The Commission’S Handbook On Marriages Of Convenience

 Alina Tryfonidou, Associate Professor inward European Union Law, School of Law, University of Reading

 On 26 September 2014, the Commission published a Handbook(‘Handbook on addressing the number of alleged marriages of convenience betwixt European Union citizens as well as non-EU nationals inward the context of European Union police clit on gratis crusade of European Union citizens’) to assist Member United States to accept activity against marriages of convenience betwixt migrant European Union citizens as well as third-country nationals, whilst ensuring that the rights that European Union citizens derive from the European Union gratis crusade provisions are non unduly express equally a outcome of such action.  As explained past times the Commission inward its Press Release, the Handbook was prepared ‘in unopen cooperation amongst Member United States next requests past times a number of European Union countries for back upward inward dealing amongst the phenomenon’; as well as the guidelines emerging from it volition ‘help to ensure that national regime address this phenomenon – the extent of which varies significantly betwixt Member United States – based on the same factual as well as legal criteria throughout the Union’.  

The publication of the Handbook was also accompanied past times a Communication from the Commission to the European Parliament as well as the Council, which summarises the primary content of the Handbook.  As noted inward the Handbook (p. 5) as well as the documents accompanying it, ‘[t]he Handbook is neither legally binding nor exhaustive.  It is without prejudice to existing European Union police clit as well as its futurity development.  It is also without prejudice to the authoritative interpretation of European Union police clit which may live given past times the Court of Justice’. 

Before proceeding to examine the contents of the Handbook, I should render some background data regarding marriages of convenience as well as their link amongst European Union gratis crusade law. 

As is well-known, Member State nationals – who, since 1993 (with the entry into forcefulness of the Maastricht Treaty), are, also, Union citizens – are entitled to the right to displace as well as reside freely inside the EU.  This right is bestowed past times a number of dissimilar provisions (collectively referred to equally ‘the gratis crusade of persons provisions’) which are similar a shot constitute inward the FEU Treaty, as well as is farther elucidated inward secondary legislation and, inward particular, Directive 2004/38.  Although this was (and all the same is) nowhere reflected inward the Treaties, it has e'er been recognised that inward social club to ensure that Union citizens are non deterred from exercising the to a higher house right, they must live ‘guaranteed’ that its exercise volition non atomic number 82 to loss of the right to alive amongst their household unit of measurement members or, to a greater extent than broadly, to a disturbance to the smoothen functioning of their household unit of measurement life.  Thus, household unit of measurement reunification rights get got been considered a necessary accompaniment to the right to displace as well as reside inward the territory of some other Member State derived from the Treaty.

For this purpose, since the 1960s, secondary legislation has provided for automatic family reunification rights for migrant Member State nationals, something which has proved specially beneficial inward situations involving migrant Union citizens with third-country national household unit of measurement members, since the latter can, equally a result, bring together the one-time inward the host Member State without having to undergo a prior private assessment of their situation, which is (normally, i.e. inward instance European Union police clit does non apply) required past times Member State immigration rules.  Family reunification rights for migrant Union citizens are similar a shot constitute inward Directive 2004/38, which provides, inter alia, that migrant Union citizens are entitled to live accompanied or joined inward the host State past times their ‘spouse’, which clearly covers both third-country national spouses equally good equally spouses asset the nationality of a Member State (Article 2(2)(a) of Directive 2004/38). 

The European Union legislature as well as the ECJ get got been aware of the danger of abuse of European Union gratis crusade rights, and, inward the especial context of household unit of measurement reunification rights, of the danger that third-country nationals may larn into into marriages of convenience amongst Union citizens, inward social club to bypass national immigration rules past times activating the total gamut of rights that European Union police clit grants to the household unit of measurement members of migrant Union citizens. Hence, Article 35 of the Directive provides that ‘Member United States may adopt the necessary measures to refuse, terminate or withdraw whatever right conferred past times this Directive inward the instance of abuse of rights or fraud, such equally marriages of convenience.  Any such mensurate shall live proportionate as well as dependent area to the procedural safeguards provided for inward Articles xxx as well as 31’.  The to a higher house provision, nonetheless, exactly recognises that Member United States tin sack adopt measures to tackle marriages of convenience as well as it does non explicate what this actually agency or what it may entail. 

Initially, the European Union provided only express guidance equally regards marriages of convenience as well as how these could best live tackled past times Member States.  In particular, inward 2009, inward its Communication to the European Parliament as well as Council ‘on guidance for improve transposition as well as application of Directive 2004/38/EC on the right of citizens of the Union as well as their household unit of measurement members to displace as well as reside freely inside the territory of the Member States’, the Commission provided a clarification of the notions of ‘marriages of convenience’ as well as other forms of abuse as well as fraud for the purposes of Article 35 of the 2004 Directive (see Section 4 of the Communication). However, it did non render clear as well as detailed guidance equally to how Member United States should bargain amongst the to a higher house without acting reverse to European Union law. 

For this purpose, inward 2012, the Justice as well as Home Affairs Council agreed that a handbook was necessary to render detailed guidelines for Member United States detailing how best to answer to the phenomenon of marriages of convenience (‘EU activity on migratory pressures – Influenza A virus subtype H5N1 Strategic Response’).  Moreover, inward Nov 2013, the Commission inward its Communication‘Free crusade of European Union citizens as well as their families: Five actions to brand a difference’, pose out 5 actions to aid implement European Union rules on gratis crusade inside European Union fellow member States, and, equally a response to the Justice as well as Home Affairs conclusions inward 2012, 1 of these actions was ‘helping Member United States contend marriages of convenience’.  Accordingly, it was agreed that the Commission, together amongst Member States, should gear upward a handbook providing guidelines for the purpose of tackling marriages of convenience.

This is what led to the adoption of the Handbook nether exam which, equally explained past times the Commission, offers ‘national regime operational guidance to assist them inward effectively detecting as well as investigating suspected cases of marriages of convenience.’ (p. three of the Communication accompanying the Handbook).

The Handbook – a 47-pages-long document – is divided into 4 sections: 1. Introduction; 2. Definitions; 3. Applicable legal framework; 4. Operational measures inside national remit.

In Section 1, the Commission sets out the background to the Handbook – what made it necessary to gear upward the Handbook as well as what is its aim – as well as limits its reach of application to situations involving European Union citizens who ‘reside amongst their third-country national husband inward a Member State other than that of their nationality, or reside inward the Member State of their nationality afterward having exercised their right to gratis crusade notably past times residing inward some other Member State’ (i.e. marriages of convenience inside the pregnant of Directive 2004/38, summation so-called ‘Surinder Singh’ cases of people who displace to some other Member State so render to their domicile State, to which the same rules apply). It  thereby excluding marriages of convenience betwixt 2 European Union citizens as well as betwixt 2 third-country nationals, or situations which are purely internal to a Member State, ie where no-one has exercised their right to displace to some other Member State (p. 5 of the Handbook). 

As explained, the Handbook seeks to ‘assist Member United States inward tackling suspected marriages of convenience from the specific perspective of European Union citizens’ right to gratis movement’.  It is stressed that since actions taken past times national regime when tackling abusive practices such equally marriages of convenience are derogations from a primal liberty – gratis crusade – they may only accept house on a case-by-case solid soil as well as if they are non-discriminatory, justified as well as proportionate, if they comply amongst the procedural safeguards pose downwards inward Articles xxx as well as 31 of Directive 2004/38, as well as if they produce non breach whatever of the primal rights protected nether European Union law; a betoken which is analysed inward to a greater extent than especial inward Section three of the Handbook, which is devoted to a detailed explanation of each of the to a higher house requirements.

Section 2 so proceeds to render definitions of the primary damage used inward the Handbook and, inward particular, it provides guidance for distinguishing betwixt genuine marriages as well as marriages of convenience, as well as betwixt abuse as well as fraud.  After explaining the pregnant of ‘marriage of convenience’ for the purposes of the Handbook (‘a spousal human relationship contracted for the sole purpose of conferring a right of gratis crusade as well as residence nether European Union police clit on gratis crusade of European Union citizens to a husband who would otherwise non get got such a right’), the document summarises the constitutive elements of abuse, explaining that inward detecting a spousal human relationship of convenience, ‘the focus must live on the intention of the human relationship on which the right of residence is founded rather than on the outward reflection of the relationship’.  The department so provides examples of dissimilar types of genuine marriages (arranged marriages, proxy marriages, consular marriages) as well as marriages of convenience (‘standard’ marriages of convenience, marriages past times deception, forced marriages, bogus marriages), as well as refers to the European Union rules which apply inward instance the marriages of convenience include elements of trafficking inward human beings.

Section three proceeds to pull the applicable legal framework.  It begins past times explaining that an wrong conclusion restricting gratis crusade rights on grounds of abuse may get got an of import negative acquit on on the rights as well as well-being of European Union citizens as well as their families who get got very made job of their right to gratis movement.  Accordingly, the aim of department three is, firstly, to aid ‘national regime to seat all the factors as well as rules that must live taken into line of piece of work organisation human relationship when wanting to accept whatever mensurate to preclude or tackle abuse, inward especial the European Union rules on gratis crusade as well as primal rights’, equally pose downwards inward the FEU Treaty as well as the EU Charter of Fundamental Rights, respectively, but also other of import instruments of European as well as international police clit that ask to live taken into account, such equally the ECHR,UDHR, ICCPR, UNCRC; and, secondly, ‘to pull the attending of national regime to the fact that whatever formal conclusion taken past times national regime inward relation to marriages of convenience has to comply amongst a number of procedural safeguards’.  The section, also, deals amongst the issues of evidential burden as well as the burden of proof, the latter clearly resting on the national regime which ask to essay out that the spousal human relationship is of convenience. 

The lastly department – Section 4 – ‘reflects practices distilled from national practices across the Member States’ as well as ‘should serve equally a toolbox of solutions allowing Member United States to pose upward tailored operational schemes plumbing equipment their specific needs as well as available resources’.  It begins past times explaining the reasons as well as motivations behind marriages of convenience as well as so proceeds to analyse the hints that could trigger the launch of an investigation past times national regime – it is, nonetheless, underlined that ‘hints of abuse may only trigger an open-ended investigation, amongst no pre-determined outcome’ (p. 33). 

However, the Commission has been warning to the danger of considering a genuine duo equally abusers and, hence, inward this department it describes an approach that should live followed past times national regime inward social club to minimise the danger of considering a genuine duo equally abusers (the ‘presumption of innocence’ as well as the ‘double-lock safeguard’), as well as provides a listing of hints of abuse (i.e. for certain demeanour traits that abusive couples are much to a greater extent than probable to introduce than genuine ones), which is divided into ‘several groups corresponding to inherent stages of “the life cycle” of marriages of convenience’ (p. 36). 

This department concludes amongst an analysis of the law-enforcement techniques as well as tools which tin sack live used to tackle marriages of convenience (simultaneous interviews as well as questionnaires, document as well as background checks, inspections as well as community-based checks), encouraging, inward particular, ‘reinforced cross-border cooperation as well as sharing of best practices inward this expanse betwixt competent national authorities’ (p. 41), which tin sack live significantly facilitated past times 2 European Union agencies (Europol as well as Eurojust) equally good equally the European Commission itself.  It is highlighted that the techniques as well as tools presented inward this section, must live compliant amongst the applicable procedures as well as safeguards as well as must honour primal rights, most prominently the right to private life.

There is no uncertainty that the Handbook is a good thought-out as well as carefully drafted document, which seems capable of serving good the purpose for which it was published, this beingness to assist Member United States inward their attempt to eradicate the phenomenon of marriages of convenience inward a balanced way.  It is clear that its drafters sought to ensure that inward their contend against abuse as well as fraud inward situations involving migrant Union citizens, national regime volition confine the gratis crusade rights of the latter equally footling equally possible. 

Moreover, the Handbook – postdating the Treaty recognition of the binding nature of the European Union Charter of Fundamental Rights – constantly highlights the importance of ensuring that Member United States produce non engage inward whatever violations of primal (human) rights – equally these are protected nether the Charter but, also, nether international instruments, such equally the ECHR as well as the ICCPR – when investigating, proving as well as responding to a finding of a spousal human relationship of convenience.  Accordingly, the Commission should live commended for drawing the attending of the Member United States to the ask to keep throughout all stages of tackling amongst a spousal human relationship of convenience a residuum between, on the 1 hand, the right to gratis crusade that Union citizens derive from European Union police clit as well as the ask to safeguard the protection of the primal human rights of whatever persons involved inward a suspected instance of spousal human relationship of convenience and, on the other, the might of the Member United States to ensure the effective enforcement of their immigration policies as well as the prevention as well as eradication of whatever abusive practices which by-pass national immigration rules as well as procedures.

It is all the same early on days for judging the success as well as effectiveness of the document, given that it was only published lastly week.  However, 1 betoken of criticism tin sack already live made as well as this is virtually its express scope. 

It is truthful that dissimilar considerations apply inward situations involving couples comprised of a (migrant) Union citizen as well as a third-country national (which are covered past times the Handbook), on the 1 hand, as well as migrant or non-moving couples comprised of 2 Union citizens or of 2 third-country nationals (which are non covered past times the Handbook), on the other; inward fact, dissimilar considerations apply, also, amid the dissimilar types of couples that autumn exterior the reach of the Handbook.  Yet, inward all cases involving suspected marriages of convenience as well as the inquiry of how Member United States should answer to them, the same safeguards regarding the protection of primal human rights as well as primal principles ask to live inward place. 

In fact, equally tin sack live noticed from a careful perusal of the Handbook, its drafters seem to live to a greater extent than oftentimes than non concerned amongst safeguarding primal human rights as well as amongst ensuring that Member United States are aware of the ask to comply amongst for certain procedural requirements which derive, inward their turn, from the ask to protect human rights as well as primal procedural requirements, rather than to ensure the protection of the right to gratis movement, which is what differentiates the category of couples that falls inside the reach of the Handbook from (almost all) the other couples that are excluded from its scope. 

Accordingly, it would brand to a greater extent than sense, inward my view, to draft a Handbook which would apply inward all situations which autumn inside the reach of European Union police clit as well as which involve Member State regime tackling marriages of convenience.  The drafters would, clearly, live able to add together some separate sections inward social club to brand provision for the dissimilar considerations that ask to live taken into line of piece of work organisation human relationship inward relation to for certain matters.  Such an approach would render a clearer framework for Member United States to tackle marriages of convenience as well as would take away the ask for the drafting of similar documents roofing the other categories of couples inward the future.  Such a wholesome approach to the provision of guidelines amongst honour to the Member States’ response to marriages of convenience would non live alone unprecedented, given that the Council issued inward 1997 a Resolution on measures to live adopted to fighting marriages of convenience, which was applicable both to couples comprised of a Union citizen (migrant or non-moving) as well as a third-country national and couples comprised of 2 third-country nationals.

Barnard & Peers: chapter 13, chapter 16

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