Sham marriage or genuine relationship?
By Oshin Shahiean, managing partner at OTS Solicitors
Sometimes, you look at a couple and think how did they get together? If you are part of the Home Office investigation team then that is all part of the daily enquiries into migrants’ relationships and marriages.
There is something that does not feel quite “right” when you are told that an official is looking into a couple’s relationship, but for Immigration officials it is not prurience but part of the job description.
Top London immigration solicitors often have to talk to clients about their marriage or planned wedding because of the perceived Immigration advantage of marriage.
Through marriage, some migrants can gain a right to live and work in the UK. Of course, to secure any “Immigration advantage”, the marriage has to take place with a British citizen or an EU citizen or someone with the right to remain or settled status.
According to some sections of the press, “marriages of convenience” or sham weddings are a common Immigration abuse as a backdoor means of gaining entry to the UK. For migrants who are planning to marry, the visa or investigative process can be very intimidating.
How can OTS Solicitors help?
If you need Immigration advice about the effect of your planned marriage or civil partnership on your Immigration status or are concerned about an investigation or other Immigration issue, our London immigration solicitors can advise you on the complex Immigration rules, regulations and investigation process.
Please get in touch with us on 0203 959 9123 to arrange an appointment to speak to one of our experienced London immigration solicitors.
What is the definition of a sham marriage?
Sham marriage is defined in Immigration legislation.
Top London immigration solicitors say that, put simply, a sham marriage is:
- One or both parties to the marriage is not a British citizen or an EEA national; and
- There is no genuine relationship between the parties to the marriage; and
- One or both parties to the marriage entered into it to avoid the effect of Immigration rules or so one or both could obtain a right conferred by Immigration rules by marriage.
What is the definition of a marriage of convenience?
You also hear talk of “marriage of convenience”. A marriage of convenience is defined in EU legislation.
The definition is a relationship contracted for enjoying the right of free movement and residence.
A marriage of convenience can occur when a husband or wife are in a genuine relationship.
As a marriage of convenience is defined in EU law, it applies to non-EU nationals marrying EU nationals.
The Home Office guidance says marriages of convenience are akin to sham marriages.
Consequences of entering into a sham marriage
Under EEA Regulations, EEA and non-EEA nationals can be removed from the UK if they are found to have entered into a sham marriage.
In addition, criminal prosecution under the 1971 Immigration Act could take place for obtaining leave by deception or assisting unlawful Immigration.
Investigating sham marriages
If a couple give a Register Office notice of their intention to marry (as required by law in order for the marriage to take place), the registrar must tell the Home Office if one or both of the fiancés are not exempt from notification.
People who are exempt from notification are:
- British citizens and EEA or Swiss nationals; and
- People who have Indefinite Leave to Remain or permanent residence; and
- People exempt from Immigration control or with a valid fiancé, civil partnership or marriage visitor visa.
Who will be investigated?
The Home Office does not have the resources or the grounds to investigate all weddings where one or both of the parties to the planned marriage are not exempt.
The Home Office should only investigate if there are “reasonable grounds” to believe it is a sham marriage.
The Home Office has produced guidance on the factors that it will consider when deciding whether if it suspects a sham marriage.
top London immigration solicitors advise the factors the Home Office considers include whether either fiancé:
• Is an Immigration overstayer or is in breach of the conditions of their Immigration leave; or
• Entered the UK illegally; or
• Has been convicted of a criminal offence or there is evidence of links to criminality; or
• Has previously obtained leave, or tried to do so, on the basis of deception or false or forged documents; or
• Has an outstanding Immigration application based on their relationship with another spouse or partner, or has previously sponsored, or been sponsored by another spouse or partner to come to or remain in the UK; or
• Has information in their Immigration history, which, based on Immigration intelligence, gives rise to a reasonable ground to suspect that the proposed marriage or civil partnership may be a sham.
What is the investigation process when a sham marriage is suspected?
The Home Office can carry out an investigation into a marriage either before or after the marriage.
If an investigation into a planned marriage takes place, the Home Office can extend the notice period from 28 days to 70 days. If a couple plan to marry quickly, this can affect their wedding date.
The Home Office can also investigate after the marriage has been celebrated and an Immigration application is submitted based on the marriage.
The sham marriage investigation paperwork and interview
As part of the investigation, the couple can be asked to produce paperwork evidencing their relationship. The sort of documents they may need to provide include:
- Evidence of living together, such as tenancy agreement, utility bills and bank statements;
- Evidence of genuineness of relationship, such as text or other social media messages or photographs.
- The Home Office can also interview a couple.
The best London immigration solicitors recommend that an Immigration solicitor represent a couple during any investigation and interview.
Is the relationship genuine and subsisting?
The Home Office will consider if a relationship is genuine if they investigate either prior to the wedding or after the marriage has taken place. A marriage must be genuine for an Immigration application to be successful.
“Genuine” is not defined in the Immigration Rules or Home Office guidance. However, the Home Office has listed factors it uses to assess whether a relationship is genuine or not.
The top London immigration solicitors advise that the factors are not exhaustive and when making a decision the Home Office caseworker has to look at all the circumstances.
According to the Home Office, some of the factors associated with a genuine relationship are:
- Evidence of cohabitation and a long-term relationship;
- Children;
- Shared finances;
- Circumstances of the marriage;
- Visits to family, for example the in-laws.
- According to the Home Office some of the factors associated with a non-genuine relationship are:
- Failure to attend interview;
- Lack of information about day to day living and practicalities;
- Inability to communicate or to provide accurate information about each other;
- No ongoing cohabitation;
- Previous sham marriage or Immigration history of unlawful residence in the UK or the refusal of an application for Indefinite Leave to Remain using a different category.
The notice period triggering an investigation into an overstayer
Giving notice of a planned marriage to a Registry Office will trigger a referral to the Home Office. This may be of great concern if a fiancé is an overstayer or is in the UK illegally.
There may be a concern that the Home Office will start removal proceedings against the fiancé.
The best London immigration solicitors recommend that immediately after notice has been given to the Registry Office, an application for leave to remain is made. If the application is not processed until after the end of the 70-day notice period, then the couple will be able to marry without the fiancé having been removed.
How can OTS Solicitors help?
If you are thinking of getting married or entering a civil partnership and are concerned about your Immigration status or an investigation into your marriage, our leading London immigration solicitors can help you with the complex Immigration rules and regulations.
OTS Solicitors are Legal 500 recommended Immigration solicitors who also specialise in all aspects of family, marriage and civil partnership law.
Our specialist approachable London immigration solicitors provide proactive advice. Please get in touch with us on 0203 959 9123 to arrange an appointment to speak to one of our experienced London immigration solicitors to see how we can help you.