Alina Tryfonidou, Associate Professor in EU Law, School of Law, University of Reading

In September 2014, the Commission introduced a Handbook designed to guide Member States in addressing marriages of convenience between EU citizens and non-EU nationals. The goal is to combat these marriages without unduly restricting the free movement rights of EU citizens. The Commission emphasizes that the guidelines, developed in collaboration with Member States, are not legally binding and don’t supersede existing EU law or its future interpretations.

Before delving into the Handbook’s contents, it’s important to understand the context of marriages of convenience and their connection to EU free movement law.

EU citizens have the right to move and reside freely within the EU. This right, enshrined in the FEU Treaty and Directive 2004/38, is intrinsically linked to family reunification rights. Since the 1960s, secondary legislation has granted automatic family reunification rights to migrant EU citizens, including those with third-country national family members. This allows family members to join their EU citizen relatives in the host Member State without undergoing separate immigration assessments.

However, this has raised concerns about potential abuse, particularly regarding marriages of convenience used to circumvent immigration rules. Article 35 of Directive 2004/38 acknowledges the right of Member States to address such abuse but provides limited guidance on implementation.

Initially, the EU offered minimal direction on tackling marriages of convenience. While a 2009 Communication clarified the concept of “marriages of convenience,” it lacked clear guidance for Member States. Recognizing the need for more comprehensive instructions, the Justice and Home Affairs Council in 2012 called for a handbook to address this issue. Subsequently, in 2013, the Commission committed to helping Member States combat marriages of convenience as part of its five-point plan on free movement within the EU.

This led to the creation of the current Handbook, which aims to equip national authorities with practical guidance for detecting and investigating potential cases of marriages of convenience.

The Handbook, spanning 47 pages, is structured in four sections: Introduction, Definitions, Applicable Legal Framework, and Operational Measures within National Remit.

Section 1 outlines the background and purpose of the Handbook, specifying its focus on situations involving EU citizens residing with their third-country national spouses in another Member State. This excludes marriages of convenience between two EU citizens, two third-country nationals, or situations confined within a single Member State where no cross-border movement has occurred. The Handbook stresses that any action against potential abuse must be case-specific, non-discriminatory, justified, proportionate, and compliant with EU law and fundamental rights, as detailed in Section 3.

Section 2 provides definitions of key terms used in the Handbook, focusing on distinguishing genuine marriages from marriages of convenience and differentiating abuse from fraud. It emphasizes that the intention behind the relationship, not its outward appearance, is crucial in determining a marriage of convenience. The section also provides examples of various types of genuine and convenient marriages and references relevant EU rules related to human trafficking.

Section 3 outlines the legal framework, stressing that incorrect decisions based on suspected abuse can significantly impact EU citizens and their families. This section aims to guide national authorities in considering all relevant factors and rules when addressing potential abuse, including those related to free movement, fundamental rights as defined in the FEU Treaty and the EU Charter of Fundamental Rights, and other international legal instruments like the ECHR, UDHR, ICCPR, and UNCRC. It emphasizes the need for procedural safeguards and clarifies the burden of proof, which rests on national authorities to demonstrate the existence of a marriage of convenience.

Section 4, drawing on best practices across Member States, provides a toolkit for tackling marriages of convenience. It explores the motivations behind these marriages and outlines potential triggers for investigation, emphasizing that any investigation should be open-ended. The Commission acknowledges the risk of misidentifying genuine couples as abusers and proposes an approach based on the “presumption of innocence” and the “double-lock safeguard.” The section lists potential indicators of abuse, categorized by stages in the “life cycle” of marriages of convenience. It concludes by examining lawful investigation techniques and tools, including simultaneous interviews, document verification, and community-based checks, while emphasizing the importance of cross-border cooperation and data sharing through agencies like Europol, Eurojust, and the European Commission. It stresses that these techniques must comply with procedural safeguards and respect fundamental rights, particularly the right to privacy.

The Handbook is a well-crafted document designed to help Member States effectively address marriages of convenience. It balances the need to prevent abuse with the importance of protecting the free movement rights of EU citizens and the fundamental human rights of all involved. The emphasis on safeguarding fundamental rights, a key aspect since the Treaty recognized the binding nature of the EU Charter of Fundamental Rights, is commendable.

While it’s too early to assess the Handbook’s impact, one criticism lies in its limited scope. Although different considerations apply to couples involving a (migrant) EU citizen and a third-country national compared to other pairings, the safeguards for fundamental human rights and procedural requirements remain crucial across all cases involving suspected marriages of convenience. The Handbook seems more focused on protecting fundamental rights and procedural safeguards, which stem from human rights, than on safeguarding the right to free movement.

A more comprehensive Handbook applicable to all situations within the scope of EU law, addressing the nuances of different couple compositions in separate sections, would be beneficial. This would provide a clearer and more unified framework for Member States to tackle marriages of convenience. Such an approach would align with the Council’s 1997 Resolution on combating marriages of convenience, which applied to couples involving both EU citizens and third-country nationals.

Barnard & Peers: chapter 13, chapter 16