A sham marriage based on a flawed premise; Theresa McCormack and Zira Hussain, of St Philips, report on balancing human rights and the increase in sham marriages.
Both parties agree to marry in order for the non-EU national to obtain long term residency in the UK, the right to work and to claim benefits. However, the assumption that marriage provides the non-EU national with an automatic right to remain in UK is flawed. The UK Border Agency has the final say on this matter and its investigations can be protracted.
The EU national is often paid a large sum of money for marrying the non-EU citizen. Payments of up to pounds 4,500 were identified during a criminal prosecution in 2010. The upshot is that many sham marriage rackets have formed in the UK in recent years. The racketeers have not only profited from the demand, they have fuelled it.
How are sham marriages identified? The UK's registrars are often the first to identify sham marriages. Registrars have a duty to report suspected sham marriages to the UK Border Agency.
Marriage participants provide a variety of clues, which indicate that their reasons for entering into marriage are not legitimate. Registrars have provided stark examples of occasions when they have been invited to marry couples that do not speak the same language and, therefore, cannot verbally communicate with each other.
Registrars reported 3,578 suspected sham marriages in 2004. When the Government implemented the Certificate of Approval Scheme in 2005, this number fell to 452.
The scheme required non-EU nationals to obtain a Certificate of Approval from the Home Office, granting permission to marry a EU national in the UK. While the scheme was very successful in decreasing the number of sham marriages, certain couples asserted that it breached their human rights. In July 2008, the Law Lords concluded that it was "arbitrary and unjust" and incompatible with article 14 of the European Convention of Human Rights (the prohibition of discrimination). As a result, the scheme was abolished on May 9, 2011. Since the declaration of incompatibility in 2008, there has been an increase in the number of suspected sham marriages. Consequently, the responsibility for vetting intended spouses has, once again, fallen at the door of the clergy and registrars.
In order to address this, the Home Office's Border Agency has established a specialist Immigration Crime Team to work with registrars and the clergy. In addition, The Church of England, in conjunction with the Border Agency, has provided new written guidance to the clergy.
The future On June 9, 2011, EU justice ministers, including the Home Secretary, met in Luxembourg to discuss prospective legislation. It is clear that a statutory system needs to be implemented.
It is also clear that the system must recognise and respect the parties' human rights, however, it must also provide the checks and balances necessary to act as an effective deterrent to those who intend to participate in a sham marriage.
The writers hope that any prospective legislation will provide an effective remedy to this escalating problem.
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|Publication:||The Birmingham Post (England)|
|Date:||Jun 30, 2011|
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