May 18 2022

Pragmatism & marriage go together like…

Pragmatism & marriage go together like…


Yesterday the Advertising Standards Authority (ASA) ruled that Theresa May and her Home Office ‘go home’ vans were misleading in their claims about the number of illegal migrants being arrested. The ASA, whilst acknowledging that the phrase ‘go home’ was ‘reminiscent of slogans used in the past to attack immigrants in the UK’ (think 1970’s and the National Front), did not – as many papers reported – ban them. This was seemingly on the basis that the message was neither ‘offensive nor irresponsible’.

Immigration and Europe are, of course, continually conflated by politicians and the public alike. Theresa May’s Immigration Bill, published today, threatens a clampdown on ‘sham’ marriages. One of the hot topics, as identified by the EU Commission, os that of so-called ‘marriages of convenience’ – in particular why the UK is by far and away the most likely EU country to detect, report and take action against such marriages. The EU Commission remain unsure whether this is due to UK efficiency in rooting out such marriages (unlikely as the UKBA are involved) or there is some other explanation?

The definition of a ‘marriage of convenience’ – adopted in 1997 by the Council of Ministers of the EU (council resolution 97/c382/01) – is of a marriage concluded: ‘With the sole aim of circumventing the rules of entry and residence.’

The moral gate-keeper
However the UK has, over the last five decades, frequently sought to exclude not only those whose marriages were contracted with the ‘sole aim’ of avoiding immigration control, but also to exclude those for whom immigration played a contributory, even minor role in the decision to marry. In large part this ‘moral gate-keeping’ appears to have been driven by the desire to prevent not only the entry of those who may have participated in a ‘sham marriage’, but of immigration through marriage generally.

A marriage of convenience is actually allowed in UK law (Silver v Silver). Whether such a marriage gives rise to residence rights is however determined by immigration law – with the Council of Ministers definition narrower than that contained in s24 (5) of the Immigration and Asylum Act 1999 which defines a ‘sham marriage’ as – one entered into for the purpose of avoiding the effect of ‘UK Immigration law’

Whatever the terminology used, a broad brush approach to such marriages is problematic. Pragmatism and marriage often go together (like horse and carriage… ) and not just because of the trite observation that a number of cultures still see this as the best way to achieve a successful and enduring partnership. English culture was not (and is probably still not) immune – as the writings of Jane Austen and Bridget Jones testify to. Factors considered important in determining a decision to marry often include at their forefront economic and social status. More universally, marriage will still often reflect a tendency to choose spouses who resemble and complement each other in some way or form (such as Dave and Sam Cam or Chris Grayling and a baked bean).

There seems therefore to be little or no binary divide between a marriage entered into for ‘good reasons’, such as compatibility, and those that might be considered ’bad’, such as for social or economic gain. Marriage and immigration should also be seen in that context, with immigration status potentially adding to a potential spouse’s attractiveness and marriageability – and thus able to secure Tory tax breaks – but not being the sole reason for it.

The practical effect of how this plays can possibly be seen within the EU Commission’s area of interest – detection levels – as well as how the wider immigration discourse is conducted, with at present the use of such terms as ‘fraud’ and ‘abuse’ being commonplace.

In the UK various criteria are used to try and determine whether a marriage is a ‘sham’ entered into solely for immigration purposes – these include whether the applicant has an adverse immigration history (such as a failed asylum) and/ or where there is little or no evidence of the relationship other than a valid marriage certificate. This might include differences in age and background or where the applicant and the European Economic Area national have no common language – on this basis, Bruce Forsyth’s 30 year marriage may well have been the subject of extreme scepticism had the UKBA been in operation at the time.

In 2012 a number of cases looked at the subject of marriage and immigration rules for spouses, in particular the evidence and burden of proof in such cases. Fortuitously, both for the spouses involved and for common sense evangelicals everywhere – Mr Justice Blake – until very recently the President of the Upper Tribunal’s Immigration and Asylum Chamber – was involved in all three.

In the case of Papajorgji (EEA spouse – marriage of convenience) Greece [2012] UKUT 00038 (IAC), the tribunal noted that there was no burden on the applicant to prove that a marriage to an EEA was not a marriage of convenience. In Goudey (subsisting marriage – evidence) Sudan [2012] UKUT 00041 (IAC), the tribunal observed that all of the 115 questions in the visa application form had been properly completed and rather that it was the immigration judge who had erred in law by imposing his own expectations of how a couple might conduct their relationship. Judicial criticism was, in particular, leveled at the bizarre finding of the immigration judge concerned that the absence of texting somehow suggested the relationship was less than genuine. In order to show a “subsisting marriage” which qualified under the immigration rules what was required was simply for the parties to show that there was a genuine intention to live together as man and wife in a married relationship. Finally the case of Naz (subsisting marriage – standard of proof) Pakistan [2012] UKUT 00040 (IAC), reiterated the fact that post-decision evidence is admissible if it goes to show what the situation really was at the date of decision.

Judicial evaluation of other people’s relationships is never ideal – but importantly, the theme that underpins all three cases, is that it should not be assumed – by the UKBA, the courts or by policy makers generally – that the starting point when looking at ‘marriages’ is that all immigrants are liars who must somehow prove otherwise. The standard of proof is, after all, simply ‘more probable than not’. It would also not be a surprise to find that when the EU Commission does get round to consider the prevalence of ‘sham’ marriages and the UK’s high detection rates, that ‘attitudes’ as much as effective procedures are the reason.