This essential Immigration law webinar will look at the marriage referral and investigation scheme, UKVI Guidance and more.
Hello. Welcome to this session for data law. On challenging sham marriage allegations in Immigration law. My name's Prius Solanki and I'm a barrister at one point. Court chambers in London. I practice in Immigration Asylum in Human Rights. I do have a particular interest in this topic and have actually written a practical guide on this issue as well, which I will again refer to at the at the end of this session. Now, what we're going to be covering in this session is first of all, the right to marry. Um We will then move on and have a look at the definition of sham marriage and marriage of convenience. There is a difference in the definitions and it has led to um some concerning decisions. It's what I will say. So it's important that practitioners are aware of the differences um so that they're able to properly prepare and challenge in these cases, were then going to move on and have a look at the marriage referral and investigation scheme. That was something that was brought in in 2014 by the in March of 2015, by the Immigration Act, 2014. Well then look at investigations and enforcement action that occurs outside of that marriage referral and investigation scheme. And throughout this session will be having a look at statutory guidance policy guidance regulations, of course, the 2014 Act and relevant case law. Well, also we're also going to be looking at sham marriage enforcement actions and offenses and we'll just touch upon that for completeness. So, quite a lot of material to get through. So let's make a start. So let's start by having a look at the right to marry. Now. Um Mhm. The right to marry is set out in Article 12 of the European Convention on Human Rights and what it says is that women, men and women of marriageable age have the right to marry and found a family according to the national laws governing the exercise of this right when considering sham marriage allegations in immigration law, it's important to not lose sight of the right to marry. Um Now, there's been a number of cases that have looked at the right to marry. Um There is a case called flurry, which isn't on your handout i it's a South african Constitutional Court case, but it's not necessary for you to be on your handout. But what it said was that marriage law goes well beyond legitimizing relationships and securing legitimate hairs to family property. It's much more than a piece of paper. And then in the case of by which is the first bullet pointed um authority on this slide, um what was said is that marriage has deep significance for many people, it brings legal, social and psychological psychological benefits to a couple when they marry. Um whilst they marry and also when the marriage comes to an end and denying those benefits to a couple whose relationship is genuine is not a rational or proportionate response to the legitimate aims of fair and firm immigration control. So that's a good starting point in looking at the significance of marriage. Um Now the right to marry has also been described as a fundamental right subject only to national laws which govern its exercise. So national laws can lay down formal rules such as notice publicity and formalities, um but they can also lay down rules of substance and that's things that recognize considerations of public interest. So that's matters such as capacity to marry, consent to marry, ensuring that the parties entering the marriage are not within the prohibited degree of relationships and also preventing bigamy. Um The second bullet pointed authority on this side, it's case of hammer and the United Kingdom. And what that says was that national laws governing the exercise of the right to marry must never in chur or impair the substance of the right. They must not deprive the person or a category of person of full legal asian capacity of the right to marry, and they must not substantially interfere with their exercise of that right. However, in a and the U. K. What was said was that the right to marry, it doesn't guarantee the right to choose the geographical location of the marriage or for an individual to say that they want their marriage to occur under a particular legal system. Furthermore, in a number of cases, Sanders clipping Kruger O'Donoghue. Um what has been established is that national laws can properly authorize the authorities to delay a proposed marriage between a citizen of their country and a third country. National for a reasonable period of time in order for them to establish whether the marriage is one of convenience and if it is to prevent it. So this is how the state is able to Investigate marriages of convenience and in in some circumstances prevent them from occurring now. Article 12. Um it does not apply beyond the right to marry. So for example, it doesn't apply to stay too facilitate the parties to the marriage remaining. Um in a particular country in order to found their family life. And of course, a non genuine Marriage does not give rise to family life. Now arguments about family life and private life. Those are to be examined under article aid. But Article eight does not protect individuals who are in non genuine relationships. And it's because of this that the government has made identifying and excluding sham marriages and marriages of convenience a crucial part of reducing immigration control and why there is so much law around it. Okay, so I've already, in this webinar made use of the terms sham marriage and marriage of convenience and the terms are often used exchange a ble by the home office. And indeed by practitioners. But is there a difference between the terms and if so, what's the significance of that difference? So let's go on and now have a quick look at the definitions as they are set out in the law and and analyze where the difference is mm hmm. So you can see from this slide that sham marriage is defined in section 24 and section 24 Ray of the immigration and asylum at 1999. And how it's defined as is it said it's where there is no genuine relationship between the parties and the parties are entering the marriage or civil partnership for the purpose of circumventing immigration control. Okay, so now let's go on and look at marriage of convenience and that the definition of that appears in several places, including the directive, the Immigration Regulations 2016 and in Appendix C. U. Appendix. Ceo. And the regulations are also referred to durable partnerships of convenience, giving those the same definition as As marriage marriages of convenience. And the definition that's given is that it's a marriage entered into for the purpose of circumventing immigration control. So one can see instantly that there is a difference there in the definitions. Sham marriage contains two parts at marriage of convenience only contains half of the definition of sham marriage. In sham marriage there has to be no genuine relationship between the parties. And then in addition to that the parties are entering the marriage or civil partnership for the purpose of circumventing immigration control. In a marriage of convenience. We're simply looking at whether the marriage has been entered into for the purpose of circumventing immigration control. Now that can lead to a situation where under a marriage of convenience definition, a genuine relationship um can be caught out because there is no requirement in that second definition for there to be um no genuine relationship. And we'll look at how this has played out in some cases. Now, the case of Molina. Now, Molina was a case in which a bolivian national entered the UK legally in 2007, in 2013. In the spring of 2013, he met an Italian national and they entered a relationship in September of 2014. They started to live together and then they plan to marry in May of 2015. Now, the Secretary of State, she accepted that there was a genuine relationship and she accordingly accepted that because it was a genuine relationship, it could not meet the definition of a sham marriage. However, despite finding that it was a genuine relationship, she found that it was a marriage of convenience. And that was because the definitions were different and it was concluded that it was a marriage that was being entered into for the purpose of circumventing immigration control, because mr Molina, the bolivian national was rushing to get married because he knew that his immigration status would benefit from doing that. And when that decision was challenged to the High court, they agreed with the Secretary of State's conclusions and they noted that there was a distinction between the two terms. Now, one can see what a bizarre result that is because it's quite a long standing relationship, a relationship which has been ongoing for almost two years and where they had been living together for over a year by the point at which they plan to marrying. Now, fortunately, the decision in Molina was appealed to the court of appeal. And when it was appealed to the court of appeal, the decision of the High Court was set aside by consent. Now have provided on this side a link to the free movement site because on there, the statement of reasons which accompanied the consent order are available to read and they're very detailed statement of reasons. And I suggest that you do go away and read those in full. But what was accepted was that what the Secretary of State accepted was that mr Molina and the national um might be rushing to get married, but that was likely to fall more on the side of legitimate advantage taking rather than abusive rights. They said that there could be cases where durable partners um might end up being in a marriage of convenience. But on the facts known in this case, um it wasn't uh the distinction that was drawn between sham marriage of man and marriage of convenience, it wasn't sustainable and uh the decisions were accordingly um not fair or rational. So um ultimately what the outcome of that case was a good result on appeal and you have to ensure that when Molina, the high court decision is being referred to by the Secretary of State in a case that you refer to what happened in the court of appeal and statement of reasons. But we are left with this difference in definition and the fact that it can catch out individuals who are in genuine relationships. So, let's just go back and look at the definition a little bit more. Um So, under both definitions, it requires a consideration of what the purpose is for the marriage or civil partnership. And in both definitions, the purpose has to be circumventing Immigration control. Now, how has that been approached in cases? So for quite some time, it was the case that for um a marriage of convenience or a sham marriage to be made out, it had to be done with the sole aim of circumventing the rules on entry and residence in immigration law. Now, that you can see that's quite a difficult test for the Secretary of State to make out that the sole aim of the marriage is simply to circumvent Immigration control and the sole aim test. It was referred to in the european Council resolution, and it's also referred to in the directive itself. And there was a case called The Eye in the House of Lords which said that there are many perfectly genuine marriages which may bring some immigration advantage to one or both of the parties depending on where for the time being. The parties wish to make their home, but that does not make them sham marriages. And in coming to that conclusion, the House of Lords referred specifically to the requirement for the sole aim of the marriage to be an immigration advantage. Now, unfortunately, in two 1,017, the Supreme Court moved away from that approach and that was done in a case called Sadowski to and in doing that, they had a look at the european directive and a communication from the Commission and they noted that both of those referred to the sole purpose of the marriage or civil partnership being um uh one being being for immigration advantage. However, they looked at also a handbook from the European Commission Data 2014, and that said that the immigration benefit has to be the predominant purpose. Now, preferring the handbook over the directive and the resolution, they moved away from the sole purpose definition to the predominant purpose of the marriage being formed um in an immigration benefit. And whilst that's still quite a difficult test for the Secretary of State to to meet it is um more generous to the Secretary of State than the sole aim um test that was previously there. And a good example of this is the case called seafaring. Now, Safari was a case in which the Secretary of State actually reached no conclusion on whether or not the parties were in a genuine relationship. Um Now, what led her to the conclusion that the predominant purpose of the marriage was for an immigration benefit was that the EU national to the marriage admitted that she had researched how marriage could benefit the non EU partner to the relationship. And that taken together with the fact that the Foreign national could be assumed to know that his marriage to any EU national would assist. His immigration status was deemed sufficient for the Secretary of State to be able to conclude that that was being entered into predominantly for an immigration advantage. Now, that is a case and a decision that's very troubling. And I certainly haven't seen many. First here tribunals come to those types of conclusions based on those sorts of inferences and those types of facts. Um Now, it's important to go through the detail in Sadowski would care. So, for example, in some Dafovska, what Lady Hale said, was that an overstated in the UK might be delighted to find an EU national with whom they could form a relationship and who was willing to marry them. But that did not necessarily mean that that was a marriage of convenience. And we'll look at said Oscar um some more um in a in a moment. Yeah, Okay, so we have considered how important purposes. So how are you going to demonstrate to the Secretary of State or to a tribunal, what the purpose is for your for your particular clients, you're going to have to go through the reasons that they are intending to marry or that they did get married in quite a lot of detail with them. And you're going to have to address that in a witness statement. Now, when you're going through those reasons, um, you know, ensure that you do it with a lot of care and ensure that witness statements are drafted with a lot of care because putting in a wrong word, um, could actually lead to a lot of complications for a client. So it may well be, um, that the policies to you are saying that they wish to remain here um, together for the foreseeable future. And that's why they have partly decided to enter into a marriage. Now you would want to explore that with them a little bit further. What has been said there is that they want to remain here together. What was the focus for them? They want to remain together and as part of that their life is currently settled in the UK. And so it makes sense that they marry in order to be able to remain here together. It needs to be broken down into quite a lot of detail. Now, it may well be that for a particular couple, there isn't a predominant purpose to the marriage or the civil partnership. It may well be that there's a number of reasons why they wish to enter that marriage or civil partnership or take that next step. It might be for traditional reasons, religious reasons, cultural reasons and all of that needs to be broken down and gone into in the witness statement. It might be that because they are preparing to have a family um, or that it just seems like it's the natural progression in their relationship. Now, what was said, um inside Oscar was that incidental immigration and other benefits are insufficient for a marriage of convenience to be made down. So if part of it is that it also brings an immigration benefit. But that's one of many reasons then applying said Oscar, that wouldn't be sufficient to make out a marriage of convenience. It's not the predominant purpose. I also have a look at the case of Arun Kumar, which I put on the handout. It's quite an old decision, but it's worth referring the Secretary of State and the tribunal to what was said there was that any attempt to achieve a delicate and detailed analysis of the motives for the marriage is more likely to confuse than enlighten the motives will often and perhaps usually be complex. And they will defy such analysis. So now we're going to move on and have a look at the marriage referral and investigation scheme and that was brought into force in March of 2015 as a result of the Immigration Act 24 14 in particular. Part four of that act. But before I go and have a look at the detail within that, I just want to touch upon how um the Home Office have tried to control migration to the UK through marriage and relationships over the years. Several requirements have been introduced into the immigration rules to try to reduce the flow of spouses, civil partners and unmarried partners as well into the UK. Um so in two 1003 the immigration rules were changed so that spouses and unmarried partners were granted two years leave to enter or remain as opposed to one year. Now that was done so that they could test the period Of the relationship for longer before individuals went on to obtain indefinite leave to remain. In 2005, a certificate of approval scheme was introduced where individuals who were subject to immigration control and without indefinite leave to remain um in the UK had to apply to the Secretary of State for permission to marry before their marriage and they were only permitted to marry at certain designated registry offices. Now, there was a mandatory fee that had to be paid for the certificate of application to, And um that scheme was abolished in 2011, after a lot of litigation in which it was found that the scheme was disproportionate interference with the exercise of the right to marry. in 2000 11, there was a consultation called family migration, and in that they looked at a number of proposals to address um family migration, And that included having a minimum-income threshold, which we now have the 18,600 having a probationary period extended from two years to five years. Um So that there's a longer period to test the genuineness of the relationship before individuals go on to obtain indefinite leave to remain. And it also um considered the proposals that have led to the marriage referral and investigation scheme and ultimately appendix F. M and appendix F M S. E. So with that in mind that let's now go on and have a look at the marriage referral and investigation scheme. Okay, so the scheme essentially has um four parts to it. The first part is the referral. The second part is a decision whether or not to investigate a marriage of civil partnership. The 3rd part is the investigation. And the fourth part is a decision on whether or not the parties have complied with the investigation. Now, just to give you some background, um all marriages and civil partnerships in England and Wales are subject to a notice period, as of March 2015. That's been a 28 day notice period in which the the intention to marry is publicized. Now, when an individual, when parties go and give notice to marry or into a civil partnership, Um as a result of the immigration at 2014, if that marriage or civil partnership includes an individual who is not an exempt person, there will be a referral made to the Home Office. So that's the first part, the referral and we are going to look at who is and is not exempt in a moment. Now, once there is a referral, there will be a decision whether or not to investigate that marriage or civil partnership. And there will be an investigation where the marriage or civil partnership includes somebody who's not exempt and where the Secretary of State has reasonable grounds to suspect that the proposed marriage is a sham. And in those circumstances, in order to conduct her investigation, she will serve notice which says that she is going to extend The notice period from the 28 days to the 70 Days to 70 days. And in that 70 day period she is to investigate that marriage or civil partnership. What we then, So that's the second part of the decision to investigate what we then have is the third part, which is the investigation. Now, there's a number of regulations and statutory guidance that have to be complied with by the Secretary of State and indeed the parties when they are being investigated. And we're going to go through that in a lot of detail. And then finally, at the end of that investigation, she will serve a decision on whether the parties have complied with that investigation and that decision to there's requirements for the Secretary of State to comply with. And it's that decision that will generally be subject to challenge. Now, um let's have a look at the investigation decision. Now, I said as part of the referral, an individual has to be an exempt person. But also in order for the Secretary of State to decide whether to decide to investigate one of the grounds that has to be met is that she has to conclude that the one of the parties to the marriage of civil partnership um is not an exempt person. So what's an exempt person? Let's have a look at that. So, as of July 2021. So this is as a result of Brexit, an exempt person, is somebody who's British irish has settled status, pre settled status um or has made an application under the U. S. S. Scheme submitted Prior to one July 2021, or they've got permanent residents as a result of a enforceable eu right or they're exempt from immigration control. So that's indefinite leave to remain. Or they've got the right of abode. Individuals are also exempt if they've got a marriage or civil partnership visit visa under the immigration rules, or they've got a fiance or proposed civil partner leave under the immigration rules. So that's who an exempt person is. And that is what if you don't fall into those categories and you're giving notice to marry, you're going to be referred to the Secretary of State for investigation. Um Now we then look at the investigation decision. So as I have said, the Secretary of State can only investigate if one or neither of the parties um is an is an exempt and there are reasonable grounds for suspecting that the marriage or civil partnership is a sham. Now, in looking at whether or not the marriage or civil partnership is a sham. What the Secretary of State says is that she looks at risk profiles. She looks at intelligence um and evidence based risk profiles. So in terms of risk profiles, what has statutory guidance says is that this includes in an individual being an overstay or an absconder being in the UK and breach of their conditions of leave having entered illegally, having previously been removed from the UK um having criminality in their history, previously being suspected of being involved in a sham marriage or sham partnership having previously made an application to the Secretary of State that's based on a relationship with another individual or anything else um in their history that gives rise to reasonable grounds to suspect. So you can see that's quite broad. And what's concerning about that. Um Is that particularly for EU cases? Um There's a decision um called metric and in um Meh tickets 2000, I'll give you the citation. It's 2009 all England Law Reports E. C. 40. And what was said in that case is that for family members of Eu nationals to have rights, their immigration history was really not relevant how they had entered how they resided, it wasn't relevant. Um And it can be important to refer the Home Office to that case, where there are investigations being carried out or there is a sham marriage allegation. Um And it's these sort of factors that are being referred to. So um if she if she considers that we've got a nonexempt person and that there are reasonable grounds for suspecting um then she will go on to investigate. Now I should say those factors that I have just set out those trigger an investigation, that's all that they do. So afterwards there will be more scrutiny as to whether or not there are reasonable grounds for suspecting at least that's what her statutory guidance says. So the at presence of one of those factors doesn't mean that there's reasonable grounds for suspecting. What it means is that she will then go on and conduct more scrutiny into the case. Um if she decides to investigate, then within the 28 day notice period, she has to give notice of that decision to both of the parties um to the marriage or civil partnership and to the registration official. If she doesn't give notice within that 28 day period then, and she and she serves notice of the investigation on the 29th or 30th day. Well then that is not a lawful Decision and you would have, you would want to challenge any decision to investigate that's made outside the 28 day notice period. Now her notice has to comply with a number of requirements. For example, um It should explain Um when the 70 day period is coming to an end, what the possible outcomes of the investigation will be. Um and the consequences of that of um that that type of outcome. You should have a look at the referral of proposed marriages and Civil Partnership Regulations 2000 15 in looking at whether or not a particular notice complies with the regulations and the whole point of the investigation is to look at the genuineness of the relationship. Okay. So she's made a decision to Investigate and she has served notice of that and she's done it within the 28 day period. What she's saying is As I've already said, is that within now that the notice period is now extended to 70 days And within that 70 day period she is going to carry out an investigation into the relationship to determine whether or not the marriage of civil partnership is sham. So how will she conduct that investigation? And the conduct of the investigation is now what we're going to move on and look at. Yeah. Yeah. So statutory guidance sets out how an investigation should be conducted by the Home Office. Um And it's really important to go away and have a look at that statutory guidance in full in order to be able to advise your clients what is required of them. Because if they don't comply with the investigation then the ultimate decision is going to go against them and it's important to know what the Secretary of State should be doing in an investigation so that you can challenge something when they what they're doing is not in accordance with statutory guidance or regulations or indeed the Immigration Act 2014. So I'm just going to highlight to some of the things that are important for the Secretary of State to do and for the parties to be aware of during that investigation. So um an investigation, it can be conducted by interview or they can request evidence. So it can be that they are making um investigations through correspondence and looking at looking at particular documents as part of the investigation. The interview. It can be conducted in a number of ways. So it can be conducted over the telephone whilst the parties are in detention or one of the parties is in detention as an individual's home. Or it can be conducted in person at home office premises or by video link or um other online methods. Now uh in an interview. Um what the Secretary of State will be doing, issue will be testing the relationship If individuals failed to provide answers to questions that can be regarded as a failure to comply as part of the interview process. She may indeed, in an interview or before an interview as for documents. Any requests for documentation has to be made in writing and it has to be quite specific. So have a look at what the statutory guidance says about requests for documentation. Mhm. In terms of looking at interviews a little bit further, they're supposed to be conducted in normal office hours. So what does that Mean? That means between 96 on a Monday to Friday, those practitioners that are familiar with sham marriage and marriage of convenience cases will know that often interview start before nine a.m. And they finished much later than six p.m. It may well be that there are arguments about whether or not that process has been fair. The Secretary of State is supposed to give three working days written notice of the date, place and time of an interview. If she gives less notice than that, then that there may be issues to raise about that as well. Now, any investigations have to be conducted within that 70 day notice period and indeed she has to make a decision on whether or not the parties have complied with the investigation Within that 70 day notice period say That she gives the party noticed on the 65th day of the time date and place of the interview. It may well be that the parties have commitments. It might be childcare commitments, it might be work commitments. What her statutory guidance says is that there has to be reasonable efforts to accommodate a preferred date and time by the applicants. So if your applicant has good reason for not being able to meet that date and time, then they should say that to the Secretary of State and provide evidence so they might be able to provide evidence from their employers that they said that that says they can't get time off in that in that working day period that's been provided, it might be that there is a pre existing medical appointment that they have or child care issues that it's way too late to obtain childcare for Now. It's also said in the statutory guidance that wherein individuals unable to attend an interview, the investigating officer may be able to re arrange an interview. Now that's in fact what the regulations say. But the statutory guidance goes a little further than that and that says that an investigating officer must accommodate a reasonable request to re arrange an interview where that's possible. Um So again, with evidence, if you can show that there's a reasonable reason for rearranging, um you should request that where they are rearranging. They don't need to give three working days notice. The notice they can give can be far less than that and they will not normally agree to rearrange more than once. But the reason why all of this is important is that sometimes the Home Office really delay actually doing the investigation and it's therefore that the Notice period of 70 days is coming to an end and they have not yet finalized their investigation and been able to make a decision in time in those circumstances. Your party's can't be criticized and you would want to say to the Home Office that they should have in fact written to your party is much sooner in order to carry out the investigation and their failure to do that is not allowing the investigation to be carried out fairly because if they're leaving it so late then it may well be that the parties are unable to make the arrangements. And it also might be that when they make requests for documentation etcetera, It's too late for the 70 day period for them to give your party's sufficient time to actually provide the documentation that is being sought. Okay um Now if an interview is carried out in a home premises they can make observations about anything in the home. So for example they might make observations that there are no family pictures out. All interview should be written down verbatim or there should be an adequate summary of it and that includes any any summary of any observations that they have made. Now if an individual requests a copy of that verbatim written record or the written adequate summary, it has to be provided to them. So it's really important that immediately after the interview there is a request for a written copy of it in accordance with the statutory guidance. Now if that isn't provided, you would want to follow that up very regularly and you would want to explain to them that they must provide the parties with that. The problem with them failing to provide parties with that is that often what that leads to is that it served much later. And by the point that the parties have got it, they can't remember exactly what they have said in that interview. And the difficulties with that is that might mean that they may think I'm not actually said that or I said something different but their recollection of it is now too vague because of the passage of time. So having it very quickly can be really beneficial. Also important to note that they're permitted to have legal advisers in the interview process. And that can be really reassuring from for clients having that presence there. It can also mean that the Home Office behave better during an investigation. And it can also mean that advisors take their own written no. So that we're a verbatim record or an adequate summary comes from the Home Office much later. There's the legal advisers copy to compare it to. They are also permitted to have an interpreter. Now I know that many clients are very Reluctant to have one and the reason for that is that they are worried that there will be issues raised about whether or not they're part them and their partner are speaking the same language. But it can be explained from the outset that the reason that they wish to have an interpreter there is because the stress and anxiety and the sort of complex questions that they're anticipating they're going to be asked. And of course if that is explained, it would be hard for the Home Office to very strongly criticize them. You could also say that they do speak a common language and they're happy to be asked some basic questions, both of them at the start of their interviews to show that they can both speak that common language. Okay, now um I want to highlight something about the conduct of the investigation and that is this written record. So can either be a verbal and written record of the interview or an adequate written submarine. There are concerns with them providing an adequate written summary because what for one individual is adequate might be completely different to what for somebody else's adequate. Um And it it's often the case that the adequate written summary just focuses in my experience on the uh interviewing officers criticisms or where they found inconsistencies. And that obviously isn't fair because sometimes these interviews are very long and they've been asked over 100 questions and focusing simply on inconsistencies. Doesn't show all of the consistencies in the interview and it doesn't show um important parts of the interview and the detail of the sort of questions that they might have been asked. So where you provide being provided with the summary, you might really want to challenge whether or not that summary is actually adequate for for what it's supposed to be showing. Yeah, so the investigation has been concluded and now we move on to the compliance decision. So the whole purpose of the investigation is to determine whether or not there is a sham marriage or a marriage of convenience. But the decision that is made at the at the end of the investigation looks at whether or not the parties have complied with the investigation. If they have been compliant, even if there are doubts as to the relationship, permission to marry may be granted. If they're not compliant, then permission to marry will be refused. Now any decision on compliance, it has to be notified to the parties to the marriage and to the registration official within the 70 day period. Please ensure that you check that that has been done within that period of time because if it hasn't they've made a decision outside of that period and that will mean that simply on that basis alone, it's not a lawful decision and that they can't prevent the marriage on that basis. Now, a decision that the parties have not been compliant. It has to be made by a higher executive officer or an officer at more senior grade. You can ask the question as to whether or not a decision has been made by somebody at that level and you can also obtain a subject access request to check that Now under the regulations in particular, it's the proposed marriage and civil partnership conduct of investigation regulations 2015. Um if the home office consider that a party has failed to comply with the requirement, then what they can do is they can give notice to the party saying that they believe that they failed to comply and explain why they think they failed to comply. And they can give the parties an opportunity to contact the Secretary of State with a view to complying. If in an appropriate case, you think they should have taken that step, then that is something you may be able to raise in a challenge. Ultimately, however, it falls to the parties to show that they have taken every reasonable set to comply with the investigation in looking at a non compliance decision, you are, the Secretary of State has to give reasons as to why the parties have not complied. Now, there's some case or that addresses a reasoning. There's quite a lot of case or that addresses adequate reasoning. But it all says in essence the same thing, the reasons they have to explain to the reader why what has been decided and why that has been decided. So, the reader should come away understanding the decision that has been made against them. The reason should be intelligible, adequate and proper. Um so if you've got something that looks very brief that you're really struggling to understand, there may be a challenge on that basis alone. Now, there can be a reasonable excuse for non compliance. And there's three grounds that are given in statutory statutory guidance for excuses for non compliance. And that includes compelling compassionate reasons. Firstly, secondly, reasons beyond the control of the parties that prevented compliance. And then thirdly, administrative failures by the Home Office. Now, just looking very quickly at reasons beyond the control of the parties that prevented noncompliance. Others, the home office is asking for documentation from 3rd parties. And the difficulty with that is that you're relying on somebody else to provide that information and that can mean um that the documents don't come in the time scales that the Home Office required them to. And of course, that can mean noncompliance, but that's beyond the control of the parties. Now, whilst the decision will be made on compliance, ultimately, they'll also have looked at genuineness. And it's likely that if they think that the marriage or civil partnership is not a genuine one, then separate enforcement action or detention might occur. And indeed, it's also likely that any pending application on the basis of that relationship will be refused on those grounds, and it will generally be any enforcement action or detention that follows that prevents the parties from marrying as opposed to a compliance decision um in those circumstances. Indeed, it can be both that prevent. Okay, so that deals with the marriage referral and investigation scheme. What about investigations outside of the scheme. Now, the statutory guidance that I have referred to there and the Immigration Act 20 14 and the regulations that all addresses cases that are within that scheme. But outside of the scheme, there are still um steps that the Secretary of State needs to take to be acting lawfully and rationally in these cases. Now, there's a number of ways in which a marriage of convenience and sham marriage allegation issue can arise. A number of different types of cases in which it can arise. Um Now, often when people make applications to regularize their status and that can include under Article eight or appendix F. M. The Home Office look at whether or not it's a genuine relationship. Sometimes they receive intelligence about a couple. Um and sometimes they encounter individuals by chance and then that can lead to an investigation in all of these circumstances. There are still steps for them to follow. Now, there's some useful guidance to refer to outside of the scheme to and I'm just going to run you through some of that. So, in in respective genuine relationships, the family policy on partners, divorce and dissolution. Uh that looks at factors that might be associated with genuine relationship and factors that might be associated with a non genuine relationship. And the reason why this is useful is it can help you to try to raise these issues with applicants and also it can alert you to the fact that your case might be one that might fall into being considered as non genuine. And it can make you address these issues from the outset, it can also help you challenge these decisions where sometimes they don't make sense because the sort of factors that are associated with a genuine relationship actually exist in your case. So what it says, for example, is that being in a long term relationship or a cohabiting relationship having Children and that step Children, adopted Children, biological Children and sharing responsibility for them. Those are factors that are associated with a genuine relationship. So we're sharing financial responsibilities, such as joint accounts, utility bills in joint names having visited each other's countries or families. Now it's rare to see a case in which they visited each other's countries, but they may well have met each other's families or particular family members at some point. And it can be worth referring to that if that has occurred in terms of factors associated with a non genuine relationship, not speaking a common language, not being able to provide enough information about living arrangements, having no or very few family or friends or guests at a wedding or a reception. Um, and then it also talks about factors such as immigration history and previous applications. Now, um, significantly in this guidance, it says some useful things about arranged marriages and cultural considerations. So it accepts, for example, that in some cultures, marriage is a first step to a lifelong commitment as opposed to affirmation of a pre existing relationship. And it can be useful to refer the home of this too. That if there are cultural considerations such as that that they should be having regard to. Um It also says that in some cultures it's normal for documentation to be addressed to the male head of the household. And so if there's no documentation to a particular party, uh that might be a reason for it and it can be useful to refer the home office to that. Right, okay. Now I just I also want you to um if you've got an e a case um consider the free movement rights, direct family members. Ea nationals guidance. Now, what that says is that they apply fourth stage test in looking at whether or not there is a bit to carry out an interview um to assess whether or not we've got a sham marriage or a marriage of convenience. Um Now, the first step is, are there any factors that indicate that it is one of convenience? Now, those are the sort of risk factors that I think that we spoke about in the statutory guidance, that's the sort of thing that they will be looking at and what that means is that it will lead to further inspection in the case the second step. They look at whether there are any factors that would make it difficult to show whether the relationship is one of convenience and that's things such as Children, long term cohabitation. Um and if those factors exist, then they refer the case to a senior caseworker. And the 3rd step is then to refer to that senior caseworker who will make a decision as to whether or not a marriage interview will be carried out. And then finally, a caseworker is to make a decision on whether or not it's a sham marriage or marriage of convenience. Um And whether or not it's a marriage of convenience following the interview. Now, once against this guidance are some useful things about the investigation process of the interview that it's supposed to be a process in which they consider the factors which lead to suspicions that they weigh that against documentary evidence. That inconsistencies have to be looked at against consistencies that they must have regard to whether or not it's an arranged relationship, whether there are religious customs or traditions to have regard to. Um So useful to refer to If you consider that there hasn't been a fair approach and the decision making hasn't been in accordance with the policy guidance. Yeah. So now let's go on and have a look at the marriage investigation guidance. Now, the marriage investigation guidance is a really useful document to refer to for investigations outside of the scheme. It talks about again what must occur in interviews. It talks about looking at the understanding and complicity of each party, that the parties have to be given an opportunity to provide explanations on credibility points. So it's not the case that there is an inconsistency and the Home Office just leave that they're supposed to raise their so that there's a fair opportunity for the individual to provide a response to it. Um It says that questions should have regard to cultural issues. Um that questions should not be intrusive, and that includes not asking questions. For example, about sex life. Now, there was a case in which there was a challenge to questioning on sex Life and that's the case of eight rubber. Now, unfortunately that was a challenge that failed because what the court said was that it was perfectly permissible for the Secretary of State to simply ask the question as to whether or not there was such a relationship and that in itself wasn't too intrusive but have a look at the questioning and see whether it goes further than that because there can be challenges if it does become intrusive. Now it also says that there are local lists of pre prepared marriage interview questions, but that questioning has to be tailored to the answers. Now, often what you see is that it appears that a script is being followed and that there isn't much divergence from that. If that occurs, then you will be able to say, well the questioning hasn't been tailored to the answers and you may also be able to refer to cases such as Anjum and mapper to say that it's not a fair process that there's been a deer inst to an inflexible approach to an interview. Map is also quite good on interviews generally. Um It talk it's an asylum decision and it looks at asylum interviews but it talks about how there can be no no notes can ever be completely verboten um um That if there is a digital recording then it removes the layer of protection. It talks about how um issues of translation can occur with interpreters. So there's lots in there that's useful to try to argue that an interview may not be completely reliable. For example. Now a very good way to ensure um that you've got you've got a record of the interview that's reliable is to seek a digital recording of it. And um this policy guidance that that digital recordings of interviews can take place alongside written records. So you should most certainly be requesting that in your cases and indeed I see no reason why you wouldn't request that in cases inside the referral scheme to. Okay and then finally I want to just touch on the enforcement visits guidance. Um Now that's useful on looking at visits to a residential address. Now it makes clear that unannounced visits to a residential address, they cannot be made under the referral scheme. And so they can't just turn up but in other cases there can be inquiries made. A residential address. However there's a number of procedures that have to be complied with. So there should always be two officers. Um It says that officers should always be courteous, respect diversity. And significantly they should never be alone with a suspected immigration offender. They can invite a third party to provide corroborative evidence but they cannot volunteer information about the suspect. So they often get um they often mention 3rd parties such as neighbors or other tenants um in their notes and you might want to raise questions about how they got information from that individual because they certainly shouldn't be volunteering information about the applicant to them. There should be at least two attempts to visit. Um And that's very rare to see. Often there's just one visit and again there has to be a written record of the interview And um in terms of looking at reasonable grounds to suspect it can include the context in which the person was encountered, their behavior or their responses. So if somebody tries to run away then obviously that might be reasonable grounds to suspect. But a really very useful document where there are visits to residential premises. Okay so just very quickly we're going to touch upon sham marriage enforcement actions and offenses. Um So it all depends on whether we have got a case that is a non E. A non E. U. S. S. Case or whether it's an E. A. U. S. S. Case. If it's a non E. A. U. S. S. Case then what the actions that can be taken is a refusal of an application. They can curtail existing leave and make a simultaneous removal decision. If somebody doesn't have leave then they can take removal action. In an E. U. S. S. Case they can make an enforcement decision and they can refuse any pending application. Now in terms of the tests that apply um um If they are making an enforcement decision against an E. A. National or any a national family member, If the conduct if the sham marriage or marriage of convenience conduct occurred before 31 December 2020. Um then we are looking at the test that apply under the under a law so that's public policy grounds and it all looks at whether or not there's a genuine present and sufficiently serious threat. Um And it's much harder for the Secretary of State to make out those tests And it also depends on length of residents. If we are looking at conduct that's occurred post 31 December, then we're looking at conducive grounds and those are the tests that apply for Article eight deportation. And those are much easier for the Secretary of State, much harder for applicants to make out in terms of whether or not there can be offenses and prosecutions. Of course there can be. I've set out on this like the sort of offenses that you can see for a sham marriage type offense. So obtaining or seeking to obtain leave to enter or remain by deception assisting unlawful immigration, um conspiracy to facilitate deception. Bigamy perjury, mm. So we've been through quite a lot of material already, but I'm not yet done. There's still a little bit more for us to go through. I'm just going to touch upon some of the authorities to help you in these challenges. Um So burden of proof and standard of proof. Um there's a number of cases that have established that the burden of proof in a sham marriage marriage of convenience, allegation is on the Secretary of State, and only if there is evidence that's capable of pointing to such a conclusion, Does the burden switch to the applicant to show that there's is not a marriage of convenience. If the if she hasn't discharged the burden upon her the Secretary of State, then that allegation is simply not made out. Now, in terms of the standard of proof, it's the balance of probabilities and it's useful to consider what Papa Georgie said. Um in 2012, in the upper tribunal, the question is in light of the totality of the information before me, including the assessment of the claimants answers and any information provided. Am I satisfied that it is more probable than not that this is a marriage of convenience. Okay, so um some useful authorities in looking at the party's intentions. Um So Rosa makes clear that in a marriage of convenience sham marriage case, we're looking at the intentions of the parties at the point at which they entered the marriage. So we're not looking at it years later and it's important to remember that in any case um a part the parties may have separated but if they're not divorced they remain family members. And um it can be useful to remind the Secretary of State of that because of course intentions change over time, relationships change. But that isn't a reflection of the intentions at the point that they entered the marriage, useful cases on investigations and evidence. Sadowski makes clear that it's important to consider the circumstances of the investigation in that case. What occurred was that the parties were stopped at there at the registry office by officers who were carrying batons and handcuffs. They were frightened. They agreed to be interviewed in english but neither was fluent. They had no time to contact a solicitor for advice to obtain an interpreter or to provide evidence and contact witnesses. And um it was said by the Supreme Court that the circumstances of their interview was a relevant consideration in Argo. Um that looked at the evidence that has been gathered and it's a useful case to refer to when you're looking at poor quality evidence from the Secretary of State. So often what the Secretary of State does is she provides a short note from an officer on what happened when they attended a premises. And in this case, that's exactly what she did. And the officer said he attended at 7:30, couldn't meet with the parties. Uh he spoke to a female visitor at the premises who denied knowledge of other occupants. Um he left a note saying he would be reporting the premises to the local authority for multi occupancy. And then the next day the managing agents advised him that they knew no one by the name of Colin orcas o as tenants. And it was that note entirely that was handed up on the day of the hearing and relied on by the Secretary of State to make out a marriage of convenience. And what the court said Was that there was nothing unusual about individuals not being home at 7:30. The lady who had been spoken to was simply a visitor. The note was full of obscurities. It wasn't clear what the officer had said or what communications followed that and it was late disclosed secondhand and confused evidence and it wasn't sufficient for a serious marriage of convenience finding. Mhm. Okay. Now, finally, um in looking at case law, I want to look at the consequences of a sham marriage allegation or sham marriage finding or a marriage of convenience finding. Now what was said inside Oscar was that it's one thing to find that the marriage or civil partnership is one of convenience. Um And it might be right to prevent it if that's the case. But it's quite another thing to find that expelling, um, particularly in that case the a national from the country where she had lived and worked for so long and had other family members was a proportionate response to that. So it's not simply a case that, well, here's a finding of marriage of convenience. They have to look at the individual's life in the UK and consider whether the decision any decision to remove its proportionate and the same applies under article A as was said in Ayacko. The ultimate question is how a fair balance should be struck between the competing public and individual interest applying a proportionality test. And that would mean looking at other family members, any Children, private life, any health issues, anything relevant to an individual's family and private life. Now, what I have done at the end is all of the material that I have referred to. The policy guidance, the statutory guidance, um, and the regulations and the Immigration Act. I've provided hyperlinks to it. And I've also provided a link to a website at which you can purchase my book where I go into marriage allegations and challenging these allegations in a lot more detail than I have in this session. Um, and it it's a case. It's a book in which there is a lot of detail and hopefully would provide you with solid grounds to bring challenges in these cases, but I hope that you have found this session useful and thank you so much for taking the time to listen. This is a session for data law on the complexities of challenging sham marriage allegations in immigration law, and I'm pretty Solanki, a barrister at one point court changes in London. Thank you for your time.
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