Sham marriages – otherwise known as ‘marriages of convenience’ – are commonly used to gain entry into the UK. It is an abusive manipulation of the immigration system and it particularly exposes vulnerable women and children to exploitation.

Last month, a Slovakian gang was sentenced to a total of 36 years in prison for bringing women to Scotland to then be sold into sexual slavery or sham marriages for the purpose of helping men become EU citizens. Slavery and sham marriages are closely linked and the problem is getting worse: it has also been reported that one person was trafficked into slavery every day during the pandemic – at least double the number reported five years ago; and four times the number in 2013.

A sham marriage is where either or both parties is not a relevant national (eg British or Irish) and there is no ‘genuine’ relationship between them; and the marriage is entered into to circumvent UK immigration controls.

People involved in a sham marriage can be banned from entry; and on deciding an application for a spousal visa, the Home Office will be considering whether it is genuine. And the rules are tightening: from 1 January this year, new rules came into effect allowing permission to enter or to stay in the UK to be refused or cancelled on the grounds of (among other things) involvement in a sham marriage (or civil partnership). This will mean the applicant can be removed from the UK – as can the sponsor themselves.

The Home Office has recognised that sham marriages are often part of organised crime groups where other types of criminality, particularly money laundering and identity fraud, are involved. The Slovakian gang’s activities, for example, extended at least to general sexual exploitation and slavery.

The introduction of the new rules in January was shortly followed by a government document issued to Home Office staff on the new rules, which immigration lawyers should be now be familiar with. The guidance makes clear that marriage investigations must continue where there are “reasonable suspicions” that someone is participating in or facilitating a sham marriage – even if the marriage/attempt to marry is unsuccessful.

But the individual’s immigration status must be fully considered to determine the appropriate immigration enforcement action following a criminal investigation.

Concerns

But there are concerns that an algorithm being used to identify applicants who are in genuine relationships or are attempting to evade the rules could result in discrimination. The Public Law Project said some nationalities seem more likely to be selected for investigated than others. The algorithm has been used since spring 2019, and other algorithms have already been criticised for their discriminatory characteristics.

An equality impact assessment (EIA) from the Home Office itself revealed several legal issues with the digitalised process, including the possibility of indirect age discrimination. Though it found no direct impacts for any protected characteristics, it said there may be indirect discrimination. However, the EIA stated that such indirect discrimination in this context is not unlawful and can be justified because it is proportionate to achieving a legitimate aim.

That it has become necessary to tighten the rules to minimise the numbers of sham and marriages of convenience to evade immigration rules is undeniable. But it means that genuine couples and their families face a tougher and longer process when making genuine applications for entry into the UK.

Lawyers advising genuine spouses/partners need to ensure applications are properly prepared and accompanied by supporting evidence and documentation to avoid the risk of an investigation.