect for private life in Article 8 ECHR, and the right not to be discriminated against in relation to the enjoyment of those rights.

The right to marry

118.  As the Government's ECHR Memorandum correctly acknowledges, the provisions in Part 4 engage the right to marry in Article 12 ECHR.[70] The approach of the European Court of Human Rights to limitations on the right to marry in Article 12 ECHR was explained in the case of O'Donoghue v UK, which concerned a challenge to the previous Certificate of Approval scheme:

1.  The Convention institutions have accepted that limitations on the right to marry laid down in the national laws may comprise formal rules concerning such matters as publicity and the solemnisation of marriage. They may also include substantive provisions based on generally recognised considerations of public interest, in particular concerning capacity, consent, prohibited degrees of affinity or the prevention of bigamy. In the context of immigration laws and for justified reasons, the States may be entitled to prevent marriages of convenience, entered solely for the purpose of securing an immigration advantage. However, the relevant laws—which must also meet the standards of accessibility and clarity required by the Convention—may not otherwise deprive a person or a category of persons of full legal capacity of the right to marry with the partners of their choice. [...]

84. The fundamental nature of the right to marry is reinforced by the wording of Article 12. In contrast to Article 8 of the Convention, which sets forth the right to respect for private and family life, and with which the right "to marry and to found a family" has a close affinity, Article 12 does not include any permissible grounds for an interference by the State that can be imposed under paragraph 2 of Article 8 "in accordance with the law" and as being "necessary in a democratic society", for such purposes as, for instance, "the protection of health or morals" or "the protection of the rights and freedoms of others". Accordingly, in examining a case under Article 12 the Court would not apply the tests of "necessity" or "pressing social need" which are used in the context of Article 8 but would have to determine whether, regard being had to the State's margin of appreciation, the impugned interference has been arbitrary or disproportionate. [...]

2.  It is clear from the Court's case-law and from earlier Commission decisions that a Contracting State may properly impose reasonable conditions on the right of a third-country national to marry in order to ascertain whether the proposed marriage is one of convenience and, if necessary, to prevent it. Consequently, a Contracting States will not necessarily be acting in violation of Article 12 of the Convention if they subject marriages involving foreign nationals to scrutiny in order to establish whether or not they are marriages of convenience (see Klip and Krger v. the Netherlands, Sanders v. France, both cited above, and Frasik v. Poland, cited above, 89). Such scrutiny may be exercised by requiring foreign nationals to notify the authorities of an intended marriage and, if necessary, asking them to submit information relevant to their immigration status and to the genuineness of the marriage (Klip and Krüger v. the Netherlands). Moreover, a requirement that a non-national planning to marry in a Contracting State should first obtain a certificate of capacity will not necessarily violate Article 12 of the Convention (Sanders v. France). Consequently, the Court agrees with the House of Lords that the requirement under section 19 of the 2004 Act that non-EEA nationals submit an application to the Secretary of State for the Home Department for a Certificate of Approval before being permitted to marry in the United Kingdom is not inherently objectionable.

119.  As far as compatibility with the right to marry is concerned, there is nothing inherently objectionable about the Bill's proposed referral and investigation scheme.


120.  The Government's ECHR memorandum also correctly acknowledges that the provisions in Part 4 of the Bill also engage the right not to be discriminated against in the enjoyment of that right on grounds of nationality or immigration status, unless there is an objective and reasonable justification for any difference of treatment, which must also be proportionate to the legitimate aim of immigration control.

121.  The Government envisages that where a marriage or civil partnership is referred to the Secretary of State under the provisions in the Bill, the Home Office will identify suspect proposed marriages or civil partnerships by running the referral against "agreed intelligence-based risk profiles and factors." Because of the risk that such profiling may include unjustifiably discriminatory assumptions based on nationality or immigration status, we asked the Government for some more details about how this would operate in practice.

122.  Asked about the criteria the Government proposes to use to identify suspect marriages or civil partnerships, the Government says that the referral will be assessed against intelligence/evidence based risk profiles and factors to identify whether it is at high risk of being a sham marriage or civil partnership, e.g. that one or both parties "is of a nationality at high risk of involvement in a sham, on the basis of objective information and intelligence about sham cases." The profiles and factors will be based on intelligence and evidence, such as recent suspicious marriage/civil partnership reports from registrars, recent sham-based enforcement and prosecution cases and recent applications refused on the basis that the relationship is not genuine.

123.  Significantly, the Government says that consideration will be given, in light of the detail of the process to be put in place, as to whether a Ministerial authorisation is necessary under an exemption in the Equality Act 2010[71] to ensure that any nationality-based risk-profiling used as part of the process for identifying suspected sham cases for investigation under the scheme is properly authorised, in which case the Equality and Human Rights Commission will be consulted on the proposed terms and operation of that authorisation.

124.  The Government's response suggests that it is intending to adopt an approach which discriminates on grounds of nationality, and to invoke an exemption from the Government's obligations under the Equality Act 2010. The Equality Act exemption relieves the Government of the need to demonstrate objective and reasonable justification for such discrimination, but it only operates in relation to the obligations in the Equality Act. It does not provide an answer to questions of compatibility with Article 14 ECHR in conjunction with the right to marry in Article 12. Under the ECHR, discrimination on grounds of nationality requires reasonable and objective justification which must be "weighty". We encourage the Government to work closely with the EHRC with a view to developing an approach to identifying suspect proposed marriages or civil partnerships without resorting to unjustified discrimination on grounds of nationality.

67   Clauses 43-56 and Schedules 4 and 5. Back

68   Explanatory Notes para. 26. Back

69   Proposal for the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Remedial) Order 2010 (Fifth Report, Session 2010-12, HL Paper 54, HC 599). Back

70   ECHR Memroandum, paras 145-161. Back

71   Schedule 3, Part 4, para 17(4)(a). Back

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Prepared 18 December 2013