Aleksandra Jolkina, PhD in Law, Queen Mary University of London
Over the last twenty years, UK authorities have become increasingly wary of marriages within the UK between mobile EU citizens and third-country nationals (TCNs) with uncertain or irregular residence status. In the current climate of Euroscepticism, such marriages are often criticized as “marriages of convenience,” intended to circumvent British immigration laws. This piece examines how UK courts interpret the concept of marriages of convenience, the potential implications for families of EU citizens residing in the UK, and the anticipated changes after Brexit.
Background
The UK government’s concern over potential abuse stems from the widening gap between the rights granted by the EU Citizenship Directive and the restrictive nature of British immigration law. Since the inception of free movement, EU citizens have had the right to reside in any EU Member State with their spouse, regardless of the spouse’s nationality. This right aims to prevent obstacles for EU citizens relocating to another Member State and to promote their integration into the host society.
However, the EU’s inclusive approach stands in stark contrast to developments in UK domestic family reunification law. To control the influx of TCN family migrants who couldn’t be selected like foreign workers, the UK significantly restricted the admission of family members of British nationals and settled individuals.
In 2012, the UK implemented a “minimum income requirement” for its citizens wanting to live with their TCN spouses in the country. Sponsoring a foreign spouse now requires substantial savings or a minimum annual income of £18,600 (with additional requirements for sponsoring children). This threshold is unattainable for a large portion of the UK’s working population. Additionally, couples must furnish extensive proof of a “genuine and subsisting” relationship, including joint rental agreements, mortgage statements, utility bills, bank records, photos, and correspondence.
Furthermore, the “no-switching rule,” introduced to address marriages of convenience involving UK citizens, prevents non-EU nationals on short-term visas from switching to the marriage category within the UK. They are required to leave and apply from their home country. The burden of proof in family reunification cases rests with the applicant. Unless a human rights claim is raised, negative decisions from the Home Office are not subject to appeal.
In contrast, family members of mobile EU citizens automatically gain residence rights in the UK without leaving the country or meeting additional criteria. As established in the Metock case at the Court of Justice of the European Union (CJEU), this principle applies even if the non-EU spouse previously resided in the Member State illegally.
Since the UK couldn’t apply restrictive domestic measures to, for example, Indian or Albanian spouses of Polish or Spanish nationals, the UK government began labeling the Citizenship Directive a “loophole.” This loophole, they argue, allows undesirable non-EU nationals to gain legal status through marriages of convenience. This narrative is often fueled by sensationalist media reports alleging “fake marriages,” where vulnerable Eastern European women are exploited by marriage “fixers” and TCN men.
UK Case Law Analysis
While the Citizenship Directive allows Member States to deviate from free movement rights in cases of abuse, such as marriages of convenience, the definition of such abuse is narrow, and the provision must be interpreted strictly. This analysis summarizes the key findings of my research on how UK courts address this issue, specifically whether and to what extent the concept of marriages of convenience aligns with EU law.
To answer this question, I reviewed 110 recent Upper Tribunal (UT) Immigration and Asylum Chamber decisions between July 2016 and July 2019. These cases involved TCN spouses of mobile EU citizens who were denied entry or residence in the UK based on suspicions of a marriage of convenience. The chosen rulings, identified using keywords like “marriage of convenience” or “sham marriage” alongside “EEA,” provide insight into the UT’s approach. Additionally, I studied significant cases on the matter from other courts, including the former Asylum and Immigration Tribunal, the Court of Appeal, the High Court of England and Wales, and the Supreme Court.
Though my research focuses on First-tier Tribunal (FtT) appeals, the number of UT judgments analyzed allows for a comprehensive understanding of how the UT tackles this issue and identifies problematic practices in lower courts. The following points outline the key concerns in this context.
Definition of Marriages of Convenience
One significant issue is the definition of marriages of convenience. Both the Citizenship Directive and the CJEU impose the “sole purpose” test, meaning obtaining residency must be the only objective of the marriage, not just one of many.
In essence, the Directive defines “marriages of convenience” as artificial arrangements with no purpose other than immigration. This is logical since states often prioritize marriage for family reunification, and many couples marry to establish a family life in a specific country, often influenced by factors including economic considerations. An immigration advantage as a consequence of marriage, even as the primary reason, doesn’t automatically negate the intention of a shared family life.
The case-law analysis indicates that few judges clearly define marriages of convenience. This lack of clarity undermines legal certainty and frequently leads to unfavorable outcomes. Even when judges attempt to define it, they often struggle to provide a definition that aligns with EU free movement law.
In many cases, FtT judges seemed unaware of EU law and incorrectly relied on domestic immigration law, demanding the marriage to be “genuine and subsisting.” Even when focusing on the situation at the time of marriage, they often replaced the “sole purpose” definition with a “primary purpose” approach, contradicting EU law. This has led to contradictory findings in two High Court cases (Molina and Seferi & Anor), where a marriage of convenience was attributed to couples in genuine relationships.
Burden of Proof
Another key issue is determining the burden of proof. Under EU free movement law, routine marriage checks are prohibited, and the burden of proving a marriage of convenience lies with national authorities.
UK courts have long maintained that the burden of proof in EU cases rests with the Home Office. Numerous rulings reinforce this, from the oft-cited UT decision in Papajorgji to the more recent Supreme Court judgment in Sadovska. However, FtTs often incorrectly cite domestic immigration rules and demand that the applicant prove their marriage is “genuine and subsisting,” placing the burden on the non-EU spouse. The UT typically overturns such decisions.
However, even when judges acknowledge relevant case law, the practical application of the test is flawed. In several cases, FtTs decided that “well-founded” suspicions shift the burden of proof onto the non-EU national. While the UT overturned some of these decisions, there are concerning instances where they agreed with the FtT.
For instance, in Ahmed, the FtT judge deemed the marriage a sham partly because the appellant didn’t know his wife’s family well enough, deeming it unusual for a husband. The UT criticized this subjective judgment, especially since the wife explained that they avoided discussing her father and brother due to past “abuse issues.” The case was returned to the FtT for reevaluation.
In Habib, both tribunals considered the couple’s joint bank account and shared bills as fabricated evidence to mislead the Home Office. Similarly, in Jamil, the UT judge deemed a three-year marriage “brief” and, along with other questionable evidence, concluded it was a sham. In various cases, FtTs rejected claims based on biased interpretations of photographic evidence, criticizing the quantity or calling them “staged.” This forces couples to take excessive photos, even if unnatural, risking being perceived as insincere due to too much or too little affection.
Worryingly, some judges place undue emphasis on cultural differences between spouses, a discriminatory approach unrelated to the marriage’s purpose. As the UT rightly argued in Nasreen, the FtT judge’s skepticism about a Bangladeshi-Italian couple meeting and finding common ground at a takeaway restaurant was unjustified.
Judges also overstep by evaluating the couples’ language skills and communication abilities. In one case, the FtT judge dismissed the appeal because the appellant’s answers were “vague” and the spouse’s English “inadequate,” concluding they couldn’t communicate, a finding the UT supported. In another case involving a Pakistani-Portuguese couple, the FtT deemed the marriage a sham due to inconsistent answers and the wife’s limited English, disregarding the fact that they had a child. Despite the wife explaining that her husband spoke slowly to her, the judge decided their communication was insufficient and incorrectly relied on the “genuine and subsisting” relationship criteria. The UT pointed out that the judge’s method of obtaining evidence from the wife without an interpreter was unclear and considered his analysis “tainted by legal error and perversity.”
Focus on Cohabitation and Current Relationship Status
The burden of proof issue is closely tied to another flawed judicial approach. During marriage checks, Member States must adhere to a key principle established by the CJEU. As per the judgments in Diatta and Ogieriakhi, unless a marriage is officially dissolved, the TCN spouse retains rights under the Directive, even if the couple lives apart or is no longer romantically involved. This approach is reasonable, as it’s not the state’s place to dictate a couple’s living arrangements or judge their relationship quality.
However, UK courts rarely acknowledge these CJEU rulings. Instead, tribunals fixate on the current state of the relationship, emphasizing cohabitation as proof of authenticity.
In several instances, the UT supported the Home Office’s decision to categorize a marriage as one of convenience. For example, in Gjana, both tribunals concluded this because the EU spouse went on holiday to her home country. The FtT judge deemed it significant that she opted for a month-long visit instead of a shorter trip to spend time with her husband, especially since it occurred shortly after they moved in together. In the judge’s view, this implied her family visit was more important, undermining the claim of a genuine relationship. The UT supported this subjective and legally flawed interpretation, violating both the burden of proof and the CJEU rulings in Diatta and Ogieriakhi.
Another problematic category includes cases where the relationship deteriorated or spouses maintain separate residences due to work. In De Vera, the Home Office refused the TCN spouse a residence card because they didn’t find the couple at their stated address. During the hearing, the FtT judge found it suspicious that the appellant lived “on and off” with her husband and worked in Essex, away from their Hounslow home. Although she returned to Hounslow four days a week, the judge considered this “inconsistent” with a young couple in a genuine marriage, suggesting she should have found work closer to home. The UT rightfully dismissed this as speculative, especially given the appellant’s explanation about job and housing hunting difficulties. Ultimately, the marriage wasn’t deemed a sham. However, while the UT correctly refuted the FtT’s flawed conclusions based on presented evidence, it failed to reference the CJEU rulings that would have strengthened their argument.
Furthermore, residence permits were revoked in several cases solely because the Home Office discovered the couples had separated but not yet finalized their divorce. In Iqbal, both the FtT and UT upheld the Home Office’s decision. However, in some cases, the UT correctly affirmed that under EU law, a family member’s status changes only after divorce, even if the couple is estranged.
Cases Involving Children
Cases involving pregnancy and childbirth are particularly controversial, as these factors make it even more difficult to justify labeling a marriage as one of convenience. Out of the 110 analyzed UT judgments, 12 (over 10%) involved such marriages where the FtT didn’t consider these factors as proof of genuineness, with the UT concurring in four cases.
In some cases with children, the judges misapplied the burden of proof and the definition of marriages of convenience. In Rehman, the FtT incorrectly stated that the claimant had to address reasonable suspicions and used the “predominant purpose” test. The judge upheld the Home Office’s sham marriage conclusion, believing childbirth didn’t negate the non-EU spouse’s “continued dishonesty” regarding his studies. The UT found this reasoning faulty. In Virk, the Home Office concluded the marriage was a sham despite the pregnancy of the EU spouse, who underwent intimidating and intrusive questioning. The FtT dismissed the appeal. The UT found that the FtT judge misapplied the burden of proof by disregarding the couple’s concerns about the interviewer’s conduct and their explanations for discrepancies. The decision was overturned.
In Gjura, the FtT suggested the non-EU spouse fathered a child solely for immigration purposes. This is alarming, given the judge acknowledged both parents were involved in raising the child. However, the judge prioritized other factors like “scant evidence” of cohabitation, perceived communication difficulties at the start of their relationship, and providing different addresses during the child’s birth registration. Shockingly, the UT upheld the FtT’s findings, believing the “main” purpose of marriage was immigration advantage.
Similarly, in Khan, the FtT acknowledged the non-EU national as a “caring and loving parent” but still concluded the marriage was a sham due to his “dreadful” immigration history and inconsistencies during interviews. The judge even noted that the appellant “sought to strengthen his position in the UK by conceiving a child” and doubted his intentions were “honorable or genuine.” The UT rightly determined that the FtT’s assessment was unbalanced, focusing on negatives and neglecting positive factors. The decision was set aside. Additionally, several judges questioned the paternity of children conceived during the marriage, contradicting the presumption in English family law.
Post-Brexit Implications
Considering the fundamental EU rights at stake, national authorities should exercise extreme caution to minimize erroneous decisions and avoid intruding on EU citizens’ lives. However, the British government and courts don’t seem to share this view. The validation of hostile Home Office practices by numerous judges is deeply concerning. Unfavorable decisions, often made in breach of EU law, have caused hardship for couples involving EU citizens, potentially hindering their free movement rights. While this can be partly attributed to inadequate training of the UK judiciary on relevant EU laws, it raises concerns about judges relying on biased assumptions to disrupt EU citizens’ families.
Post-Brexit developments offer little hope. Essentially, the UK government has achieved its goal of stripping EU citizens of the generous family reunification rights guaranteed under EU law. The end of the transition period on December 31, 2020, effectively created two tiers of EU citizens with separate rights.
EU nationals arriving in the UK after this date are subject to British immigration law. In contrast, those residing in the UK before December 31, 2020, retain their residence rights under the Citizenship Directive. These rights extend to their non-EU spouses, provided the spouse resided in the UK under Treaty provisions by the cut-off date and continues to do so. Foreign spouses living outside the UK by the deadline can join their EU spouse if their marriage was registered before December 31, 2020, and remains valid. These guarantees are outlined in the EU-UK Withdrawal Agreement (as explained here) and incorporated into British law through the Withdrawal Agreement Act (discussed here). Beneficiaries of this Act must apply under the EU Settlement Scheme to confirm their status.
Consequently, British courts will continue handling appeals from TCN spouses of EU citizens covered by the Act in the coming years. These cases will likely involve applications for pre-settled or settled status or retaining residence rights after divorce.
Families covered by the Act will continue to benefit from EU law protections against states targeting perceived marriages of convenience. However, the implementation of these rules remains uncertain. My case-law analysis shows that UK courts struggled to differentiate between mobile EU citizens and British nationals even before Brexit. The added distinction between EU citizens under the Act and those considered full-fledged foreigners will likely cause further confusion, resulting in unfair decisions and disruption of families.
Barnard & Peers: chapter 26
Art credit: Pierre-Marie Bayle, The Wedding Procession