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The truth about the "Sham Marriage Industry"

About The Author

Ivonna Beches (Writer)

Ivonna is a third year law student at Durham University, currently undertaking a study year abroad at the University of Groningen in the Netherlands. Ivonna aspires to be a barrister, and has a keen interest in immigration law. Outside her studies, Ivonna is a keen writer, and is currently working on a novel.

What are sham marriages?

Sham marriages and civil partnerships are also widely known as marriages of convenience. This is because by definition, a “sham marriage” is not a union involving two people who are in a relationship, but is a union established to bypass immigration rules. Sham marriages tend to occur when a non-European national marries someone from the European Economic Area (EEA), including the UK, as a way of gaining long-term residency in the UK. Regardless of its deceptive nature, the union itself remains legally valid, provided it meets all the formal legal requirements for marriage.

The immediate safeguard to this problem is that entering into a sham marriage does not automatically provide migrants with any permanent right to remain in the UK, as this leave must still be applied for separately. In addition, under s.24 of the Immigration and Asylum Act 1999, superintendent registrars have a duty to report to the Secretary of State any suspicious marriages where they have reasonable grounds for suspecting that a sham marriage is taking place. The report should lead to an inspection by the Home Office’s enforcement team, but this does not always happen, thus allowing the problem to grow at a reportedly alarming rate.

However, apart from the general and vague suggestion that the number of sham marriages has been increasing year on year, none of the statistics on the issue are particularly reliable. Home Office figures consist of the number of marriages reported as suspicious, as well as arrests, which may or may not have involved sham marriages. As a 2013 Guardian article which investigated the truth behind the allegation that 20% of all civil services are fake suggested:

… [B]randing tens of thousands of civil ceremonies each year a 'sham' for immigration purposes is probably a highly misleading overestimate. On the other hand, the only available numbers on registrars' reported suspicions, arrests and criminal convictions may also fail to capture the full scale of the issue.

This highlights one of the main issues with sham marriages: there is no one foolproof system that allows all perpetrators to be tracked down. When “proxy weddings” (ceremonies carried out overseas, where the subsequent marriage certificate is used to win residency rights for the non-European spouse) are factored in, the process becomes even more difficult, making it virtually impossible to determine with any certainty how many of these ceremonies are carried out in the UK each year. Hysteria-promoting publication of these unreliable figures, in addition to tougher sanctions being imposed by the legislature, have sadly led to completely legitimate weddings being targeted in an effort to clamp down on sham marriages.

An "industry" of fake weddings

Earlier in September, Reverend Nathan Ntege was accused of conducting 494 fake marriages between December 2007 and March 2011, at St Jude’s with St Aidan’s Church in Thornton Heath, South London. Ntege profited personally from these arrangements, but he did not work alone. The team he was involved with was responsible for finding EEA nationals willing to marry, as well as preparing fake addresses and details in order to marry individuals who had never met prior to the ceremony. Ntege’s involvement enabled the ceremonies to take place in the church.

A further example was seen in 2010 when, Reverend Alex Brown was jailed for four years in what was described at the time as 'Britain’s biggest ever fake wedding scam'. He operated in a manner similar to Reverend Ntege, alongside an immigration solicitor who facilitated these weddings for his clients, but only presided over 338 marriages at the Church of St Peter and St Paul in St Leonards-on-Sea, East Sussex. 

In both cases the parties involved were convicted of assisting unlawful immigration (facilitation) under s.25(1) of the Immigration Act 1971 (substituted after 2003 by s.143 Nationality, Immigration and Asylum Act 2002) and/or conspiracy to facilitate breach of immigration law under s.1(1) of the Criminal Law Act 1977. However, two questions remain: what does the system doto prevent these offences from being committed in the first place, and how are political insistences that the government can get immigration “under control” being implemented?

Attempts at preventative measures in statute

The Home Office Immigration Rules do not prevent sham marriages from taking place but they do have a significant role to play in preventing these marriages from having a long-term damaging effect on immigration. Part 8 includes provisions relating to family members in general and, paragraphs 284 – 287 set out the requirements for applications for both an extension of stay and indefinite leave to remain in the country.

Paragraph 284 is the most important in this context as it sets out the requirements for an extension of stay which include the parties to the marriage or civil partnership having met, the marriage not having taken place after a decision to deport the applicant has been taken, both parties intend to live together and their marriage is subsisting, and they have adequate accommodation for themselves and any dependants without recourse to public funds. The applicant must also have passed an English Language test and must have a certificate they can present as a result. Paragraph 285 and 286 clarify that the extension to stay lasts for 2 years and that it is granted with the discretion of the Secretary of State, who decides if all or enough of the requirements have been met. Paragraph 287 sets out that an application for leave to remain is dependent both on the same requirements as those mentioned in paragraph 284, and on the applicant having previously been provided with an extension of stay. 

Unfortunately, these rules do not prevent sham marriages from taking place, as they do not take into account the fact that documents might be successfully falsified in order to meet the requirements, and they do nothing to regulate proxy marriages. The rules are simply a hurdle that makes the process of gaining leave to remain slightly more difficult for all immigrants whether their marriages are genuine or not.

A more specific mode of regulation comes in the form of s.24 of the Immigration and Asylum Act 1999 alongside the amendments made to it in Part 4, Chapter 2, ss.55 and 56 of the Immigration Act 2014. As mentioned previously, s.24 of the Immigration and Asylum Act places a duty on any registrars to whom a “notice of marriage” or an “approved certificate” has been given to report any marriages they suspect to be shams on reasonable grounds. The Immigration Act 2014, in an attempt to improve reporting rates and perhaps make them more effective, adds, in s.56, that a duty to report also exists if the registrar in question received “information in advance” of a person giving a notice of marriage or providing the registrar with an approved certificate. These changes add a pre-emptive layer to the to the extent that a registrar can report suspicions even before the couple attempts to go through with the wedding. S.24(5) of the Immigration Act 1999 states that:

(5) “Sham marriage” means a marriage (whether or not void)—

(a) entered into between a person (“A”) who is neither a British citizen nor a national of an EEA State other than the United Kingdom and another person (whether or not such a citizen or such a national); and

(b) entered into by A for the purpose of avoiding the effect of one or more provisions of United Kingdom immigration law or the immigration rules.

S. 55 of the Immigration Act 2014, however, extends and clarifies this definition by adding that a sham marriage can also be considered void if 'there is no genuine relationship between the parties to the marriage' and the parties are either trying to 'avoid the effect of one or more provisions of United Kingdom Immigration law' or trying to 'obtain a right conferred by that law or those rules to reside in the United Kingdom'.

While these changes are important, two problems immediately appear. As referenced above, these tougher regulations have led to fears that an increased number of legitimate weddings are being targeted and interrupted on the basis of suspicions that are completely unfounded. On the other hand, the more damning problem is that registrars do not seem particularly well qualified to actually report on their suspicions, not to mention the risk of corruption, leading John Vine, the chief inspector of borders and immigration to conclude that the number of sham marriages that go unreported is potentially very high. When registrars report their suspicions based on ‘gut feelings about how disingenuous the affection between the parties involved in the marriage is, this raises questions about whether the amendments made by the 2014 Immigration Act are not simply for show.

In fact, a more efficient approach to the problem was suggested in July 2014 by the Home Affairs Committee. It was recommended that registrars should have the power to cancel weddings should the Home Office enforcement team not act on a s.24 report, but that, more importantly this power should be supported by training offered to registrars by the Home Office on how to identify potential shams. Moreover an increased level of communication between the Home Office and registrars is encouraged, including practices such as letting registrars know what action is being taken as a result of their reports.

These suggestions might be just what the law needs in order to better tackle the growing problem of sham weddings and the threat they pose, but they have yet to be implemented into statute.   

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Tagged: Criminal Law, European Union, Family Law

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