The Concept of Marriages of Convenience in EU Free Movement Law

Aleksandra Ancite-Jepifánova, Ph.D., is an interdisciplinary scholar working in the field of European and comparative migration, asylum and nationality law and policies. She received her doctorate in law (2021) from Queen Mary University of London.

Acknowledgements


List of Tables


Abbreviations


Introduction

1 Setting the Scene: Marriages of Convenience and EU Citizens’ Right to Family Reunion


2 Limitations


3 Sources


4 Terminology

 4.1 ‘Marriages of Convenience’


 4.2 ‘Citizen’ v ‘National’


 4.3 ‘Family Reunion’ v ‘Family Reunification’




5 Chapter Outline




Part 1

EU and European Human Rights Law

1 Right to Family Reunion in EU Free Movement Law

1 Introduction


2 From ‘Market Citizen’ to Union Citizen: Evolution of the Concepts of Free Movement of Persons and EU Citizenship

 2.1 On the Way towards the Citizenship Directive


 2.2 Citizenship Directive




3 Right to Family Reunion under the Citizenship Directive

 3.1 Rights of Family Members as Derivative Rights


 3.2 Who Is Considered a Family Member?


 3.3 Married Couples as a Privileged Group




4 Derogations from Free Movement Rights

 4.1 Public Policy, Public Security and Public Health


 4.2 Abuse of Rights




5 Conclusion




2 Right to Family Reunion as a Source of Tension between the cjeu and Member States

1 Introduction


2 Treating Nationals Worse than Foreigners: The Phenomenon of Reverse Discrimination


3 The Substance of Marriage


4 Returning Member State Nationals


5 EU Citizens Forming Families in the Host Member State


6 Visas for Non-EU Family Members Travelling to the UK


7 Family Reunion Cases Outside the Scope of the Citizenship Directive

 7.1 Different Forms of Free Movement


 7.2 Static EU Citizens




8 Marriages of Convenience as the Only Form of Abuse of Rights?


9 Conclusion




3 After Metock: Marriages of Convenience as an Apple of Discord between the EU and Member States

1 Introduction


2 All You Need Is Love? The Controversial Notion of Marriages of Convenience


3 The Judgment in Metock: Opening a Pandora’s Box


4 Exploitation of the Vulnerable? EU-8 Nationals in Focus


5 UK and Three Other Member States Demanding Change


6 Pre-referendum Settlement: An Unprecedented Concession to the UK


7 Conclusion




4 Europeanisation of Relationship Standards? Marriages of Convenience in EU Soft Law

1 Introduction


2 EU Soft Law in a Nutshell

 2.1 The Concept of European Soft Law


 2.2 General Rule: No Derogation from Hard Law


 2.3 Legal Effects of EU Soft Law at the National Level




3 EU Soft Law on Marriages of Convenience

 3.1 Commission Guidelines and Handbook as Interpretative Tools


 3.2 Definition of Marriages of Convenience: The ‘Sole Purpose’ Test


 3.3 Relationship between the ‘Sole Purpose’ Test and the cjeu Case Law


 3.4 Investigation of Marriages: Limitations and Procedural Safeguards


 3.5 ‘Operational’ Measures




4 Conclusion




5 The Concept of Marriages of Convenience and European Human Rights Law

1 Introduction


2 Articles 12 and 8 of the echr in a Nutshell

 2.1 The Right to Marry and to Found a Family


 2.2 The Right to Respect for Private and Family Life




3 Articles 8 and 12 of the echr and Immigration Control


4 The Legality of Targeting Marriages of Convenience for Immigration Purposes

 4.1 Marriages of Convenience in ECtHR Case Law


 4.2 Methods of Investigation and Human Dignity




5 ECtHR Case Law on Marriages of Convenience vs EU Free Movement Law


6 Conclusion




Part 2

UK Law

6 Historical Development of Family Reunification Provisions in UK Law

1 Introduction


2 1948–1977: The End of Free Movement for Commonwealth Nationals


3 The ‘Primary Purpose Rule’ (1977–1997)


4 After the ‘Primary Purpose Rule’: Focus on Pre-wedding Controls


5 Certificate of Approval Scheme: Tarring Everyone with the Same Brush


6 The Blame Misplaced: Citizenship Directive as a ‘Loophole’


7 Conclusion




7 Marriage Controls during the Pre-Brexit Period

1 Introduction


2 Pre-marriage Controls: ‘Referral and Investigation Scheme’

 2.1 Immigration Act 2014: ‘Sham Marriages’ and ‘Compliant Environment’


 2.2 Definition of a ‘Sham Marriage’


 2.3 Compliance with an Investigation


 2.4 Implications of Giving a Marriage Notice in the UK


 2.5 Interplay between the ‘Referral and Investigation Scheme’ and EU Law




3 Post-marriage Controls

 3.1 Procedures for Family Reunion with EU Citizens in the UK


 3.2 The Concept of Marriages of Convenience in the eea Regulations


 3.3 Application for an eea Family Permit


 3.4 Application for an eea Residence Card


 3.5 Non-suspensive Appeal Rights


 3.6 Deporting EU Citizen Spouses: Public Policy Test


 3.7 Marriages of Convenience and UK Family Law




4 Conclusion




8 Marriage Controls after Brexit

1 Introduction


2 Position of EU Citizens in the UK after Brexit


3 Family Members of EU Citizens in the UK


4 Marriages of Convenience Post-Brexit

 4.1 Pre-marriage Controls


 4.2 Post-marriage Controls


 4.3 Procedures Following a Marriage of Convenience Determination




5 Conclusion




9 Assessing the Nature of Marriage: Conduct of Investigation

1 Introduction


2 ‘Risk Profiles’ and Marriages Perceived as ‘Suspicious’


3 Interview Questions: Focus on Discrepancies and Cohabitation


4 Hostile Interviewing Style


5 Cases Involving Pregnancy or Childbirth


6 Home Visits


7 Conclusion




10 Legitimising the Illegitimate: Marriages of Convenience and the UK Judiciary

1 Introduction


2 Burden of Proof

 2.1 Evidential Burden




3 Focus on Cohabitation and/or Present State of the Relationship


4 Definition of Marriages of Convenience

 4.1 Literal Interpretation of the Definition




5 Cases Involving Pregnancy or Childbirth


6 Conclusion




 Conclusion




Annexes



Annex 1


Annex 2


Annex 3


Bibliography


Index