One of the main considerations for the Home Office when deciding a spouse visa application is whether or not the relationship and marriage are genuine and subsisting. If the Home Office suspects that the Applicant and Sponsor are in a sham marriage for the purpose of the applicant getting a UK visa, then there can be serious consequences for both parties; beyond the application being refused. It is therefore wise for applicants to seek legal advice before proceeding with a spouse visa application, to ensure the Home Office believes the relationship is genuine and the substantial documents are provided in support of that.
What is a Sham Marriage?
Under section 24(5) of the Immigration and Asylum Act 1999, the definition of a sham marriage is
“A marriage is a “sham marriage” if either or both parties is not a relevant national [i.e. not a British or EEA national], there is no genuine relationship between the parties to the marriage, and either or both parties enter into marriage for one or more of these purposes: avoiding the effect of immigration law/rules, and/or enabling a party to obtain a right conferred by immigration law/rules”.
Essentially, a sham marriage, in UK Immigration terms, is one that is for the purpose of gaining an immigration advantage in the UK. Under EU law, a sham marriage is referred to as a “marriage of convenience”. In recent months, the Home Office has been clamping down on non-EEA nationals marrying EEA nationals more than those marrying British or settled citizens.
The genuineness of a relationship will also be considered when making an application as a spouse of a British or settled person, even after the marriage has taken place. The Home Office will consider whether the relationship is genuine and subsisting, in order for the application to stand a chance of being successful. Whilst there is no definition of “genuine” in either the Immigration Rules or Home Office guidance, there are a number of considerations the Home Office will make when assessing whether a relationship is genuine, under Annex FM Section FM 2.0.
A sham marriage and a forced marriage are therefore not deemed to be a genuine marriage. Arranged marriages, however, can be genuine.
What are the consequences of being found to be in a Sham Marriage?
If the Home Office reaches the conclusion that a relationship is not genuine and the marriage is a sham, this could have serious implications beyond a refusal of the application (which in itself can become costly, time-consuming and stressful).
Under the Immigration (European Economic Area) Regulations 2016 (“EEA Regulations”), not only can the non-EEA Applicant be removed from the UK, but so can the EEA Sponsor on the basis of having entered a marriage of convenience. It is also possible to receive criminal prosecution under sections 24A and 25(1) of the Immigration Act 1971 for obtaining leave by deception or assisting unlawful immigration. Therefore it is crucial to properly demonstrate the genuineness of the relationship and marriage.
Overcoming the accusation of a Sham Marriage
If an Applicant receives a spouse visa or EEA(FM) refusal, there may be a right of appeal. When appealing to the First Tier Tribunal, it is important that within the bundle of documents there is substantive evidence to demonstrate that the marriage is not a sham. This can include documents submitted with the original application, as well as further and updated documents which show that on the day of the appeal, the relationship is still genuine and subsisting. The Applicant and Sponsor may also wish to include witness statements in order to tell the Judge their ‘story’. During the hearing, the Applicant and Sponsor may be questioned by the Home Office presenting officer to try and ‘catch them out’ by seeing if the answers given are consistent. Therefore, preparation is key! LEXVISA Immigration solicitors are specialists in appeals, specifically where there is an issue of credibility in the relationship. We prepare comprehensive bundles and witness statements as well as conducting a mock appeal hearing to prepare clients for the questions they may face during the hearing.
Using Legal Representation to overcome the accusation of a Sham Marriage
Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration status. It is possible to instruct an immigration and visa legal representative to submit to overcome the accusation that you are in a Sham Marriage.
Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your application succeeds, all necessary documents must be provided.
This can be a significant administrative task and you will need to submit the correct documentary evidence. The UK Immigration Rules are complex and a legal representative can help ensure that your application meets the Immigration Rules.
Successfully overcome the accusation of a Sham Marriage
Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest. We offer a client-tailored approach from the outset. From the very first meeting, we will be able to advise you in respect of your immigration status and the merit of your visa and immigration application before your matter even reaches the Home Office UK Visa & Immigration department. We can assist you with the preparation of your immigration and visa application and ensure that you meet all the requirements of the relevant rules.
Our offices are located in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients. We are minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.
Preparation is the key to successful immigration applications. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation.
Contact our London immigration solicitors on 02071830570 or complete our contact form.