The High Court Agrees that a genuine couple can enter a marriage of convenience

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The summary of a High Court case of Molina, R (On the Application Of) v The Secretary of State for the Home Department [2017] EWHC 1730 (Admin) has stated that a genuine couple can enter into a “marriage of convenience”.

The background of this case concerned Mr Molina a Bolivian national. He came to the UK illegally in 2007 using a fake passport.

In around 2013 he has met an Italian national, Ms Salguero and they entered into a relationship in October 2013. The moved in together in September 2014 and planned to get married on 19 May 2015.

On 26 February, the Lambeth Register Office sent a report to the Home Office flagging them that there might be an illegal individual. The Home Office officers attended the couple’s marriage on 19 May, where they were interviewed separately. After the interview Mr Molina was served with a notice IS.216 which stated: “although there is a relationship going on it does not show that they have a relationship akin to marriage. [The claimant] will benefit from his union with [Ms Salguero] even though this may not be a sham marriage it is definitely a marriage of convenience to gain immigration advantage.

Hence, the marriage did not take place and Mr Moliva was detained and served a notice of removal, which was later set for 5 June 2015. He was eventually released on 24 June 2015.

The claimant argued at the time that this was a violation of Article 12 ECHR (the right to marry). Judge Grubb of the High Court dismissed this argument relying on paragraph 22 of the precedent case R (Baiai) v SSHD [2009] 1AC. Judge Grubb argued, that since the Secretary of State had a legitimate reason to suspect that this marriage was a sham, the investigation and prevention of this marriage did not breach article 12.

The second challenge made by the applicant was that he had a genuine and subsisting relationship with Ms Salguero and therefore no lawful justification existed to prevent this marriage. In other words, he has argued that since the relationship is genuine a marriage of convenience, like a sham marriage, cannot exist if there is a genuine relationship.

The court disagreed by highlighting the difference between a “marriage of convenience” and a “sham marriage”.

As defined in Section 24(5) of the Immigration and Asylum Act 1999 a “sham marriage” that there is no genuine relationship between the parties to the marriage and it seeks to avoid immigration law or obtain a right conferred by immigration law.

A “marriage of convenience” is defined in Regulation 2(1) of the EEA Regulations 2016 as the underlying purpose is obtaining an immigration advantage (i.e. obtain a visa).

However, the High Court has agreed that “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”.

Accordingly, the claimant’s case that it was unlawful to prevent his marriage on the basis that it was a marriage of convenience was rejected.

This raises a lot of questions for instance how can the Secretary of State make a decision on the intention of the couple when getting married, and come to the conclusion that its sole purpose was gaining and immigration advantage? After all, there is no problems with deciding to marry for a number of reasons, including gaining an immigration advantage, so long as there is also an intention of creating a family unit.

Hopefully, given the finding of the First-Tier Tribunal that the couple is genuine and they have a durable and subsisting relationship, the claimant (Mr Molina) has probably now received his 5-year residence card. With such circumstances, it is very unlikely that he will bother challenging this surprising decision by the Upper Tribunal.

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Tags: Britain Home Office Immigration

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