Can a genuine couple be party to a ‘marriage of convenience’?

Marriage as opposed to cohabitation has certain distinct advantages for the purposes of immigration law generally and EU free movement law in particular. For example, the extensive retained rights of residence are only available to family members (ie. husbands or wives), but not unmarried partners of persons with the right of permanent residence under EU law.

For this reason, Article 35 of the EU Citizens’ Directive [1] gives the State a right to regulate and prevent “marriages of convenience”. But what’s the definition of a “marriage of convenience”? Is it a marriage of convenience if the parties decide to move from cohabitation to marriage in order to safeguard their immigration position/s and at the same time expressing their commitment to each other?

Related: Who bears the burden of proving a sham marriage?

Consider the following example. M is an EU Citizen with permanent right of residence in the UK. M and W, a non-EU national, have been living together 2 years and 9 months and have a two-year-old baby. M contracts a terminal illness and will die within the next 18 months. M and W want to marry in order to safeguard W’s position in the UK after M’s inevitable death. If they marry in these circumstances, will it be a marriage of convenience?

Anyone hoping that the recent decision of the Supreme Court in Sadovska v SSHD [2017] UKSC 54 would shed light on this question will be disappointed. The issue in Sadovska was whether the appellant or the Secretary of State bore the burden of proving before the Tribunal that a marriage was a “marriage of convenience.” In a judgment clearly intended to protect against over hasty determinations that a marriage is a marriage of convenience Lady Hale held that the burden was on the SSHD. As to the meaning of marriages of convenience, which was not directly in issue before her, she referred to an early pronouncement by the Commission to the effect that:

Recital 28 defines marriages of convenience for the purposes of the Directive as marriages contracted for the sole purpose of enjoying the right of free movement and residence under the Directive that someone would not have otherwise. A marriage cannot be considered as a marriage of convenience simply because it brings an immigration advantage, or indeed any other advantage. The quality of the relationship is immaterial to the application of Article 35.

Lady Hale then adopted a recent Commission handbook on the subject which explains that

the notion of ‘sole purpose’ should not be interpreted literally (as being the unique or exclusive purpose) but rather as meaning that the objective to obtain the right of entry and residence must be the predominant purpose of the abusive conduct.

But it repeats that:

On the other hand, a marriage cannot be considered as a marriage of convenience simply because it brings an immigration advantage, or indeed any other advantage (for example the right to a particular surname, location-related allowances, tax advantages or entitlement to social housing for married couples).

The reference to tax advantage would seem to invoke the notion that citizens are entitled (genuinely) to arrange their affairs so as to benefit from an advantageous legal regime.

Unfortunately, neither Lady Hale nor the Commission made it clear whether a genuine couple, married in all but name, contract a marriage of convenience when they move from cohabitation to marriage. Lady Hale’s judgment seems to require (though the contrary was not argued) that their marriage is one of convenience only.

Thus the couple who are canny enough to say in Home Office ‘marriage interview’ that though they were aware of the immigration consequences of marriage, they married principally because this was the point their emotional journey had reached will avoid enforcement action. That however seems to leave too much to the happenstance of what goes on in the interview.

In any case, such a plea seems unlikely to save the couple in the rather tragic example set out above. Their situation is one in which obtaining an immigration advantage and furthering their relationship are inextricably intertwined.

A solution to this problem came over the horizon (before being shot down in flames) in the case of R v SSHD ex parte Molina [2017] EWHC 1730. The issue in that case was whether an intended marriage could be prevented on the grounds that it was a marriage of convenience even though the Secretary of State admitted the parties were in a genuine relationship. The Appellant relied on the case of Chang [2001] UKIAT 0012 for the proposition that a genuine marriage could not be a marriage of convenience. Deputy Judge Grubb rejected this argument on the basis that in the case of Rosa v SSHD [2016] EWCA Civ 14, the Court of Appeal had said the focus in relation to determining whether a marriage was one of convenience should be on the intention of the parties. If the predominant purpose was to gain an immigration advantage, then the marriage was one of convenience.

In my view, the judgment in Rosa does not clearly support that view; the point was not fully argued and the paragraph in question (§ 41) is directed at what the test is to be applied at the time of the marriage or whether marriage must subsequently endure. (“At the time of the marriage,” said the Court of Appeal).

As a matter of principle it would seem right to protect those whose marriage was genuine but who knew and were keen to take advantage of Immigration law from trial by Home Office interview. After all, if they can marry for tax advantages, what in principle is the difference? It still seems open (just) to argue that point in the Tribunal. It also seems likely that even if such marriages are found to be “marriages of convenience”, there are likely to be arguments over whether or not enforcement action is justified and proportionate depending on the circumstances.

[1]: Directive 2004/38/EC of the European Parliament.