Spouses or partners wishing to obtain leave to remain under the Immigration Rules,  leave  to remain outside the Immigration rules by reference to Article 8 of the ECHR or a right of residence as  non – EEA family members  of EEA nationals,  can alike now  be subject to the tougher  approach by the Home office well before  their applications are even submitted.  The changes relate to the UK Government’s “strategy”  in relation to their  intention to tackle what they  consider to be sham marriages, marriages of convenience, abuse of rights  and fraud by applicants  considered to be seeking to  unlawfully obtain an immigration advantage.

On 24 November 2014,  the Minister for Immigration, James Brokenshire said in his ministerial statement.

“I am pleased to inform the House that, subject to Parliamentary approval of the necessary secondary legislation, I plan to implement important new provisions under part 4 of the Immigration Act 2014 to tackle sham marriages and civil partnerships on Monday 2 March 2015. Part 4 of the Act will give us a much stronger platform for effective, systematic action to disrupt and deter sham marriages and civil partnerships and prevent them gaining an immigration advantage..”

The currant raft of further new legislation  and  policy  Guidance by the Home Office  is  as if there  were  a sham marriage  behind in particular each  non –  EEA applicant  seeking  a right of residence under  EU law.

 SHAM MARRIAGES AND MARRIAGES OF CONVENIENCE

From 2 March 2015, the  definition  in the Immigration and Asylum Act 1999 was amended  by the 2014  Act. Under Sections 24 and 24A of the Immigration and Asylum Act 1999, as amended by section 55 of the Immigration Act 2014, a sham marriage or civil partnership is one in which:

• one or both of the parties is not a British citizen or an EEA or Swiss national;
• there is no genuine relationship between the parties;
• either or both of the parties enter into the marriage or civil partnership for the purpose of circumventing (avoiding) UK immigration controls, including under the Immigration Rules or the Immigration (EEA) Regulations 2006

Entering into a sham marriage does not entitle migrants any right to remain or reside in the UK.

Recital 28 to the  Parent Directive   2004/38EC provides:

“(28) To guard against abuse of rights or fraud, notably marriages of convenience or any other form of relationships contracted for the sole purpose of enjoying the right of free movement and residence, Member States should have the possibility to adopt the necessary measures”.

The 2006 EEA Regulations provide in Regulation 2:

“civil partner” does not include— (a) a party to a civil partnership of convenience; or (b) the civil partner (“C”) of a person (“P”) where a spouse, civil partner or durable partner of C or P is already present in the United Kingdom”

“spouse” does not include— (a) a party to a marriage of convenience; or (b) the spouse (“S”) of a person (“P”) where a spouse, civil partner or durable partner of S or P is already present in the United Kingdom”

The Home Office Guidance, “Direct family members of European Economic Area (EEA) nationals v.3.0 published on 29 September 2015”, currently  provides from  page 54, the  4 stage test that is  applied  where  home office  caseworkers suspect the marriage or civil partnership is one of convenience.

The case of Papajorgji (EEA spouse – marriage of convenience) Greece [2012] UKUT 00038(IAC) provides in its headnote:

“i) There is no burden at the outset of an application on a claimant to demonstrate that a marriage to an EEA national is not one of convenience.

1. ii) IS (marriages of convenience) Serbia [2008] UKAIT 31 establishes only that there is an evidential burden on the claimant to address evidence justifying reasonable suspicion that the marriage is entered into for the predominant purpose of securing residence rights.

iii) The guidance of the EU Commission is noted and appended”.

 ABUSE OF  RIGHTS AND FRAUD

The current Home Office Guidance is , “ Abuse of rights, fraud and verification of EEA rights of residence v1.0 Valid from 27 January 2015”.

With effect from 1 January 2014, new enforcement powers were introduced into the EEA Regulations to tackle the abuse of free movement rights.

 EEA nationals can be administratively removed from the UK for the abuse of free movement rights or fraud where appropriate and proportionate under new regulation 19(3) (c). Abuse of rights includes:

• participating in or facilitating a marriage of convenience
• trying to fraudulently acquire residence rights
• conduct designed to circumvent residence requirements, for example, exiting and re-entering the UK to re-set the initial unconditional 3 month period of residence

In addition, individuals involved in persistent low level offending cases as well as for serious offending will be considered for deportation by criminal casework.

Article 25 of the Parent Directive 2004/38/EC provides:

“Article 35

Abuse of rights

Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience.

Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31”

Regulation 21(B) of the EEA Regulations provides:

“Abuse of rights or fraud

21B. (1) The abuse of a right to reside includes—

(a)engaging in conduct which appears to be intended to circumvent the requirement to be a qualified person;

(b)attempting to enter the United Kingdom within 12 months of being removed pursuant to regulation 19(3)(a), where the person attempting to do so is unable to provide evidence that, upon re-entry to the United Kingdom, the conditions for any right to reside, other than the initial right of residence under regulation 13, will be met;

(c)entering, attempting to enter or assisting another person to enter or attempt to enter, a marriage or civil partnership of convenience; or

(d)fraudulently obtaining or attempting to obtain, or assisting another to obtain or attempt to obtain, a right to reside.

(2) The Secretary of State may take an EEA decision on the grounds of abuse of rights where there are reasonable grounds to suspect the abuse of a right to reside and it is proportionate to do so.

(3) Where these Regulations provide that an EEA decision taken on the grounds of abuse in the preceding twelve months affects a person’s right to reside, the person who is the subject of that decision may apply to the Secretary of State to have the effect of that decision set aside on grounds that there has been a material change in the circumstances which justified that decision.

(4) An application under paragraph (3) may only be made whilst the applicant is outside the United Kingdom.

(5) This regulation may not be invoked systematically. (6) In this regulation, “a right to reside” means a right to reside under these Regulations”.

There must be reasonable grounds to suspect the fraud and abuse and the decision must be proportionate.

Persons who are removed under Regulation 19(3)(a) and who seek to re-enter the UK within 12 months of that removal, must demonstrate they will be a qualified person upon-re-entry to the UK. Regulation 21B(1)(b) forces EEA nationals to show they would be a qualified person upon re-entry.  An EEA national who fails to show that they would be a qualified person immediately upon re-entry can be refused admission to the UK.

Regulation 21B(1)(c) extends this  power so an EEA decision can be made if there are reasonable grounds to suspect a person has either entered; attempted to enter, or  assisted another person to enter or attempt to enter, a marriage of convenience.  This applies equally to EEA nationals. In these instances any removal action would be taken under Regulation 19(3)(c). There must be reasonable grounds to suspect the fraud and abuse and the decision must be proportionate.

Regulation 21B(1)(d) includes a person who has fraudulently obtained; attempted to obtain, or assisted another to obtain a right to reside. This is intended to prevent someone benefiting from or relying on a fraudulently obtained right of residence. Examples of this could include:

• Misrepresentation of European Economic Area (EEA) nationality. For example using a false passport or identity card to claim they are an EEA national to gain a right of residence.
• Falsified evidence of relationship. For example using a fake marriage certificate to claim to be the spouse of an EEA national.
• Falsified evidence of the exercise of free movement rights. For example, using fraudulent wage slips or bank statements as evidence to show they are a worker or self-sufficient person in the UK.
• Misrepresentation of facts which go towards any qualifying criteria. For example, claiming to have permission to work for Croatian nationals.
• Falsified EEA documentation. For example, using a forged registration certificate or residence card as evidence of a right of residence when those rights do not, in fact, exist.

The Home Office consider that the following indicators may be present where a person is attempting to enter into a marriage with an EEA national that is not genuine:

• significant cultural difference;
•  significant age difference;
•  the parties cannot speak the same language;
•  the parties have poor immigration histories, including a history of deception and previous fraudulent attempts to gain leave to remain (this can include asylum claims);
•  there is no evidence of previous cohabitation;
•  there is evidence to suggest one party is already married.

In cases where the Home Office have reasonable grounds to suspect the marriage is not genuine, it may be necessary to conduct an interview to verify an  applicant’s claim.

When considering if a decision will be proportionate, the home office consider the following:

• The level of fraud or abuse. For example. How severe was the fraud or abuse?;
• To what degree did the person benefit from the fraud? ;
• What degree of involvement or knowledge did that person have in the fraud or abuse?;
• The personal circumstances of the person. For example: -are they in a state of poor health?
• -How long have they resided in the UK?
• The decision being taken against that person. For example: -Is the decision to remove a person from the UK? The Immigration (European Economic Area) (Amendment) (No.2) Regulations 2013 were amended on 1 January 2014 to include provision at regulation 20B for the Secretary of State to draw a factual conclusion and refuse or revoke documentation, or remove a person, if they have failed to meet this regulation. Regulation 20B(1) applies where the home office have reasonable doubt a person has a right to reside under Regulation 14(1) or 14(2), or want to check the eligibility of a person to apply for documentation under the regulations. Where regulation 20B(1) applies, the home office can invite a person to provide evidence to support the existence of a right to reside, or provide evidence to support an application for documentation, or attend an interview. If without good reason a person fails to provide the additional information asked for or fails to attend an interview on two occasions, the Home Office may draw a factual conclusion about that person’s entitlement to reside in the UK. The Home Office may only draw the conclusion that, on the balance of probabilities, the person does not have, or has ceased to have, a right to reside if there is other evidence to suggest the person does not have a right to reside.
• -Is this a decision to refuse or revoke documentation? Or

The EEA Regulations already contain terms for a non- European Economic Area (EEA) national who has entered into a marriage of convenience with an EEA national to:

•  have an application for documentation refused;
•  have any existing documentation revoked, and
•  be administratively removed from the UK.

Non-EEA nationals who have entered into a marriage of convenience must be treated as a normal immigration offender under the Immigration Rules unless the person has already been issued a document under the regulations as the spouse of an EEA national. If a document has been issued, the non-EEA national must be considered under the regulations. Removal action can be taken under regulation 19(3)(a) and/or 19(3)(c).  Non-EEA nationals who try to enter into a marriage of convenience with an EEA national can be treated as normal immigration offenders under the Immigration Rules, as they have not yet validly contracted the marriage.  If there are reasonable grounds to suspect a person has assisted another person to enter into a marriage of convenience, then regulation 21B(c) gives  the home office power to make an EEA decision against that person. EEA nationals who have entered, tried to enter or helped another person to enter a marriage of convenience can also be removed from the UK under regulation 19(3)(c).

RELEVANT CRIMINAL OFFENCES

The most relevant Home Office Guidance Policy is “Criminal investigation: sham marriage, v1.0 Published for Home Office staff on 19 August 2015”.

Throughout the UK there are 3 main prosecuting authorities for criminal matters relating to all immigration crime:

• The Crown Prosecution Service (CPS) – responsible for all cases in England and Wales. The CPS is responsible for prosecuting criminal cases involving sham marriages investigated by law enforcement agencies in England and Wales;
• The Crown Office and Procurator Fiscal Service (COPFS) – Scotland’s prosecution service;
• The Public Prosecution Service for Northern Ireland (PPS)

The main types of offences relating to sham marriages are:

• Facilitation (assisting people to enter the UK illegally):

Section 25 of the Immigration Act 1971 creates an offence of assisting unlawful immigration, known as facilitation. The offence was substituted by section 143 of the Nationality, Immigration and Asylum Act 2002. This covers any act facilitating a breach of immigration law by a non-EU citizen including a breach of another member state’s immigration law.

Under section 25(1) an offence is committed when a person does an act which facilitates a breach of immigration law by an individual who is not a citizen of the European Union; knows or has reasonable cause for believing that the act facilitates a breach of immigration law by the individual;  knows or has reasonable cause for believing that the individual is not a citizen of the European Union.

The offence includes assisting someone to remain in the UK by deception. For example by entering into a sham marriage or other forms of assistance which facilitate a breach of the immigration laws.

Section 30(1) of the UK Borders Act 2007 covers acts committed in the UK, regardless of the nationality of the perpetrator (person committing the crime) as well as acts committed overseas.

Facilitation is an either-way offence which means this offence can be tried summarily in the magistrates’ court or on indictment in the Crown court and the maximum sentence on indictment is 14 years’ imprisonment. It is also a ‘lifestyle offence’ under schedule 2 of the Proceeds of Crime Act 2002.

• Conspiracy to facilitate:

The Home Office are required to consider whether others also involved or playing a part in the sham marriage may have committed the offence of conspiracy to facilitate. These might include a vicar presiding over a sham marriage, parties to the sham marriage (including witnesses or wedding guests) or organised crime groups either in the UK or abroad.

Home Office caseworkers are required to  consider conspiracy to facilitate charges under Section 1A of the Criminal Law Act 1977. This is because the Home Office believe that  it is common in sham marriages for the non-EEA spouse to have to conspire with and pay the fixer or organiser for the marriage  and arranged spouse to carry out the unlawful act.  Those involved in the offence are  considered to be treated equally and fairly as both face potential maximum sentences of up to 14 years

In cases involving sham marriages it may be possible to prosecute the European Economic Area (EEA) spouse for either conspiracy to facilitate or a simple offence of seeking to avoid enforcement action.

When a conspiracy takes place inside England and Wales, they can be charged with conspiracy contrary to Section 1 of the Criminal Law Act 1977.

When a conspiracy takes place outside England and Wales and a person residing in England and Wales becomes a party to the agreement, they can be charged with conspiracy contrary to Section 1(1) of the Criminal Law Act 1977.

• Deception

In sham marriage cases, the non EEA national is considered to be  fraudulently seeking confirmation of a right, conferred under EU law, which can ultimately lead to them being issued an EEA residence card for an initial period of 5 years. This gives them all the rights and entitlements given under EU law and could eventually lead to permanent residence and British citizenship. They  are  therefore not seeking any form of leave to remain.  When a person marries an EEA national they do not get leave to remain in the UK. They are automatically entitled to apply for a residence card.  For this reason the Home office consider that the offence must be ‘secures or seeks to secure the avoidance, postponement or revocation of enforcement action by deception, contrary to Section 24A (1) (b) of the Immigration Act 1971’.

When a foreign national marries a British national in a sham marriage and subsequently applies for leave to remain in the UK, the offence under consideration must be ‘obtains or seeks to obtain leave to enter or remain in the UK by deception, contrary to section 24A (1) (a) of the Immigration Act 1971.

• Bigamy

If there is evidence either the EEA national or the non-EEA national was already married at the time their marriage in the UK took place, and the earlier marriage had not ended in divorce or been annulled, then the marriage is bigamous. In such cases the home office  consider the offence of bigamy either as a standalone offence or alongside other offences such as conspiracy to facilitate.

Reference to Offences Against the Person Act 1861 Bigamy or Section 24A (1) of the Marriage (Scotland) 1977  is also relevant.

• Perjury

Involved persons  can be charged with perjury.

Other Offences:

There are also offences available under the Civil Partnership Act 2004:

• In England and Wales, Section 32: offences relating to Registrar General’s Licence,
• Section 33: offences relating to the recording of civil partnerships,
• Section 80: false statements with reference to civil partnerships

REFERRAL AND INVESTIGATION SCHEME

The current    home office Guidance is “Immigration Act 2014 Marriage and civil partnership referral and investigation scheme: statutory guidance for Home Office staff, March 2015”.

The relevant Regulations are:

• Proposed Marriages and Civil Partnerships (Meaning of Exempt Persons and Notice) Regulations 2015 (S.I. 2015/122);
• Referral of Proposed Marriages and Civil Partnerships Regulations 2015 (S.I. 2015/123);
• Proposed Marriages and Civil Partnerships (Conduct of Investigations, etc) Regulations 2015 (S.I. 2015/397)

The Home Office believe that Part 4 of the Immigration Act 2014 reforms the process for giving notice of marriage or civil partnership to give the Home Office a much stronger platform for effective, systematic action to disrupt and deter sham marriages and civil partnerships and prevent participants from gaining an immigration advantage.

• Extension of Notice Period from 15days to 28days:

From 2 March 2015, the 2014 Act extended the marriage and civil partnership notice period from 15 days to 28 days for all couples in England and Wales marrying following civil preliminaries or forming a civil partnership, and requires all couples involving a non-European Economic Area (non-EEA) national who wish to marry in the Anglican Church in England and Wales to complete civil preliminaries and give notice at a register office and be subject to the 28-day notice period.

• Introduction of Referral and Investigation Scheme:

 From 2 March 2015, the 2014 Act, together with secondary legislation for Scotland and Northern Ireland, also introduced a referral and investigation scheme for proposed marriages and civil partnerships across the UK involving a non-EEA national who could benefit in immigration terms. All proposed marriages and civil partnerships in the UK involving a non-EEA national with limited or no immigration status in the UK, or who does not provide specified evidence that they are exempt from the scheme, are to be referred to the Secretary of State by the registration official.

 Where the Secretary of State has reasonable grounds to suspect a sham and at least one of the parties is not exempt from the scheme, she may decide to investigate whether the marriage or civil partnership is a sham. Notification of that decision to the relevant registration official will have the effect of extending the notice period from 28 days to 70 days, which will allow the Home Office to investigate and take appropriate enforcement or casework action where a sham is established. A couple will be unable to get married or enter into a civil partnership on the basis of that notice if they do not comply with an investigation under the scheme.

• Registration Officer’s Section 24 or 24A Report:

Registration officers are required to submit a section 24 or 24A report if, at any stage in the process, they have reasonable suspicions that the marriage or a civil partnership will be or is a sham. A report can be made at any point from when initial contact is made at the Register Office to any time immediately after the marriage or civil partnership has taken place.

Schedule 6 to the Immigration Act 2014 provides registration officers in England and Wales with powers to share information or documents with the Home Office where they suspect that an immigration offence has been committed.

Where a registration officer comes into contact with a suspected immigration offender during the course of the marriage or civil partnership process or while registering a birth or death, they can report this to the Home Office.

• The Investigation Decision under Section 48 of the 2014 Act  

Where a registration official refers a proposed marriage or civil partnership to the Secretary of State under the scheme, she must decide under section 48(2) of the 2014 Act whether to investigate whether the proposed marriage or civil partnership is a sham.

Under section 48(3) of the 2014 Act, the Secretary of State may not decide to investigate whether a proposed marriage or civil partnership referred under the scheme is a sham unless conditions A and B are met. Condition A is met if the Secretary of State is satisfied that only one or neither of the parties to the proposed marriage or civil partnership is an exempt person.  Condition B is met if the Secretary of State has reasonable grounds for suspecting that the proposed marriage or civil partnership is a sham.

Condition A is met if the Secretary of State is satisfied that only one or neither of the parties to the proposed marriage or civil partnership is an exempt person as clarified in  Section 49(1) of the 2014 Act.

Under section 49(1) of the 2014 Act, an exempt person is

• a relevant national, i.e. under section 62(1) is a British citizen or an EEA or Swiss national;
• has the appropriate immigration status, i.e. under section 49(2):
• has an EU right of permanent residence in the UK;
• is exempt from immigration control, as defined in paragraph 3 of the Proposed Marriages and Civil Partnerships (Meaning of Exempt Persons and Notice) Regulations 2015 (S.I. 2015/122), e.g. has the right of abode in the UK under section 2(1)(b) of the Immigration Act 1971, is a member of a diplomatic mission or their family member, or is a member of HM forces or of Commonwealth forces undergoing training or visiting forces;
• is settled in the UK within the meaning of section 33(2A) of the Immigration Act 1971, i.e. has Indefinite Leave to Enter or Indefinite Leave to Remain;
• holds a relevant visa in respect of the proposed marriage or civil partnership, as defined in paragraph 4 of the Proposed Marriages and Civil Partnerships (Meaning of Exempt Persons and Notice) Regulations 2015 (S.I. 2015/122), i.e.a marriage or civil partnership visitor visa granted under the Immigration Rules, a fiancé(e) or proposed civil partner visa or leave granted under or outside the Immigration Rules.

Condition B is met if the Secretary of State has reasonable grounds for suspecting that the proposed marriage or civil partnership is a sham.From 2 March 2015, the factors the home office will have regard to will include whether either party to the proposed marriage or civil partnership:

• Is an immigration overstayer or absconder or otherwise in breach of the conditions of their leave.
• Entered the UK illegally, or has been removed from the UK and should not be here.
• Has been convicted of a criminal offence or there is other evidence of links to criminality.
• Is recorded as deceased.
• Is currently or has previously been the subject of a section 24/24A report.
• Has previously obtained leave, or sought to do so, on the basis of deception or of false or forged documents.
• Has an outstanding immigration application based on their relationship with another spouse/partner, or has previously sponsored, or been sponsored by, another spouse/partner to come to or remain in the UK. This factor may also be linked to a previous marriage or civil partnership which, if not dissolved, would be a legal barrier to the proposed marriage or civil partnership of which the relevant registration official should be informed by the Home Office.
• Has a factor(s) in their immigration history which, based on a current analysis of immigration intelligence, casework and enforcement operations drawn up and quality assured according to Director General-approved procedures, otherwise gives rise to a reasonable ground to suspect that the proposed marriage or civil partnership may be a sham.
• Where the Home Office identifies that a proposed marriage or civil partnership involves an immigration offender, it may take appropriate enforcement action against that person, whether or not there are reasonable grounds for suspecting that the proposed marriage or civil partnership is a sham and whether or not it decides to investigate the proposed marriage or civil partnership under the scheme.

• Investigation

Where the decision maker is satisfied that only one or neither of the parties to the proposed marriage or civil partnership is an exempt person, i.e. that condition A is met; and there are reasonable grounds for suspecting that the proposed marriage or civil partnership is a sham, i.e. that condition B is met, the decision maker may decide that the Home Office will investigate whether the proposed marriage or civil partnership is a sham. Notification of that decision to the relevant registration official will have the effect of extending the notice period from 28 days to 70 days.

Under Section 48 the decision maker must make the decision whether or not to investigate and give notice of that decision to both parties to the proposed marriage or civil partnership, and to the relevant registration official, within the 28-day notice period.

Under section 51(1) of the 2014 Act, where the Secretary of State decides to investigate whether a proposed marriage or civil partnership referred under the scheme is a sham, the notice of this decision given to both parties under section 48 will set out the requirements with which they must comply as part of the investigation and the consequences of not doing so.

In particular, that section 48 notice will set out the requirements with which the party must comply as part of the investigation, and it may specify how they must comply with them. The requirements which may be imposed are those specified in the Proposed Marriages and Civil Partnerships (Conduct of Investigations, etc) Regulations 2015 (S.I. 2015/397).

In addition, where the Secretary of State decides to investigate whether a proposed marriage or civil partnership referred under the scheme is a sham, the section 48 notice of this decision given to both parties will inform them of the requirement to notify the Secretary of State of any change during the period of the investigation in the usual address of either party and to provide specified evidence of this. These requirements arise under paragraphs 8 and 9 of the Referral of Proposed Marriages and Civil Partnerships Regulations 2015 (for persons giving notice in England and Wales).

Where the Secretary of State decides under section 48 of the 2014 Act not to investigate whether a proposed marriage or civil partnership referred under the scheme is a sham, the section 48 notice given to both parties and the relevant registration official will enable the marriage or civil partnership to take place after the 28 day notice period, provided that the registration official is satisfied that there is no legal reason why they cannot issue or complete the required certificate or schedule.

A decision by the Secretary of State not to investigate a proposed marriage or civil partnership does not constitute a determination as to the genuineness of the relationship on which it is based. If the marriage or civil partnership takes place, any decision taken on an application under the Immigration Rules or the Immigration (European Economic Area) Regulations 2006 to stay in the UK which is made on the basis of the marriage or civil partnership will continue to involve an assessment by the Home Office of the genuineness of the couple’s relationship.

Where the Secretary of State decides to investigate whether a proposed marriage or civil partnership referred under the scheme is a sham, the investigation must be conducted in accordance with the Proposed Marriages and Civil Partnerships (Conduct of Investigations, etc) Regulations 2015 (S.I. 2015/397).

When carrying out such an investigation on behalf of the Secretary of State, the investigation officer may make such enquiries as they think fit for the purpose of determining whether the proposed marriage or civil partnership is a sham.

The investigation will focus on the genuineness of the relevant parties’ relationship and on determining whether the proposed marriage or civil partnership is a sham. It will often involve the relevant parties being required to make an initial contact with the Home Office, to arrange an interview and/or provide further information or evidence.

The investigation officer is required to undertake a focused investigation to obtain information and evidence relevant to assessing the genuineness of the couple’s relationship and determining whether the proposed marriage or civil partnership is a sham.

An investigation into a proposed marriage or civil partnership may involve imposing one or more of the following requirement(s) on one or both of the relevant parties to provide information, evidence or photographs; to be interviewed in person at home; to be interviewed in person at Home Office premises in or outside the UK or while detained in the UK; to be interviewed by telephone, video-link or over the internet.

As part of an investigation the investigation officer may require a relevant party to be interviewed, on their own, together with the other relevant party, or both. Interviews must be conducted in a properly probing, but balanced way, with the questions directed to establishing whether the relevant parties are in a genuine relationship and whether their proposed marriage or civil partnership is a sham. The person conducting the interview will make a written record of it and will provide the party or parties interviewed with a copy of this record if they request it.

Under Regulation 15 of the Proposed Marriages and Civil Partnerships (Conduct of Investigations, etc) Regulations 2015 (S.I. 2015/397), where the Secretary of State believes that a relevant party has failed to comply with a requirement of the investigation, the Secretary of State may give notice in writing to the relevant party.

Where a proposed marriage or civil partnership is subject to an investigation, under section 50(4) and (7) of the 2014 Act the Secretary of State must, within the 70-day notice period, decide whether or not each of the relevant parties has complied with the investigation (the “compliance question”) and give notice of that decision to both parties and to the registration official to whom the section 48 notice was given of the decision to investigate.

The decision maker may decide that a relevant party who fails, without reasonable excuse, to comply with a relevant requirement has not complied with the investigation- see section 50(11) of the 2014 Act,

The decision maker must decide, in the light of all the circumstances of the case and all the relevant information and guidance available to them, whether any reason or excuse given by either or both of the relevant parties for the failure by either or both of them to comply with a requirement notified to them constitutes a “reasonable excuse” for that non-compliance. Such a reasonable excuse may exist for example where there are compelling, compassionate reasons for failing to comply with the requirement; there are reasons beyond the control of the relevant parties which prevented them from complying with the requirement; there has been administrative failure by the Home Office.

Where the decision maker decides that both relevant parties have complied with the investigation, the decision maker must give notice of that decision to both relevant parties and the relevant registration official before the end of the 70-day notice period. If there is no legal reason why they may not do so, the registration official will be able, after the end of this period, to issue the relevant parties with the certificates or schedule that will enable them to marry or form a civil partnership.

Where the decision maker decides that one or both of the relevant parties have not complied with the investigation, they must give notice of that decision to both relevant parties and the relevant registration official before the end of the 70-day notice period. That notice must include a statement of the decision maker’s reasons for reaching that decision.

Where the investigation determines that the proposed marriage or civil partnership is a sham, the Home Office may where appropriate take an enforcement decision (e.g. curtailment, removal) against the non-EEA or EEA national(s) involved; refuse any application under the Immigration (European Economic Area) Regulations 2006 or the Immigration Rules which is based on the relationship in terms which will withstand any appeal or seek the prosecution of those involved in a criminal offence, e.g. perjury or facilitation of illegal immigration, by consultation with or reference to the relevant prosecuting authority.  Whether or not the investigation determines that the proposed marriage or civil partnership is a sham, the Home Office may take appropriate removal action against immigration overstayers or illegal entrants identified under the referral and investigation scheme.

EEA ADMINSTRATIVE REMOVAL

The current  Home Office Guidance is “Chapter 50 (EEA) – EEA Administrative Removal Version 8.2”.

An EEA national has an initial right of residence for three months beginning on the date on which he is admitted to the UK. During this three month period, an EEA national must not become an unreasonable burden on the social assistance system of the UK.  If an EEA national wishes to remain beyond this initial three month period, they must show they are exercising Treaty rights in the UK.  However, an EEA national can be removed from the UK during their initial three month period of residence on the grounds of abuse of rights or fraud. The  criteria for administrative  removals  is under Regulation 19(3)(c))

On 1 January 2014 the Home Office approach to the removal of EEA nationals changed. EEA nationals who are administratively removed for not exercising Treaty rights (under the current provisions) will not be able to re-enter the UK for twelve months following removal unless they can demonstrate that they will immediately be exercising Treaty rights upon re-entry. EEA nationals can now also be administratively removed from the UK for the abuse or fraud of EEA free movement rights (where appropriate and proportionate), namely: for participating in or facilitating a marriage of convenience, for trying to fraudulently acquire residence rights and for conduct designed to circumvent residence requirements.

An administrative removal may be undertaken against an EEA national or their direct family member in accordance with:

• Regulation 19(3)(a) where there is evidence that the person never had, or has ceased to have, a right to reside under the EEA Regulations (e.g. where the EEA national is no longer a qualified person, or where a non-EEA national family member has ceased to be the family member of an EEA national), or
• Regulation 19(3)(c) on the grounds of an abuse of rights under the EEA Regulations. Even if the EEA national has been in the UK for less than three months, or is otherwise exercising Treaty Rights. In serious cases of abuse it can apply to a person who has a permanent right of residence.

Both regulation 19(3)(a) and 19(3)(c) apply as if they were someone to whom section 10(1)(a) of the 1999 Act applies (EEA regulation 24(2) refers).

• Removal of a person may proceed  under Regulation 19(3)(c) where there are reasonable grounds to suspect the abuse of free movement rights or fraud :
• They have engaged in conduct which appears to be intended to circumvent the requirement to be a qualified person, or
• They have entered into, attempted to enter into, or assisted another person to (attempt to) enter into a marriage of convenience, or
• They have attempted to enter the United Kingdom within 12 months of being removed under regulation 19(3)(a) where the person attempting to do so is unable to provide evidence that, upon re-entry, the conditions for any right to reside, other than the initial right of residence, are met, or
• They have fraudulently obtained, attempted to obtain or assisted the (attempted) fraudulent acquisition of a right to reside under the EEA Regulations, and
• It is “proportionate” to proceed with removal given all the circumstances of the case.

Under EEA Regulations a ‘spouse’ does not include a party to a marriage of convenience, preventing non-EEA nationals from acquiring EU law rights directly from the marriage. However, they may have already obtained EU law rights outside of the marriage:

Genuine EU law rights but involved in abuse:

A non-EEA national who has acquired EU law rights through being a genuine family member of an EEA national who is exercising Treaty rights, or retaining rights under the EEA Regulations may be removed under Regulation 19(3)(c) in the same way as an EEA national if they meet the relevant criteria.

No genuine rights but has obtained residence card on the basis of a sham relationship:

If the Home Office has previously recognised someone as having an EEA right (even if that was on the basis of a sham relationship) a removal decision should be taken under regulation 19(3) (a) of the EEA Regulations. This will automatically invalidate the residence card at the same time. An appeal against removal under regulation 19(3) (with the exception of a decision taken on the grounds of public policy, public security or public health under 19(3)(b)) will suspend removal.

No Acquired rights:

Where a non-EEA national who has not acquired EU law rights enters into, or attempts to enter into, a marriage of convenience, they will become liable to removal.

Regulation 21B(1)(d) covers EEA nationals who fraudulently obtain, attempt to obtain or assist the fraudulent acquisition of, a right to reside under the EEA Regulations. Examples of this could include misrepresentation of EEA nationality (false passport or identity card); falsified evidence of relationship (fraudulent marriage/birth/divorce certificates etc); falsified evidence of the exercise of Treaty rights (for example, fraudulent wage slips, bank statements, letters confirming study, claims a person is self employed but HMRC checks confirm the person is not registered); misrepresentation of facts regarding any qualifying criteria (permission to work for Croatian nationals, permanent residence etc); falsified EEA documentation (registration certificate, residence card etc). Removal may proceed under Regulation 19(3)(c).

As regards appeal rights in non- EEA family cases,  the case of R (on the application of Bilal Ahmed) v Secretary of State for the Home Department (EEA/s 10 appeal rights: effect) IJR [2015] UKUT 00436 (IAC) provides in its headnote:

“(1) The fact that P (who is not an EEA national) has a  right of appeal under the Immigration (European Economic Area) Regulations 2006 against an EEA decision to refuse P a residence card does not have the effect of precluding the Secretary of State from removing P under section 10 of the Immigration and Asylum Act 1999.

(2)   Section 92(4)(b) of the Nationality, Immigration and Asylum Act 2002 (as it was before the changes made by the Immigration Act 2014) does not afford P an in-country right of appeal against the section 10 decision, where the issue of whether P is a member of the family of an EEA national is a matter of dispute.

(3) The factual issue of whether P is a family member falls to be determined by the First-tier Tribunal on appeal by P against the EEA decision and/or the section 10 decision, whether or not P may by then be outside the United Kingdom. A judicial review by P of the decision to remove and/or the setting of removal directions will not succeed where P’s application is based on marriage to an EEA national, if the Secretary of State reasonably suspects P of being a party to a marriage of convenience”.

It is however understood the case is under appeal to the Court of Appeal  where permission to appeal has been granted.

NON- EEA ADMINSTRATIVE REMOVAL

The current Home Office Guidance is “Chapter 50 Liability to administrative removal under section 10 (non EEA)”.

From 6 April 2015, a person who requires, but does not have, leave to enter or remain in the United Kingdom is liable to removal 1Under section 10 of the 1999 Act, as amended by section 1 of the Immigration Act 2014.

Such a person must still be notified of their liability to removal. If a person is subject to enforcement action for breach of conditions or deception, their leave must be brought to an end to make them removable.

Immigration Enforcement should no longer serve IS151A, IS151A part 2 or IS151B from 6 April 2015. RED.0001, replaces forms IS151A, IS151A part 2 and IS151B from the previous removal system.

Removals under the EEA Regulations are not yet changing and forms IS151A (EEA) and IS151B (EEA) continue to be used.

A decision to refuse a protection (asylum or humanitarian protection) claim, a human rights claim or to revoke protection (asylum or humanitarian protection) status where the claim is not certified and the decision is made while the affected individual is in the UK now attracts an in-country right of appeal. This applies to all protection and human rights claims and decisions to revoke protection status decided on or after 6 April 2015, regardless of the date of application.  No other decision made on or after 6 April 2015  will attract a right of appeal except for  specified  transitional appeals.

There is no right of appeal against the refusal of an application for work or study (PBS) leave. (There are transitional arrangements where a Tier 4 application was made before 20 October 2014, or a Tier 1, 2 or 5 application before 2 March 2015). An unsuccessful applicant may apply for administrative review to challenge alleged case working errors.

There is no right of appeal or administrative review against a decision to curtail leave or against the service of notice of liability to removal where a person has no leave.

A person is liable to curtailment if deception is used in obtaining or seeking to obtained limited leave by deception.

CONCLUSION

The Home office in its approach to whether the marriage is a sham or one of convenience,  appears to be applying a blanket approach  when considering applications in particular  from non – EEA nationals married to EEA  spouses.  A family member may have previously  been  issued with a 5year residence card, however upon application for a permanent residence card, the home office is seeking to  interview  both parties  yet again even if there have been  children to  that marriage during the 5years.

Even first time applicants for residence cards,  having children with their  EEA spouses,  are being interviewed  with applications refused on the basis  that theirs is a marriage of convenience .  The  negative decisions are based upon  supposed  differing  responses to the same questions,   sometimes  with insignificant and irrelevant  questions being asked  within a marriage interview  of which even a  couple to a 30year  marriage  may  “ fail” such an interview.

The result of such refusals, occasioned by this new tougher approach, where genuine couples are caught  up  by  Home  Office paranoia, is  an even further  clogging up of a currently labouring  Tribunal system  with unnecessary appeals and  even more  unnecessary anxiety for genuinely  married  couples.