CHAPTER TWO – WHAT IS A SHAM MARRIAGE AND A MARRIAGE OF CONVENIENCE? IS THERE A DIFFERENCE?
In this second chapter, we will consider the definitions of a sham marriage and a marriage of convenience.
The Home Office say that sham marriages pose a significant threat to UK immigration control. They have assessed that around 35,000 marriages and civil partnerships a year involve a foreign national for whom the marriage could be advantageous in immigration terms1. They further estimate that between 4,000-10,000 applications are made in a year under EU law on the basis of a sham marriage or civil partnership2.
The terms ‘sham marriage’ and ‘marriage of convenience’ are frequently used synonymously3. They are however defined in different terms.
2.1 Sham Marriage
A sham marriage is defined under the Immigration Acts as one in which there is no genuine relationship between the parties to the marriage or civil partnership, and either one, or both, of the parties enter into the marriage for the purpose of circumventing UK immigration controls4.
2.2 Marriage of Convenience
A marriage of convenience is defined as a marriage entered into for the purpose of circumventing immigration laws5.
One can see that unlike the former sham marriage term, a couple being in a genuine relationship does not feature in the marriage of convenience definition. This results in a situation where a couple in a long-term, subsisting, cohabiting relationship can be found to be in a marriage of convenience. The case of Molina, R (On the Application Of) v The Secretary of State for the Home Department  EWHC 1730 (Admin) dealt with this exact scenario. Mr Molina was a Bolivian national who entered the UK illegally in 2007, in April 2013 he met an Italian national and they entered a relationship, in September 2014 they started to live together and they planned to marry in May 2015. The Secretary of State accepted that theirs was a genuine relationship, she accordingly accepted that this was not a sham marriage but she considered that this instead met the different definition of a marriage of convenience. It was concluded that Mr Molina was rushing to get married as he knew that his immigration status would benefit from this union. The High Court agreed with these conclusions, noting the distinctions in the two terms6.
Fortunately, the High Court’s decision in Molina was appealed to the Court of Appeal and the matter was settled with the decision of Judge Grubb in the Administrative Court being set aside by consent. The accompanying statement of reasons to the consent order is available online7 and is worth considering in full. It explains that a genuine couple might decide to wed much sooner than they had originally thought they would owing to immigration reasons but that is not necessarily a marriage of convenience. Some extracts from the lengthy statement of reasons are set out here,
“57) The Court of Appeal may, therefore, consider that while (per Richard LJ in Rosa v SSHD  1 WLR 1206, above), the focus is on the intention of the parties, the objective circumstances of a relationship may be a consideration in deciding whether a marriage is one of convenience, because, where a relationship is one that could reasonably be expected to lead to marriage in due course, marrying earlier to secure an immigration advantage may not involve gaining the right or benefit in circumstances that are outside the objective of the measure in question…
63) However, the officer’s conclusion that’ this may not be a sham marriage’ and her conclusion that there was a genuine relationship of some sort tend to suggest a belief that there was a genuine relationship, albeit that the reason for the parties’ rush to marry was to secure an immigration advantage.
64) In such circumstances, the Secretary of State accepts, on these particular facts, that the fact that Mr Molina and the EEA national were, in the officer’s opinion, rushing to be married might nonetheless be more likely to fall on the side of legitimate advantage-taking, than abuse of rights.
65) The Secretary of State does not concede, in this appeal, that durable partners cannot, in law, be parties to a marriage of convenience, but he accepts that, on the facts, known to him through the Immigration Officer, the distinction that was drawn between a sham marriage and a marriage of convenience was not sustainable, and that, therefore, the decisions to detain and remove which were taken on the basis of that distinction, did not provide an adequate basis to do so.”
One wonders whether it was really intended that couples in genuine relationships be potentially prevented from marrying by this legislation. The Immigration and Asylum Act 1999 itself says that a where there is a genuine relationship between a couple there can be no sham marriage. Throughout Home Office Policy Guidance the terms sham marriage and marriage of convenience are used interchangeably, suggesting they should be approached in the same way.
The success of the appeal in Molina provides hope that the expansion of the definition of marriage of convenience will be challenged further. Currently, lawyers will have to continue to battle with the distinction between the terms and advise their clients that are in genuine relationships that they can still be caught out.
2.3 The ‘Sole Aim’ or ‘Predominant Purpose’ of the Marriage
Whilst there is a difference in the definitions, in both expressions ‘the purpose’ of the marriage is key. The way in which this purpose has been considered has however changed significantly over the years.
Marriages of course occur for a number of reasons; for example, tradition, love, pregnancy, religion, or indeed to enable a couple to continue and strengthen their family life together in the UK at that time. Would the intentions of a couple in the last example be sufficient to find that this was a marriage of convenience?
Historically, the answer to this question would have been no. Previously, and for quite some time, for a marriage of convenience to be made out the marriage had to be conducted with the ‘sole aim’ of circumventing the rules on entry and residence8. Whilst the couple in the last example are gaining an immigration advantage by marrying, it is quite evident that this is not their sole purpose. A significant reason for their marriage is that they simply wish to be together. These individuals would have been able to refer to R (On The Application of Baiai and Others)9 where the Court said that “the authorities are not free simply to disregard those marriages which they believe have been entered into purely in order to gain some perceived immigration advantage. No doubt such marriages do take place. There is also no doubt that they are difficult to detect, not least because of the difficulty of unpicking the variety of reasons why two people might choose to marry one another. There are many perfectly genuine marriages which may bring some immigration advantage to one or both of the parties depending on where for the time being they wish to make their home. That does not make them “sham” marriages.” In coming to this conclusion, the House of Lords referred specifically to the requirement for the ‘sole aim’ of the marriage to be for an immigration advantage10.
In July of 2017, the Supreme Court moved away from the ‘sole aim’ approach in a case called Sadovska v SSHD  UKSC 54,  1 W.L.R. 2926. Despite the court noting that the European Directive11 and a Communication from the Commission to the European Parliament12 referred specifically to ‘sole purpose’ they noted that a 2014 Handbook from the Commission13 suggested a more flexible approach. Relying on this Handbook, over the Directive, they extended the definition of a marriage of convenience to one where gaining an immigration benefit must be the ‘predominant purpose’14.
The case of Seferi & Anor, R (On the Application Of) v Secretary of State for the Home Department  EWHC 287 (Admin) demonstrates the expansion of the definition well. Here, the Secretary of State reached no view on the genuineness of the relationship between the couple. The fact the EU national party to the marriage had admitted to researching how her foreign partner could legalise his stay, albeit that she had not discussed this with him, combined with a reasonable inference that Mr Seferi would know that marriage to an EU national would assist his immigration status was deemed sufficient for the Secretary of State to conclude that the marriage was being entered ‘predominantly’ for the immigration advantage it would give to Mr Seferi15.
Practitioners may wonder how the decision in Seferi sits comfortably with Lady Hale’s words in Sadovska, where she said that an overstayer in the UK may be ‘delighted to find an EU national with whom [they] could form a relationship and who was willing to marry [them], that does not necessarily mean that their marriage was a “marriage of convenience”.’16
In the case of R v IAT, ex parte Arun Kumar  Imm AR  Sir John Donaldson MR commented that ‘Any attempt to achieve a delicate and detailed analysis of the motives for the marriage is more likely to obfuscate than enlighten. The motives will often, and perhaps usually, be complex and defy such analysis.’ The current authorities show how attempts to analyse purposes and intentions can indeed obscure and complicate the picture resulting in decisions which are difficult to understand. Nonetheless, motives are what must be analysed.
It is important that you and your clients consider and set out all of the underlying reasons that they are marrying. Whilst a couple may say they wish to remain in the UK together, what must be explored is whether it is remaining here or simply being together that is vital for them. The reasons for their decisions should be considered at length and explained with real care.
There may of course not be a predominant purpose for a marriage or civil partnership. Instead a number of equally important objectives may be met through marriage. As Lady Hale said in Sadovska, ‘incidental immigration and other benefits’ are insufficient for a marriage of convenience to be made out17.
1 Home Office (2013) Tackling Sham Marriage Impact Assessment HO0090, page 5.
2 Ibid. page 2.
3 Indeed the Home Office specifically and incorrectly say in their Marriage Investigation Guidance Version 4.0 31 December 2020 (pp10, 12) that for immigration purposes the terms are synonymous.
4 Sham marriage is defined in statute at Section 24(5)(6) and Section 24A(5)(5A) of the Immigration and Asylum Act 1999, as amended by Section 55(3) of the Immigration Act 2014, and Regulations 12(4)(5) of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020/1309
5 A marriage of convenience is defined in Recital 28 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004; Regulation 2 of The Immigration (European Economic Area) Regulations 2016, S.I. 2016/1052 (‘the EEA Regulations’) as saved by The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020, S.I., 2020/1209 and The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020, S.I., 2020/1309, Schedule 3; and Annex 1 of Appendix EU and Appendix EU Family Permit of the Immigration Rules. The EEA Regulations and Appendix EU also refer to durable partnerships of convenience giving these the same definition.
8 See European Council Resolution 97/C382/01 of 4 December 1997 on measures to be adopted on the combating of marriages of convenience, Article 1; Recital 28 of Directive 2004/38/EC; and R (On The Application of Baiai and Others) v Secretary of State For The Home Department  UKHL 53,  1 A.C. 287 .
9  UKHL 53,  1 A.C. 287 
11 Directive 2004/38/EC, Recital 28
12 A Communication from the Commission to the European Parliament and the Council on guidance for the better transposition and application of Directive 2004/38/EC, dated 2 July 2009
13 Handbook on addressing the issues of alleged marriages of convenience between EU citizens and non-EU nationals in the context of EU law on free movement of EU citizens, dated 26 September 2014
16 Para. 35.