Free Law Essays - Immigration Law
Discuss the treatment of "marriages of convenience" in immigration law
Forced and arranged marriages in Asian tradition have created a furore in United Kingdom over the years. Now marriages of convenience are creating an upheaval that cannot be stopped. These two kinds of marriages, where plenty of money exchange hands mainly are entered into for circumventing immigration laws. Marriages have started taking place for such ludicrous reasons like getting a health plan for the partner. Breaking of the marriage too is equally quick. Usually as soon as the real intention is fulfilled, marriages are annulled and according to authorities, the bride and groom do not live together in most of these cases. We even come across marriages by proxy. Both the parties have to sign a contract and this is accepted in countries like El Salvador and Israel. The problem arises when the spouse applies for a UK Visa. UK being keen on cutting down as many illegal entries as possible would definitely discourage such marriages.
USA and other European countries too are facing a similar problem. In addition to these marriages, there are lesbian and gay partners. Once gay and lesbian marriages are accepted, ignoring them becomes a matter of denial of human rights and these partners could not be refused immigration. At least a few of these marriages are made only for the simple reason that the other partner should gain an entry to a more developed country. It is difficult to prove the sexual orientation of the partners, or if they are real partners at all.
It is believed that at least 10,000 marriages per year in London are marriages of convenience. A marriage of convenience could be a passport to reach another country, to escape from the cultural pressures, family squabbles, There are films like The Wedding Banquet and Green Card, and people are well aware of this situation. Mail order brides are available in all countries now and their parents do not have much problem about the situation either. UK and other Western countries have to think of many changes in the Immigration laws to deal with this situation. It is not very easy to separate legal from the illegal ones. Immigration and naturalization of aliens who are married to UK citizens had been going on for a long time, before this desperate situation arose.
There are also cases of feigning legitimate relationships when no such thing exists. They keep up the pretence as long as their immigration situation is cleared and go their own way afterwards. There are many examples of 'one-sided' marriages. In USA, Immigration of Marriage Fraud Amendment Acts, 1986 has effectively dealt with this matter to a large extent.
UK Home office has brought many rules to follow while assessing such applications. The careful assessment of marriage photographs and decide if they are genuine is one way of doing it. Whether the consummation of the marriage has taken place or not? Are there any children? Is the wife pregnant? Whether it is the first marriage or a subsequent marriage, especially for the sponsor? Nowadays almost all the Asian, especially Muslim marriages are looked at with suspicion that could be justified under the circumstances.
People could be deported from UK on the ground that their presence is 'not conducive to the public good' and marriage of convenience could be taken as one of the grounds. Such a deported person can request for the order to be revoked, through Home office, or British High Commission in his or her own country. The usual practice is that the order is not revoked at least for three years. Under certain circumstances, people who have entered without proper permission, or those who have come under the blanket suspicion of having made the marriage of convenience, could be treated as illegal entrants. Such people might have entered either by concealing many particulars, or by misleading the Immigration officers and by disclosing only partial information. Some people leave voluntarily and there is a provision of paying their fares to return to make it as less painful as possible. It is just a pleasant gesture and this includes people who are caught in this muddle for no fault of theirs.
The traditional registered marriages could be easily detected. Genuine marriages cannot be ignored as part of the Human Rights. Registered marriages make better impact on authorities. Authorities are looking for proof that the marriage was performed with the complete approval and co-operation of both the parties and entered into voluntarily, without any ulterior motive or pressure. Also it should withstand the verification that it was conducted with open consent of both the parties. Nowhere it should give the impression that the marriage was solely for the purpose of obtaining an entry into United Kingdom and if any of these fail, definitely the request would not be entertained.
There are many newly introduced rules now to discourage this evil. Both the partners should have attained majority. One of the spouses should hold a legal permission to stay in United Kingdom. A jobless or houseless spouse would not be able to offer much for the future life of the other person. Spouse's income and capability of financially looking after the other partner are crucial for an application and none of these should look temporary, ungenuine and dishonest. The education and employment history of the spouse residing in UK would be assessed. The capability of the spouse to support the alien partner would be weighed. Sometimes even after all the requirements are met, Immigration officer might get a doubt, just at the unbelievable perfection of the whole thing and might refuse the permission. With their vast experiences of dealing with hopeful UK citizens, they would have developed an acute sensitivity and sometimes, without any reason, and they feel sure that something is wrong somewhere and under those circumstances, they prefer to opt for more time, to ponder over things. Usually such cases end up in refusing the permission. Sometimes, very strong humanitarian considerations tip the scale in favour of the alien. Even if there is a child, if neither parent is a British citizen or legally settled in UK, the child cannot get the British citizenship.
Marriage of convenience is becoming a bigger problem among Asians and Third world countries. People in their desire to come to developed Western countries, make the mistake of getting into any kind of marriage alliance and get into trouble very often. It is not as easy as they think it is. Every Western country is discouraging this trend before it attains an enormous threatening form. This does not mean that the trend has fully stopped. It goes on in the face of discouraging laws and tightened immigration rules.
Foreign spouses, especially after the onslaught of terrorism, have been regarded with suspicion in all western countries for obvious reasons. Immigration authorities are also nervous that terrorists might be using the marriage of convenience as one of their tools to get access into the Western countries. There are enough reasons to be sure that many brides are willing to be part of the ongoing Jihad by helping the terrorists to gain entry. With that in mind, UK law had taken many measures to discourage the new and dangerous trend. Immigration authorities, while considering the foreign spouse applications are expected to mainly consider if the couple had shared residence earlier or not, and if so, for how long; whether they speak the same language, whether they come from the same country; is there any other common language other than English; the age difference between the partners; their personal background; is it an impossible union or a workable one? How much personal knowledge of each other they had before the marriage? How many times have they married earlier and are any children involved in the situation?
They also assess the overall family situation of both the partners, like the length and nature of partners' stays in the respective countries, both the partners' family ties with United Kingdom and mainly the alien person's country of birth. To fulfill the condition of maintenance, the UK partner is supposed to show his income and expenditure statement, an adequate place of dwelling, etc. Statements of income, self-employment income, public and private pensions benefit, sickness and even maternity benefit in some cases will be asked to be submitted.
Marriages are being scrutinized by all Immigration authorities in great detail for considering the family reunification request. The examination of the role of marriage registrars in immigration co0ntrol enforcement is important for several reasons. First it is important in itself, not least as registrars have now imposed on them a statutory duty to report so called 'sham' marriages, says Cohen, (2003, p.128). Close relatives like cousins getting married to one another is viewed suspiciously, as forced or authoritatively arranged marriage could be detected. Details of even distant cousins, grandparents, siblings, uncles and aunts, relatives in various countries etc have been scrutinized. If partners could prove beyond doubt that the marriage has taken place according to their own desire, without any pressure from any one, usually the request for family reunification is granted. The primacy of the right to family life has not been apparent historically in UK immigration law governing marriage-related applications.Marriage and child-rearing practices, concepts of the family and family duties are all raised by family settlement applications, says Clayton, (2004, p.206).
UK does not recognize proxy marriages. Nor does it recognize telephone marriages. In some countries like Israel, after signing certain forms, telephone marriage between the sponsor in UK and the other partner in Israel take place and are accepted under certain conditions. But they are unacceptable and regarded as marriages of convenience in UK. Commonwealth citizens used to receive visa easily if the other partner is in UK. This provision too has stopped recently.
Today a lot of people are using this kind of marriage to prevent from being deported from Britain. These bogus marriages have become a problem not just for the Home Department authorities, but also for the Family Courts. A marriage abuse team is given the authority of finding out facts behind such marriages, especially to find out if any money transactions have taken place between the partner and his sponsor. They make late calls to suspected houses to find out if the couple is living together. They ask questions separately to find out any discrepancy thereof. Other than Immigration authorities, very few people knew about it earlier; but today, it has become a popular mode of finding an entry into UK. If marriages are proved false, partners of such marriages could be immediately deported. There are improbable reports that men disguise themselves as women and get married to gain the citizenship. Authorities also have come across many stories where money changes hand for marrying an individual who is in need of a citizenship. There are also possibilities of professional brides, who get married under different names for money. Tightening up the laws has drawn many criticisms too. The fact was that under this provision an increasing number of men were refused even when their marriage was known to the Home Office to be genuine. This was never intended by Parliament or even necessarily by the Home Secretary, says Juss, S (1993, p. 91).
After suspecting this nexus, Government has given more power to the marriage registrars. Home office considers this an awful problem that cannot be fully stopped. Sometimes, even though they are aware of the problems, they are unable to take any action depending only on suspicion. Government is trying hard to stop this deception. At the end of the immigration process, a traveler may eventually be granted leave to remain indefinitely and in due course apply to the Home Office for naturalization as a British Citizen. Alternatively, he or she may be removed as an irregular migrant or face deportation on the grounds of conducive to the public good, (Blake and Hussain, 2003, 1.12, p. 22).
Cases: On 10.10.2000, the case of Pin-Wah Jeff Chang vs Home Department of UK came up in front of Immigration Appeal Tribunal. The Appellant, a citizen of Malaysia, questioned the refusal of right to remain in the United Kingdom as the spouse of an EEA national and denying him the right to appeal. There was a question if it was a valid marriage or a marriage of convenience. There was also a doubt if the relationship was a lawful one or not. They had to consider if the Appellant had been denied any of the Community Rights. It was pointed out that it was a marriage of convenience to ignore the entry rules of UK, and the complaint was dismissed.
In case of R (Kimani) v Lambeth LBC (2004), Kimani, Kenyan national who arrived at UK for asylum with her son, married an Irish national, but permission was not given for her to stay in UK was rejected for contracting a marriage of convenience.
Under Primary Purpose-Rule (in effect from 1980 to 1997) British citizens, married to non-EU citizens had to prove that marriage was not for avoiding deportation. Onus is on the parties to clarify the genuineness of it and this deters many. Labor Government modified these laws.
The change in rules had an immediate effect. In 1996, there were 1,960 applications for entry from Pakistan to Britain from would be husbands. In 1998, after the law was changed there were 5,080,
70% of Bangladeshi and Pakistani marriages in UK are arranged. Entry Clearance rules are tightened up to the maximum now. The minimum age of the bride to be allowed to UK was raised from 16 to 18 years. At this age, they cannot act as sponsors either and after entry a period of 12 month is compulsory and now it has been extended up to two years. British National Criminal Intelligence Service, An-Nisa Society, Anti-Slavery International, Anti-Trafficing Programme, Apna Ghar, Asylum Aid, Belgrave Baheno, Enfield Saheli, Institute of Race Relations are some Government and Non Government organizations who are fighting these evils.
Immigration has been a hot topic during the election campaign and in the last few years a number of people have been convicted in connection with bogus wedding scams linked to illegal immigration. http://newswww.bbc.net.uk/2/hi/uk_news/4480729.stm
- Blake and Hussain, (2003), Immigration, Asylum & Human Rights, Oxford University Press.
- Cohen, Steve, (2003), No One is Illegal, Trentham Books, Stoke on Trent.
- Clayton, Gina, (2004), Textbook on Immigration and Asylum Law, Oxford University Press.
- Cotran et al, (2001), Butterworths Handbook on Immigration Law, Butterworths, London.
- Evans, J.M. (1976) Immigration Law, Sweet & Maxwell, London.
- Encouraging Citizenship, Report of the Commission on Citizenship, (2001), London, HMSO.
- Guild, Elspeth, (2001), Immigration Law in the European Community, Kluwer Law International, London.
- Juss, Satvinder, (1993), Immigration, Nationality and Citizenship, Mansell Publishing Ltd., London.
- http://www.yourrights.org.uk/your-rights/chapters/rights-of-immigrants/persons-subject-to-domestic-immigration-controls/overstayers.shtml accessed on 9.5.2005.
- http://news.bbc.co.uk/1/hi/uk/392619.stm accessed on 9.5.2005.
- http://www.stlucia.gov.lc/pmpressec/TheWeekThatWas/corking_the_islands_immigration_loopholes.htm accessed on 10.5.2005.
- http://www.britishhighcommission.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1078996368828 accessed on 10.5.2005.
- http://newswww.bbc.net.uk/2/hi/uk_news/4480729.stm accessed on 10.5.2005.