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Sham Marriages

Info: 5327 words (21 pages) Essay
Published: 6th Aug 2019

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Jurisdiction / Tag(s): UK Law


The Problem:

It has already been reported several times in separate reports that the “Sham Marriages” are on a rise in UK, which is a direct consequence of the strict immigration laws in the country. According to BBC in 2009 the “Sham Marriages” increased by more than a half and this was a direct consequence of the strict immigration laws. It was also reported that the brides were mostly from Eastern European countries. The major problem here is that the rise reported here is only the registered cases in 2009 and it does not included those bogus marriages which went successfully unreported. (18)

This problem came to the limelight in 2005, which resulted in the strict immigration laws in UK as well, when it was reported that a terror suspect in US obtained legal status through a bogus marriage. (18) It was further reported that at least 17 suspects of the terrorism captured in US obtained permanent residency or citizenship through sham marriages and they were linked with providing important documents and papers to other terrorists around the globe. (20) This caused a major outburst in the nations directly involved in the “War on Terror” and resulted in the strict regulations, which convicted many immigrants, and were quite often termed as laws violating the fundamental rights of the immigrants.

One thing is quite clear, that the globalization has its pros and its cons as well. The major problem with globalization is that the wars have gone global and they are no more restricted within the boundaries of certain countries. The menace of terrorism has turned the world upside down and the War has been redefined. Right now, the War on Terror is kind of a World War that is being fought all over the world and it encapsulates the boundaries of the entire Western Modernized World and other countries. The only problem in this war is that the enemies are unknown and unseen, most of the times, and they can strike anything, from the public and infrastructures to the armed forces. The tactics used by these terrorists are also kind of unique and unstoppable most of the times. So, anything that can be associated with the acts of terrorism needs to be controlled and controlling sham marriages and pointing out the illegal immigrants has become necessary in this case.

In the UK and other European Countries, illegal immigrants are quite often resorting to “Sham Marriages”, to evade the strict immigration laws and to settle in Europe which would not have been possible without such scams. This has caused a lot of problems as the people who are engaging themselves in these marriages can be social deviants and may prove to be a threat to social control. Due to these threats these marriages have received attention of the Parliament as well as the Courts. There is a general perception that by controlling these sham marriages, which give a legal authority to the otherwise illegal immigrants, would cause a significant reduction in street crimes and would create more jobs for locals, as the foreigners are taking the same jobs at very meager wages. Most of the time the failed asylum seekers and the students, who have over-stayed after the expiration of their study visas, are engaging themselves in these marriages. Another major issue related to the sham marriages is the mafia and the gangs operating in different European countries, which do business with the people who indulge themselves in these marriage scams for citizenship. Hence, the problem with the sham marriages is associated directly with the social and societal problems in UK.

Literary Definition Of Sham Marriage:

Marriage” means only a legal union between one man and one woman as husband and wife and the word “spouse” refers only to a person of the opposite sex who is a husband or wife. A person does not qualify as a spouse, husband, or wife for immigration purposes if the marital relationship was created by a marriage ceremony where the parties were not physically present in the presence of each other, such as a proxy marriage, unless the marriage has thereafter been consummated. But, Marriage looses its meaning in case of “Sham Marriages”. A sham marriage is a union (marriage) motivated not so much by love but instead by a desire for political advantage or personal convenience.(14) Therefore, it is quite obvious that marriage which is considered as a strong social institution looses its meaning and its originality in this case, which also creates a disturbance in the society. Although I have discussed the “Sham Marriage” particularly as a scam used by illegal immigrants to obtain citizenships, but according to its definition any union which is conducted specifically for the purpose of achieving political and personal advantages.

We can get a lot of examples of these scam unions in the Middle Ages; for example, the marriage was conducted between Henry II and Eleanor of Aquitaine in the 12th century to gain political advantages for France. Similarly, for personal convenience a homosexual person can marry a woman to conceal his true sexual orientation. But, in this report I would be discussing the sham marriage only in the particular case of obtaining legal status by illegal immigrants. In this case another important concept is that these marriages are arranged as business transactions; therefore, both man and woman, at the time of marriage, are fully aware of the fact that the marriage is being conducted solely for that particular purpose and they do not enjoy the rights that they obtain as husband and wife in the marriage. Hence, it is sometimes disregarded as a marital or social contract by certain experts (15).

The Hypothesis:

The above discussion was intended to clarify that the “Sham Marriages” is a social problem and it results in many other problems, in which Terrorism is the major one and others include the destruction of social institution of marriage and loss of jobs for the local population. If a closer look is taken on the problems associated with it, it would not be hard to see that in the current times of global financial crisis, creating jobs for the locals is on the top of list of most of the governments in the world and UK is not an exception. Therefore, I believe that the “Sham Marriages” by illegal immigrants to obtain legal status is a major cause of concern in UK. So, in order to control this problem there is a dire need to hunt down the mafia gangs involved in this illegal business and put an end to this social menace.

Benefits Of The Research:

My aim would be to discuss the problem of sham marriages in context with the illegal immigration and the socio-economic problems that are brought along with it and the major problem concerning this research would be the problem of terrorism. The importance of a society and the maintenance of its real fabric is very significant to any nation. I would be discussing the problems associated with the Bogus Marriages and that how it destroys that very social fabric. The major purpose of my research would be to highlight the issue of sham marriages and I would be collecting data related to different cases and problems that resulted because of these bogus unions. I would also be discussing major social issues concerning the illegal immigration and would try to establish its link with the scam of illegal marriages. Other literature regarding the issue of illegal immigration in Europe and UK, in particular, would be thoroughly crammed. Then, I would also try to link it with terrorism by reviewing some of the cases that were reported all over the world. A very important part of my research would be the review of the immigration laws in UK and the way they deal with the problem of Sham Marriages. This would be a critical analysis which would be followed by some constructive suggestions to improve the effectiveness of these laws. Some of the focus of my study would be given to the laws that deal with the underworld that adopt the business of bogus marriages and the ways to curb them effectively. The reviews of some of the cases would be given as well and those would be critically evaluated. In general the issue of Sham Marriages would be discussed as a social threat and some legislative measures would be suggested to do away with of this nuisance.

Literature Review

In order to develop a better understanding of the problem it is necessary that some of the research articles and literature related to the bogus and sham marriages is analyzed. The “Sham Marriages” has already been defined in the first chapter and it has to be taken as a marriage between the man and the woman, not as a social or religious contract, but to gain certain personal or political advantages. The motives are quite obvious and the examples have already been given. In this particular research I would be focusing on only one of the motives and that would be the use of “Sham Marriage” as a tool by illegal immigrants, to obtain legal rights or citizenship in the country. This has actually become a business which is conducted by underground mafia gangs as business transaction.

General History:

A new immigration act was promulgated by the Blair’s government in September 2004 and was called “The Asylum and Immigration Act 2004”. Apart from other provisions it had seven provisions related to the prevention of Sham Marriages. According to http://www.ein.org.uk/resources/full.shtml?x=183397:

“Seven new clauses, dealing with marriage between a person settled in the UK and “a party to which is subject to immigration control”, were added at a late stage. The latter will be required to provide specified evidence of: entry clearance expressly to get married; the written permission of the Secretary of State to the same effect; or falling within a class specified in new regulations.

There are a number of problems with this new law (aside from the new labor practice of exaggerating problems to justify solutions). One, it is potentially discriminatory since marriage in the Church of England is not included. Two, the refusal, if not of entry clearance, then of written permission, or conceivably the Secretary of State’s regulations, could lead to a violation of article 12 (the right to marry) of the human rights convention. Is there a presumption that a person subject to immigration control enters into a sham marriage (as opposed to the allegation that sham marriages may be made by persons trying to become settled in the UK)? The primary purpose rule, abolished by new labor in 1997, has returned in the form of a legislative provision.”

It is quite obvious from the report that the laws implemented by the Labor government were considered a violation of human rights to a certain extent. The major problem was that there was an assumption in the laws that every person who is involved in immigration problems will enter into Sham Marriage, rather than declaring that there is a chance of it. When the law was implemented it created a lot of problems, especially for those couples who were actually trying to get married. This problem arose, most definitely, because of the false presumption in the law, as it was impossible to differentiate between a person marrying out of the concern of his immigration problems and another person marrying because of his love for some woman. Similarly, people getting permissions and registry of their marriages were reportedly involved at a number of occasions in troubles with the concerned departments.

Current Situation:

The laws were declared unlawful by the court and were repealed in May 2007. It was reported on the next day in the Telegraph: (19)

“Tough rules to stop illegal immigrants using sham marriages to get in to the country were declared unlawful by the Appeal Court yesterday. Judges said regulations brought in two years ago to block thousands of alleged ”marriages of convenience” breached human rights laws. Hundreds of couples who say they have been prevented from marrying may now try to claim compensation.

Under the regime, introduced by David Blunkett when he was home secretary, non-European Union citizens effectively needed Government permission to marry. They had to attend designated register offices and pay £135 for a certificate of approval.

The Appeal Court – upholding an earlier High Court ruling – said this was a “disproportionate interference” in the human right to marry. Lord Justice Buxton said the scheme could only be lawful if it prevented sham marriages intended to improve the immigration status of one of the parties.

“To be proportionate, a scheme must either properly investigate individual cases or at least show that it has come close to isolating cases that very likely fall into the target category,” said Lord Buxton.

“It must also show that the marriages targeted do indeed make substantial inroads into the enforcement of immigration control.”

One Whitehall estimate suggested 10,000 marriages a year were bogus. The official figure was around 3,700 in 2004.

Liam Byrne, the immigration minister, said he was considering an appeal. “Since we introduced these checks the number of suspicious marriage reports has collapsed from 3,740 to less than 300 by the end of May 2005,” he said.”

Thus, the laws were declared as inhuman and were repealed, but this came with a consequence. As the laws relaxed on the Sham Marriages, the real culprits, yet again, got a free hand and they started engaging themselves in the Bogus Unions once again, to get themselves out of the immigration worries. The major problem in this decision is that most of the time in these cases, there is always a non-British trying to get him to live in Britain, both in the case of Sham Marriages and in the case of proper contractual marriages. This is the claim mainly adopted by those who oppose the above decision by the court. But, everywhere in the world this seems to be a problem. You cannot apply a certain inhuman law to stop certain criminal activities, and damaging the interests of the rightful people. The people who were in favor of the law always claimed that a British wanting to marry a non-EU person should not be liable to pay anything to the government because marriage is his legal and lawful right. In short, there is a dire need of some comprehensive control without causing any damage to the interests of the people.

As I have said before that the annulment of the law did not come without a consequence. It was reported in the Daily Mail on 3rd October 2009:

“Sham marriages are booming after judges relaxed laws designed to prevent them, figures show. The numbers of illegal immigrants who stage fake ceremonies to stay in the country are likely to top 500 this year, the highest level since 2004.

Growing abuse of marriage laws appeared to have been stemmed that year after non-EU nationals were told they must apply for Home Office approval before marrying an EU citizen. But last year Law Lords said the rules against fake marriages breached human rights and could deny genuine couples the right to marry. The figures, an increase of 80 per cent compared with three years ago, were produced by the Home Office and disclosed by More4 News. They showed that there were almost as many suspect marriages in the first six months of this year as in the whole of 2006.”

This was an expected reaction, as the strict laws against fake marriages resulted in a number of people being denied the right of marriage. Therefore, I believe that the figures presented by the Home Office are not justified, because these figures do not represent that side of the group who were denied a genuine right to get married, who were actually the victims of these inhuman laws. Therefore, it is yet to be seen what would be the outcome of the annulment of these laws.

Key Facts About Immigration:

Referring to Migration Watch UK, here are the certain facts and figures about the immigrants coming into UK. The immigrants are arriving in the UK at the annual rate of 500,000 per year, and considering those who leave, the net foreign immigration is around 333,000. This is a sharp increase since 1997, and the total number of immigrants that have arrived in the country since 1997 is around 3 million including 725,000 illegal immigrants. One in every three citizens in London and one in every nine citizens in UK is born outside the country. England is the most crowded country in Europe and the illegal immigration would add to 7 million more people in the next 20 years. Nearly 40% of household formation in the period 2006-31 will be a result of new immigration – that is 2.5 million extra households. The number of foreign born workers over 16 had doubled since 1997 from 1.9 million to 3.8 million. Out of these 2.6 million came from outside the EU. One in seven pupils aged 4-11 does not have English as a first language – amounting to 466,000 children. 81% of the public agree that the government should substantially reduce immigration levels to Britain. (6)

The figures presented above are alarming for the policy makers. The foreign workers are taking the place of the UK and EU citizens, who in the current harsh economic realities find it difficult to manage their bread. The Schools have become overcrowded and similarly, other infrastructures need and expansion, like the housing projects and the health care systems including dispensaries and hospitals. Also, it should be noted here that the problem needs to be solved now, as the number is increasing at an alarming rate annually and situation might get out of control pretty soon.

Problem Of Sham Spouses:

(21)According to House of Commons Home Affairs Committee fifth report of the session 2005-2006 on the IMMIGRATION CONTROL the problem was discussed as follows on page number 75.

“Large numbers of people who are British or settled in the UK form relationships with and marry people who are not. Family settlement has always been an accepted aspect of immigration even when other kinds of immigration were not welcome and we repeat that the immigration authorities must provide a good service for such applicants.

However, the evidence provided to us suggests four particular problem areas in relation to spouses: difficulty in gaining settlement for genuine spouses; forced marriages; abusive marriages; and sham marriages.

There are many situations in which people who wish to stay in UK on the basis of their marriage to a UK resident must return to their country of origin to apply for the necessary immigration status, rather than being able to make their application in the UK. The immigration Rules currently stipulate that a person who wished to ‘switch’ to a spouse’s visa cannot do so unless they have been granted at least six months’ leave in another category. This requirement is new – previously switching was possible regardless of the length of time for which the applicant had been allowed into the country.

The change was intended to deal with the applications which were perceived to be fraudulent, and its main effect is to prevent those who are in the UK as visitors from being able to switch. The Government set out its reasons for changing the rules on spouses and partners in the White Paper Secure Borders, Safe Haven in February 2002. Changes were necessary, the Government argued, because more marriages than had previously been recognized were proving not to be genuine, either because the partner settled here had been tricked or because there was an organized attempt to defraud. That three quarters of those granted leave to remain as spouses in 1999 had entered the UK in some other capacity was (in the Government’s view) evidence of abuse system. The White Paper suggested that consideration would be given to compassionate circumstances where the person applying to remain as a spouse had been in the UK for some time. There is no guarantee that leave will be granted to those who decide to leave the country and apply for entry clearance to return under the Immigration Rules.

People without limited leave to remain in the country, for instance failed asylum seekers, cannot switch to a spouse’s visa under the Rules. However, a human rights claim may be made to stay in the UK; and family ties must be considered in the removal cases.”

Then in Article 316 this report discusses the problem with specific relation to Sham Marriages.

“Sham marriages are a threat to immigration control. Registrars have been concerned for many years about the number of marriages which they suspect are intended to circumvent immigration controls, and they have been frustrated about the lack of legal powers to enable them to prevent such marriages taking place. Changes to the registration process in 2001 apparently made little difference to the abuse system: Mark Rimmer, the Brent Registrar, estimates that between 2001 and February 2005 approximately 20% of all marriages in Brent were Sham, equating to approximately 250 marriages a year. He suggests that the incidence of sham marriages increased dramatically in late 2003 and early 2004 and that marriages between foreign nationals and EEA nationals, which are subject to EU free movement rules rather than UK immigration rules, were a particular problem.

In response to registrar’s concerns and media coverage of the issue, the Government established a “Bogus Marriage Task Force” in 2004 which included representatives from the Immigration Service, local government, the registration service and IND policy officials. This proposed a new scheme to govern marriages where one or both parties is/are subject to immigration control and does/do not have entry clearance as a spouse or fiancé. The new scheme was enacted in section 19 of the Asylum and Immigration Act 2004 and came into force on 1 February 2005. It has several aspects:

  • Notice to marry must be given by both persons attending together at one of 76 Designated Registrar Offices in England and Wales or any registry office in Scotland or Northern Ireland.
  • The foreign national must either have entry clearance specifically for the purposes of marriage or apply to the Home Secretary for a Certificate of Approval, at a cost of 135 pounds, before being allowed to marry in a civil ceremony.
  • In order to qualify for a Certificate of Approval the applicant must have leave that was granted for more than six months and at least three months of that leave must be remaining at the time of making the application.

When the new provisions came into force, Brent experienced a drop of 50% in the overall number of marriages taking place. The numbers of reports from registrars of suspicious marriages dropped from 3,740 to fewer than 200 between February 2005 and March 2006 and Home Office officials told us in March 2006 that from their perspective the new policy was working very well.”

So, these were some of the rules and regulations and their implementation procedures as given by the House of Commons to put a check on the Sham Marriages, as conducted by illegal immigrants who need an entry into the system. But, there were many repercussions. The Human Rights Committee considered these regulations a violation to the rights of marriage of a human being. This was made clear in the objections put forwarded by the Committee in the reports later on. There was also a huge cry from different people who considered it a violation of their basic right to pay some money to get some approval before getting married. Hence, the appeals were set up in the courts which resulted in the removal of these laws later on. But the global threat of terrorism and some recent cases where some immigrants involved in sham marriages were reported as terrorists, and so more strict laws but still acceptable need to be introduced.

Human Rights Concerns:

(21)These Human Rights Concerns, and issues raised by Joint Council for the Welfare of Immigrants are mentioned in the House of Commons Paper 775-i 2005-2006 on page no. 82.

The Joint Committee on Human Rights, reporting on the Bill which contained these provisions, considered that “there is a significant risk that the new procedures for marriage are incompatible with the right to marry because they introduce restrictions on that right which are disproportionate and which may impair the very essence of right.”

The Joint Council for the Welfare of Immigrants (JCWI) argued that the new requirements were in breach of the right to marry (Article 12 ECHR); a “disproportionate and ineffective response to the alleged problem of ‘sham’ marriages”; and potentially discriminatory on faith grounds. The JCWI believed that they received several calls and emails every week from couples affected by the new rules and their evidence gives several anonymous examples.

The Case Of Baiai And Others V Secretary Of State For The Home Department:

(21)The JCWI intervened in 2006 in a High Court challenge to the rules – the case of Baiai and others v Secretary of State for Home Department – which was lost by the Government. There were three couples involved in this case: an undocumented non-EEA national wishing to marry an EEA national legally resident in the UK; a couple both of whom had been granted exceptional leave to remain; and a pregnant failed asylum seeker wishing to marry an individual granted refugee status in the UK. These three couples were either prevented from or suffered delay in their marriages, which was considered legitimate by the JCWI. Mr. Justice Silber said that there was evidence of Sham Marriages in the UK and the Government was within its rights to try to prevent the fraud, but he ruled that section 19 contravened both ECHR Article 12 (right to marry) and Article 14 (right not to be discriminated against for reasons of, inter alia, religion or nationality). The ruling is summarized as follows:

  • He agreed that there is no necessary or logical connection between the genuineness of a proposed marriage and the length of time which a person has a leave to stay in the United Kingdom.
  • It is difficult to see what basis there is for presuming that all marriages in religions other than the Church of England are sham marriages.
  • It fails to take into account a number of factors which could be relevant to considering whether a proposed marriage is sham, such as evidence of a loving and lasting relationship.
  • Under section 19 the only factors considered to be relevant in determining a potential sham marriage in the UK are immigration status and length of outstanding application or appeal.
  • The regime does not allow those without the necessary leave to remain any opportunity to make their case for getting married without first leaving the UK.

Mr. Justice Silber said that the section 19 regime “affects the Article 12 rights of substantially very many more people than would be necessary to achieve the legislative purpose of preventing sham marriages.”

In a subsequent extended judgment issued in June 2006 the judge made a new distinction, saying that section 19 is incompatible with the ECHR as it applies to people who are in the UK lawfully but not those who are here unlawfully.”

These rulings made it quite clear the problems that these reforms had with their implementation. The Government, however, still reserves the right to control bogus or sham marriages but these legislations should be done in a way that does not violate the basic marriage right of the people. The major consideration in this regard should be the consideration that the EEC citizens have the right of free movement in and out of the country and their spouses do not need to apply through the normal immigration rules and the right of free movement is transferred through marriage. So, the laws and legislation should be applied across the board throughout the EEC.

Forced Marriages In Asia:

(22)Forced marriage, something that is very common in Asia especially South Asia, is a phenomenon in which one or both of the spouses are forcefully married without their consent or approval. It differs from Arranged Marriage, in which one or both the parties use help of a third party or a matchmaker to arrange a marriage, to which both the parties agree. In South Asia, women are generally the victims of forced marriages due to their weak social position. There are many Pakistani families living in Britain, who resort to force marriages of their family members in Pakistan, because they feel an obligation to acquire British Citizenship for some of their family members. As it attacks the freedom and autonomy of an individual, therefore, United Nations termed it as a human rights abuse.

In Britain Forced Marriage (Civil Protection Act) of 2007 was introduced by the Parliament, as deterrence for those who are threatened to be forced into marriages by their family members. This Act is applicable in Wales, England and Northern Ireland only.

According to this Act the court can take petition from any person either being forced into marriage of already married forcibly. The Court can take necessary action for the well being of the person in question and its jurisdiction includes the marriages taken place within or outside the country. The Court can also take necessary action against those who have already abetted or aided or conspiring to get a person into a forced marriage.

The Forced Marriage is a very common thing and it is as dangerous as the Sham Marriage. Most of the times the incidents go unreported, because of the people being forced in the marriage are financially dependent on others. But, the end result of both of these is the same, as the people who are otherwise unauthorized to come to Britain, are acquiring citizenships through this illegal process. All the legal and social problems that arise because of the sham marriage also arise due to this phenomenon. On the other hand this kind of marriage is a big violation of marriage rights and human rights of the individuals, so it should be tackled with an iron hand. The culture of forced marriages is mainly prevalent in the Asian countries, and each year many people get the unfair advantage and illegally acquire the UK citizenship, which is a major concern for the Home Department.

Social Issues:

(23)Sham marriage is actually a violation of marriage, which is a social and religious contract. Therefore, the sham marriage is a vice that eats away the fabric of the society. It’s a crime against society, a crime against humanity and a crime against religion. Immigration is itself a problem according to most of the sociologists, as it not only changes the demographics of the industrialized cities, but it also puts a burden on the already existing resources and puts a pressure on infrastructure. It is a menace that is always considered by the policy makers while making the long term plan for the development and up-gradation projects in the cities.

Islmization is a problem that is bothering many countries in the world especially in Europe and it is growing annually at a very alarming rate. Considering that many of the Muslims engage themselves in the sham marriages to get the legal status in Europe, it is one of the major causes of increasing Muslim population in the continent.

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