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Published: Fri, 02 Feb 2018

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,

http://news.bbc.co.uk/1/hi/uk/392619.stm

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

BIBLIOGRAPHY:

  • 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.

ONLINE SOURCES:

  • 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.

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