Joe Plowright of the immigration team and chambers’ pupil, Ricky Powell publish article for ILPA

News

Joe Plowright of chambers’ immigration team together with chambers’ pupil, Ricky Powell, have written an article providing an analysis of the High Court judgment of Molina v Secretary State for the Home Department [2017] EWHC 1730.

The article was published by ILPA and can be viewed in full here – at p.9 for ILPA members of the European update published in December 2017.  A full copy of the article can be found below.

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Molina v Secretary State for the Home Department [2017] EWHC 1730 – Joseph Plowright Barrister, Goldsmiths Chambers and Ricky Powell, Pupil Barrister, Goldsmiths Chambers, October 2017.

Introduction

The decision in Molina is one the latest addressing the legal issues surrounding ‘marriages of convenience’. However, the focus in this case differs from preceding case law which is largely focused on where the burden of proof lies when a marriage of convenience is alleged.

The case of Molina focused in on the distinction between ‘marriages of convenience’ and ‘sham marriages’, and the lawfulness of both investigating and preventing them. The case of Molina offers a firm view in terms of the legal distinction between the two phrases.

Factual Background

The claim was brought by a Bolivian national who entered the UK in April 2007 using a false passport. He met an Italian national in April 2013, began a relationship with her in October 2013 and, it was claimed, moved in with her in September 2014.

The couple arranged to be married on 19 May 2015 but, further to a report of a suspicious marriage being made by Lambeth Register Office under s.24 of the Immigration Act 1999 (“IA 1999”), they were approached on that date by Immigration Officers and subsequently interviewed.

The result of the interview was that a notice IS.126 was served on the claimant in which the Immigration Officer stated that ‘although there is a relationship going on it does not show that they have a relationship akin to marriage’1. The notice concluded that the marriage would ‘definitely’ be a marriage of convenience to gain an immigration advantage. The marriage was prevented and the claimant was detained.

Lawfulness of preventing the Claimant’s Marriage

The lawfulness of the decision to prevent the claimant’s marriage had two elements to it:

(a) The legality of preventing the marriage by carrying out interviews conducted on the basis of the report form made under s.24 IA 1999.

(b) Preventing the marriage after concluding that the proposed marriage was a ‘marriage of convenience’.

(a) The Legality of Preventing the Marriage by carrying out interviews

At paragraph 48 of his judgment, Judge Grubb accepted that the SSHD had reasonable grounds for suspecting that the proposed marriage was a sham based on the report from the Lambeth Register Office.

At paragraph 52 of his judgment, Judge Grubb states that the process of investigation is sufficient to justify preventing a marriage with an EU national in order to investigate whether it is a marriage of convenience.

At paragraph 54 of his judgment Judge Grubb quotes Lord Bingham in the case of (Baiai v SSHD) [2009] 1 AC 287 where he stated the following:

“22… A national authority may properly impose reasonable conditions on the right of a third-country national to marry in order to ascertain whether a proposed marriage is one of convenience and, if it is, prevent it. This is because Article 12 exists to protect the right to enter into a genuine marriage, not to grant a right to secure an adventitious advantage by going through a form of marriage for ulterior reasons.”

Judge Grubb then states at paragraph 55 of his judgment that there was no breach of Article 12.

(b) The Legality of concluding the proposed marriage was a marriage of convenience

In granting permission, Michael Fordham QC (sitting as a Deputy High Court Judge) stated that it was arguable that the decision to “impede” the claimant’s marriage and thereafter to detain him had been premised on a mistaken understanding that there is a difference between a “sham marriage” and a “marriage of convenience” which were, in truth, synonymous (see paragraph 21 of Molina (I note the use of the word “impede” rather than “prevent” which may suggest that the prevention of the marriage was more a consequence of the practicalities of the investigation rather than a lawful prevention).

At paragraph 59, Judge Grubb notes that under s.24(5) of the Immigration Act 1999 ‘sham marriages’ are given a statutory definition and require that there is no “genuine relationship between the parties to the marriage”.

He noted that section 24 of the Immigration Act does not give a statutory definition for a marriage of convenience but notes that regulation 2(1) of the EEA Regulations 2016 defines a ‘marriage of convenience’ as:

“a marriage entered into for the purpose of using these Regulations, or any other right conferred by the EU Treaties, as a means to circumvent –

(a) Immigration Rules applying to non-EEA nationals (such as an applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom); or

(b) Any other criteria that the party to the marriage of convenience will otherwise have to meet in order to enjoy a right to reside under these Regulations or the EU Treaties;

Judge Grubb found that there is a difference in principle between a marriage of convenience and a sham marriage. He stated:

‘a “marriage of convenience” may exist despite the fact that there is a genuine relationship and in the absence of any deception or fraud as to its existence. The focus is upon the intention of one or more of the parties and, in the present context, whether the sole aim is to gain an immigration advantage.’

Judge Grubb concluded that the Immigration Officer had shown that she was aware of the distinction because she stated that the couple had “a relationship going on”, but that it was not one akin to marriage. She was satisfied that serving a notice on the claimant was necessary because the couple proposed to enter the marriage for an immigration advantage which is consistent with the legal definition of a “marriage of convenience”.

Burden of proof

The case of Molina devoted one sentence to the burden of proof and stated emphatically that the case law ‘clearly establishes that the burden of proof is upon the Secretary of State to establish [a marriage of convenience] on a balance of probability’.

Previous Cases

In Agho v SSHD, it was said that a marriage of convenience is one ‘entered into without the intention of matrimonial cohabitation and for the primary purpose of securing admission to the country’. The phrase “genuine marriage” was used as the antonym of “marriage of convenience” in this case.

Rosa v SSHD stated that whether or not a marriage is ‘genuine and subsisting’ is not relevant to defining marriages of convenience. The Court in Rosa found that the focus in relation to a marriage of convenience should be on the intention of the parties at the time the marriage was entered into. However, it was noted that evidence relating to the relationship after the marriage has occurred is capable of casting light on the intention of the parties at the time of the marriage.

The most recent and authoritative case on the issue, which was heard after Molina, is Sadovska v SSHD. The Supreme Court relied on the European Commission’s Handbook dated 26 September 2014, in defining a marriage of convenience. It states that a marriage of convenience is a marriage contracted for the sole (meaning the predominant, and not the exclusive) purpose of enjoying the right of free movement and residence under Directive 2004/38/EC. It stresses that a marriage cannot be considered a marriage of convenience simply because it brings an immigration advantage.

The Referral and Investigation System

A question that has arisen as a consequence of the decision in Molina is what this decision could mean in relation to the referral and investigation system given that the decision seemed to state that it was acceptable to investigate and prevent the marriage based on the finding that it was a marriage of convenience.

Firstly, it was decided in Molina that the investigation and subsequent action of preventing the marriage was lawful, in that it did not breach Article 12, because the report disclosed reasonable grounds for suspecting that the proposed marriage was a ‘sham marriage’ (it stated that Mr Molina had ‘no visa’). This suspicion engaged the initial investigation process.

Further, in relation to marriages of convenience, the Court made reference to paragraph 3 of Council Resolution 12337/27 which permits states to check whether a marriage is one of convenience before issuing residence permits under EU law:

“Where there are factors which support suspicions for believing that a marriage is one of convenience, Member States shall issue a residence permit or an authority to reside to the third country national on the basis of the marriage only after the authorities competent under national law have checked that the marriage is not one of convenience, and that the other conditions relating to entry and residence have been fulfilled. Such checking may involve a separate interview with each of the two spouses.”

At paragraph 52 of the judgment in Molina, the Court held that paragraph 3 of the resolution is ‘consistent with… a process justifiably preventing a marriage with an EU national in order to investigate a marriage of convenience’.

The referral process is one which begins by investigating a ‘sham marriage’ based on a reasonable suspicion that the marriage is for the purpose of avoiding immigration rules or obtaining rights to reside conferred by those laws and, importantly, that there is no genuine relationship between the parties to the marriage. However, the investigation will then proceed even where a ‘genuine relationship’ is apparent in order to ascertain whether it will be a ‘marriage of convenience’.

At a practical level, it seems that likely that the investigation process is likely to prevent the marriage because one would assume that the time the process takes would mean that a person will probably miss their time slot for marriage at the Register Office. If one or both parties are detained, then there will be no possibility of the marriage taking place.

At a more fundamental level though, the question is whether or not there is lawful authority to prevent the marriage and it seems that Judge Grubb, at paragraph 54, relied heavily upon Lord Bingham’s judgment in Baiai v SSHD [2009] 1 AC 287 to support his finding that there was lawful authority to prevent the marriage taking place:

“22… A national authority may properly impose reasonable conditions on the right of a third-country national to marry in order to ascertain whether a proposed marriage is one of convenience and, if it is, prevent it. This is because Article 12 exists to protect the right to enter into a genuine marriage, not to grant a right to secure an adventitious advantage by going through a form of marriage for ulterior reasons.”

In the case of Baiai v SSHD [2009] 1 AC 287, it was ultimately found that certificates of approval were not reasonable because they imposed a blanket prohibition on the right to marry.

However, where there is a reasonable suspicion that a “sham marriage” is going to take place, it will be proportionate for an investigation to take place and for the marriage to be prevented if the SSHD is satisfied that the marriage will be a marriage of convenience.