Concept of Marriages of Convenience in EU Free Movement Law

Aleksandra Ancite-Jepifánova, Ph.D., is an interdisciplinary scholar working in the field of European and comparative migration, asylum and nationality law and policies. She received her doctorate in law (2021) from Queen Mary University of London.

• AcknowledgementsList of TablesAbbreviationsIntroduction1 Setting the Scene: Marriages of Convenience and EU Citizens’ Right to Family Reunion2 Limitations3 Sources4 Terminology4.1 ‘Marriages of Convenience’4.2 ‘Citizen’ v ‘National’4.3 ‘Family Reunion’ v ‘Family Reunification’5 Chapter OutlinePart 1EU and European Human Rights Law1 Right to Family Reunion in EU Free Movement Law1 Introduction2 From ‘Market Citizen’ to Union Citizen: Evolution of the Concepts of Free Movement of Persons and EU Citizenship2.1 On the Way towards the Citizenship Directive2.2 Citizenship Directive3 Right to Family Reunion under the Citizenship Directive3.1 Rights of Family Members as Derivative Rights3.2 Who Is Considered a Family Member?3.3 Married Couples as a Privileged Group4 Derogations from Free Movement Rights4.1 Public Policy, Public Security and Public Health4.2 Abuse of Rights5 Conclusion2 Right to Family Reunion as a Source of Tension between the cjeu and Member States1 Introduction2 Treating Nationals Worse than Foreigners: The Phenomenon of Reverse Discrimination3 The Substance of Marriage4 Returning Member State Nationals5 EU Citizens Forming Families in the Host Member State6 Visas for Non-EU Family Members Travelling to the UK7 Family Reunion Cases Outside the Scope of the Citizenship Directive7.1 Different Forms of Free Movement7.2 Static EU Citizens8 Marriages of Convenience as the Only Form of Abuse of Rights?9 Conclusion3 After Metock: Marriages of Convenience as an Apple of Discord between the EU and Member States1 Introduction2 All You Need Is Love? The Controversial Notion of Marriages of Convenience3 The Judgment in Metock: Opening a Pandora’s Box4 Exploitation of the Vulnerable? EU-8 Nationals in Focus5 UK and Three Other Member States Demanding Change6 Pre-referendum Settlement: An Unprecedented Concession to the UK7 Conclusion4 Europeanisation of Relationship Standards? Marriages of Convenience in EU Soft Law1 Introduction2 EU Soft Law in a Nutshell2.1 The Concept of European Soft Law2.2 General Rule: No Derogation from Hard Law2.3 Legal Effects of EU Soft Law at the National Level3 EU Soft Law on Marriages of Convenience3.1 Commission Guidelines and Handbook as Interpretative Tools3.2 Definition of Marriages of Convenience: The ‘Sole Purpose’ Test3.3 Relationship between the ‘Sole Purpose’ Test and the cjeu Case Law3.4 Investigation of Marriages: Limitations and Procedural Safeguards3.5 ‘Operational’ Measures4 Conclusion5 The Concept of Marriages of Convenience and European Human Rights Law1 Introduction2 Articles 12 and 8 of the echr in a Nutshell2.1 The Right to Marry and to Found a Family2.2 The Right to Respect for Private and Family Life3 Articles 8 and 12 of the echr and Immigration Control4 The Legality of Targeting Marriages of Convenience for Immigration Purposes4.1 Marriages of Convenience in ECtHR Case Law4.2 Methods of Investigation and Human Dignity5 ECtHR Case Law on Marriages of Convenience vs EU Free Movement Law6 ConclusionPart 2UK Law6 Historical Development of Family Reunification Provisions in UK Law1 Introduction2 1948–1977: The End of Free Movement for Commonwealth Nationals3 The ‘Primary Purpose Rule’ (1977–1997)4 After the ‘Primary Purpose Rule’: Focus on Pre-wedding Controls5 Certificate of Approval Scheme: Tarring Everyone with the Same Brush6 The Blame Misplaced: Citizenship Directive as a ‘Loophole’7 Conclusion7 Marriage Controls during the Pre-Brexit Period1 Introduction2 Pre-marriage Controls: ‘Referral and Investigation Scheme’2.1 Immigration Act 2014: ‘Sham Marriages’ and ‘Compliant Environment’2.2 Definition of a ‘Sham Marriage’2.3 Compliance with an Investigation2.4 Implications of Giving a Marriage Notice in the UK2.5 Interplay between the ‘Referral and Investigation Scheme’ and EU Law3 Post-marriage Controls3.1 Procedures for Family Reunion with EU Citizens in the UK3.2 The Concept of Marriages of Convenience in the eea Regulations3.3 Application for an eea Family Permit3.4 Application for an eea Residence Card3.5 Non-suspensive Appeal Rights3.6 Deporting EU Citizen Spouses: Public Policy Test3.7 Marriages of Convenience and UK Family Law4 Conclusion8 Marriage Controls after Brexit1 Introduction2 Position of EU Citizens in the UK after Brexit3 Family Members of EU Citizens in the UK4 Marriages of Convenience Post-Brexit4.1 Pre-marriage Controls4.2 Post-marriage Controls4.3 Procedures Following a Marriage of Convenience Determination5 Conclusion9 Assessing the Nature of Marriage: Conduct of Investigation1 Introduction2 ‘Risk Profiles’ and Marriages Perceived as ‘Suspicious’3 Interview Questions: Focus on Discrepancies and Cohabitation4 Hostile Interviewing Style5 Cases Involving Pregnancy or Childbirth6 Home Visits7 Conclusion10 Legitimising the Illegitimate: Marriages of Convenience and the UK Judiciary1 Introduction2 Burden of Proof2.1 Evidential Burden3 Focus on Cohabitation and/or Present State of the Relationship4 Definition of Marriages of Convenience4.1 Literal Interpretation of the Definition5 Cases Involving Pregnancy or Childbirth6 ConclusionConclusionAnnexesAnnex 1Annex 2Annex 3BibliographyIndex