5 Sham marriages/civil partnerships
Background
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.
Non-discrimination
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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