Married to the state?

By Dr John Hayward

Nobody wants Britain to be a haven for sham marriages.  However, we should be wary of any measures that restrict the choices available to those wishing to celebrate genuine marriages. Regrettably, this is already happening and the present Immigration Bill threatens to make a bad situation worse.

The Asylum and Immigration Act 2004 introduced a package of measures which were designed to deter sham marriages.  The Immigration Bill now passing through Parliament seeks to give the Home Office even “greater scope to prevent and investigate suspected sham marriages/civil partnerships.”

Specifically, it provides for the establishment of a new referral and investigation scheme that would require registration officials to refer a proposed marriage/civil partnership to the Home Office if either or both of the parties (i) are not British citizens, EEA or Swiss nationals, (ii) do not possess right of permanent residence in the UK under EU law, or (iii) do not hold a relevant visa for marriage or civil partnership.

The Home Office’s concerns stem from European law that grants EEA nationals and their family members a right to reside in the UK.  As a consequence, although a non-EEA national who marries a British citizen in this country is not automatically entitled to live in the UK, one who marries an EEA national anywhere else in the EU and then exercises their free movement rights acquires a right to reside in the UK as an ‘EEA family member’, regardless of their immigration status at the time of the marriage.

As the Briefing Paper for the Bill’s Second Reading (p.37) explains, “They do not have to apply to the Home Office for permission to stay in the UK, but can apply for documentation confirming their right of residence as an EEA family member if they wish. They are required to provide evidence of their relationship, such as a marriage certificate, but are not required to satisfy accommodation and maintenance or language requirements, or to show that the relationship is subsisting at the point of applying for documentation (unlike applications considered against the Immigration Rules).”

This concern is not just hypothetical.  I know of a British friend who recently married his American fiancée.  Wanting to continue living here, but finding Government requirements unnecessarily bureaucratic, they felt forced to get married abroad.

Following a short holiday to Denmark, for the sole purpose of visiting a registry office, his wife is now able to reside legally in the UK as an ‘EEA family member’.  Yet, this is a genuine marriage between a young couple that enjoys the support of both their families and network of friends.  Their only offence was to discover that nationality is no barrier to love.  Having married my own American bride over 16 years ago, and suffered my own share of immigration headaches, I understand completely.

The Government needs to be clear that, in its determination to stamp out fake civil unions, it does not unintentionally make it even more burdensome for genuine couples to wed in this country.  It also needs to be clear as to where any loopholes in its legislation lie.

The problem is not marriage, but the implementation of European law in the UK.  If the Asylum and Immigration Act 2004 has failed in its intent, then the solution is not to place marriages involving non-Europeans under the oversight of the Home Secretary.  The object of the Government’s attention should rather be our relationship with Europe.

Following the trend established by the recently-imposed redefinition of marriage, it seems that there is no end to the Coalition’s willingness to interfere in its citizens’ personal relationships.

Well would our legislators heed Aristotle’s warning, “To the size of states there is a limit, as there is to other things, plants, animals, implements; for none of these retain their natural power when they are too large or too small, but they either wholly lose their nature, or are spoiled.”