What is a marriage of convenience and whether one is, or is not, and its current EU definition, are huge problems in UK and EU-wide immigration. The UK immigration law always went with “sham marriage” – one contracted as a facade where no real relationship is present. However, the EU definition of “marriage of convenience”, even though some experts think that it was initially meant to define the same (but suffered from mis-translation and bad judicial interpretations), is much more complicated. So much so, that it is, in my view, administratively, judicially and – importantly for lawyers – ethically unworkable.
The rule is not that marriage of convenience is one where there is effectively no marriage, e.g. spouses do not cohabit as spouses and only meant the union as, well, a sham. The rule is, that marriage of convenience is one contracted for the primary purpose of deriving an immigration benefit. On that theory – and Home Office uses it often – a marriage can be one of convenience for immigration purposes, even when the sponsoring spouse has entered into it in good faith and believed it to be real. Such a marriage it is not otherwise a sham and would be legally valid for purposes of other areas of the law, including family law and property. It is a legally valid marriage and may even have children born into it. But apparently it would be invalid for EU immigration purposes, if the reason for the choice of partner for at least one of the contracting spouses was an ability to move to the UK as a result.
This leads to a multitude of workability problems, of course. The chief and well aired one is – that how can you tell, especially, as the case often is, some years later? Marriage of convenience has been, for years, barely a bad word, and reality of such marriages in all other walks of life has been accepted. Young and beautiful always married old and rich, royals married for diplomatic purposes, people in India enter arranged marriages for purposes of culture and religion (which our law recognises with open arms, requiring only that the couple have “met in person”).
Americans and Brits who have lived and worked in countries such as Russia often carried with them an aura of intrigue, enlightenment and something new, and often entered into marriages with local women and lived for years overseas with them, but yet, the nationality of the husband was so integral a part of their personality there and then that it is difficult to discount it as a factor. However, the same expatriate Brit who may be working for BP in provincial Russia somewhere or Kazakhstan, would be also educated and wealthy compared to local selection of men, and appear courteous and charming because he has been raised in a different dating culture – so, how do we know what exactly played a role then? Do mail-in-brides who just want to get out of their town necessarily contract marriages for purpose of immigration, to a country they have never seen, or do they just want adventure and something new? These are questions which simply cannot be uniformly resolved.
Any immigration lawyer has had more than enough of cases where sponsoring spouse, once the relationship goes sour, immediately rings or writes to the Home office and says “I am certain she only married me for immigration, deport her immediately”. I write “her” because it is mostly men that do it (but you will see in this post – not always). But if that person is British, so long as the relationship has been genuine at one point – to which effect they, the sponsor, often would have sworn themselves – the inner motives are irrelevant. It is not a sham.
Either way, HO is skeptical of such statements, usually made in attempt to gain advantage in custody or property division during divorce. That scepticism extends to EU cases. When genuine nature of the marriage has not been in doubt previously or there are children of the marriage, such reports are brushed off as rants. EU law of Free Movement (unlike UK immigration law) extends protection to separated spouse (Diatta v Land Berlin) so long as the marriage was … not one of convenience in the first place. But even then, no one really knows what that means, so my advice has always been – a claim of marriage of convenience against a spouse of some years if she is the mother of your child, will fail. Notwithstanding that I think we can legitimately doubt that all of these marriages are based on true love, as I elaborated on here.
My practice always focused on women. I literally represented, I think, a total of less than 10 men sponsored by female partners, and in most of those cases it was the sponsoring wife who was the force behind the case. One of them was an EEA case that was also one of my most famous, long running cases that span over 4 years and involved, principally, a fight against an accusation of sham marriage, sponsored mainly by the sponsoring wife, an EU citizen. They had lost an appeal in 2014, before they came to me – they were represented at the time by a well known Russian-speaking adviser of Ukrainian origin. When I received the file, I had zero experienec with sham marriages or any marriages.
I was angry at how the previous lawyer clearly appeared to disbelieve the couple himself and how his representation was, in my view, half-hearted. I fought for this family for years. I immersed myself in their lives. We won. The husband received a residence card in summer of 2018, after almost 6 years of marriage, along with monetary compensation for HO harassment. Numerous high level officials were by then involved in the case. He then received a permanent residence card just in February this year, after I have written to many high level officials warning them against taking up a new fight with us on this. I have entirely put myself on the line for this case.
I must say, I noticed a change of tone in the husband, an Indian national, immediately after he got his residence card. He had written to me asking that I communicate with him, not the wife – a red flag, maybe, seeing as she and I are both Russian-speaking and have friends in common, and he speaks basic English and none of Russian. Yet I persevered, and I continued to visit their home and knew that the marriage was real. well, turns out, not that simple – because I knew all that from HER perspective.
It was only last week that she contacted me, completely distraught. She was looking for some papers and found a marriage certificate. For her husband. To whom she is married and with whom she still lived. In India. From last summer. That is right. The MOMENT he was issued with a residence card, he went to India and married a completely different woman there, in an arranged marriage at the urging of his family in India, who apparently see his non-Indian UK-based wife as a non-entity. It will help with the context that he has been in the UK overall since God knows when, having entered illegally something like 15 years ago, and has known his current wife since 2011, eg for 8 years.
Now the question – how are we now to evaluate this marriage based on this new information? She says, she can see clearly now that this was only a marriage of convenience FOR HIM. If there was ever a case of a duped sponsor, really, this will be an extreme case. I am no relationship expert- I am a confirmed lesbian bachelorette. But all of this came as a shock to me on a human level. I do not, to be honest, know what to say to all this.
The thing is, this is not the only case of sponsor remourse that has been brought to me in the recent months.
Another sponsor, a British woman of Ukrainian origin, whose husband was a failed asylum seeker from Russia who has lived illegally in the UK for 10+ years before marrying her, and then took another 5 years before attempting to regularise status, at the end of which we flew him to Moscow to apply for spouse visa, which he received. The wife had messaged me repeatedly over the least year, saying that he changed suddenly immediately after he came back, that he became estranged, started to go missing from the marital home or eventually left her and lived by himself somewhere and she took time to find him and tried to bring him back, still ion love, and I think he eventually went off to Russia.
Both of the above were among my celebrated, signature cases featured on this blog and in the publicity for my practice heavily. Now it all comes crumbling down. I am not bothered that someone will be able to identify who these people are, because both women, understandably scorned, sought my advice specifically on exposing the husbands and revoking their sponsorship in some way. I am, in turn, not convinced of any legal effect of the revelations in the former case at all, nor that it will rise to invalidate the marriage retroactively after all these years of struggle for exactly the opposite. While despicable, it would be very hard to prove or deduce that the intention to marry someone else and hide this fact from your legal English wife once you get the residence card in 2018, was there in 2012. But the marriage did happen too fast for it to be a result of intoxication with the new found freedom.
In the latter case, which is not an EU case, the disenfranchisement will occur automatically at what would be extension stage, that will be impossible without the sponsor participation and would be due about now. Last I heard, the husband was in Russia – just as I predicted three years ago, he was, ultimately fascinated by how today’s Russia was different to one he fled in 1999. I could tell right away, and tried to warn her, that I thought his psychological state was altered and his story in many ways made no sense. She would have none of it three years ago. She said years among the Brits have worn her down. He was “one of ours”, she said.
I am sure, however, that his intentions towards his wife, with whom he is of the same culture and they speak the same language, were genuine. Scorned as she may be, I think it is the new found freedom – including freedom of travel – that had gone to his head, and discredited the entire system of values formed during years of illegal status, which, he must now understand, were pointlessly lost years of his life.
But where does the knowledge of these cases leave any immigration lawyer when the next one like this comes through the door? Should all of those who contemplate marriage-based immigration, or sponsorship thereof, be saved from themselves? Especially considering that sponsored women in many such marriages often fare even worse.