The UKBA Consultation on changes to the regulations governing Family Migration will close on 6th October . 14 of the 40 questions in the consultation are connected to ‘sham marriage’ – current parlance for marriages of convenience for immigration purposes. The proposed changes form part of the coalition government’s aim to significantly reduce immigration, a goal which is challenged by the fact that many migrants enter the country as family members of other visa holders, or UK or European citizens. This type of migration cannot be easily ‘capped’ given the right for respect to family life enshrined in the European Convention on Human Rights. But of course the right to respect for family life does not apply if the family life asserted is found not to be genuine.
good marriage / bad marriage
Underlying the approach to sham marriage outlined in the consultation document is the aim of finding an ‘objective way of identifying whether a relationship is genuine and continuing or not’. This may, however, be an inherently problematic project. Marriage is seldom based solely on a Giddensian ‘pure relationship’ – whom, how and when to marry can be influenced by a range of factors even when immigration status is not an issue. As Helena Wray puts it,
“There is thus no binary divide between marriages entered into for ‘good’ reasons such as sexual compatibility or companionship and those entered for ‘bad’ reasons such as social or economic gains. The latter may partly determine the former and motives cannot be neatly disentangled. An immigration motive for marriage must be seen in that context. Immigration status may add to a potential spouse’s attractions without it being the only reason for marriage” (An Ideal Husband – Marriages of Convenience, Moral Gate-keeping and Immigration to the UK, Helena Wray, in European Journal of Migration and Law, 2006: 305).
There is also the matter of the enormous diversity of marriage practices and marital relationships which come into contact with the immigration system. The danger in setting out lists of criteria for assessing the genuineness of marriages is the likelihood that these factors will have a normative basis, reflecting assumptions of what a marriage should look like. Among the possible indicators suggested, for example, are the relative ages of the couple.
indicator for genuineness
That the nature of the wedding ceremony or reception is another suggested indicator of the genuineness of the marriage, with suspicion aroused where there are few or no guests, an absence of significant family members, or the presence of ‘complete strangers’. In compiling an edited collection on Transnational Marriage (to be published by Routledge, hopefully next year), I was struck by an example in a chapter by Maunaguru Sidharthan and Nicholas Van Hear on marriages taking place in South India between Sri Lankan Tamils dispersed across the globe by civil conflict. Because of the war, or difficulties in obtaining visas, close family members were not always able to attend weddings, so local Tamil refugees might fill in for these absent figures in the marriage rituals. Local Tamils would also attend weddings to recreate a temporary sense of community and kinship lost as a result of violence and population dispersal. Could such practices appear to immigration officials alert to indicators of sham marriage, as the creation of a fake crowd (or even a fake family) for the sake of photographs for use in a later spousal immigration application?
Previous spousal migration or sponsorship of spousal immigration is another of the suggested indicators. One of the consultation proposals is to restrict immigrant spouses’/partners’ ability to sponsor another spouse/partner within 5 years of gaining settlement. As it is also proposed that the probationary period for spouses before settlement could be granted is to be extended from 2 to 5 years, this would effectively mean a limit of one marriage involving migration per decade. In my own research with British Pakistanis, I have come across migrant husbands who leave their British Pakistani wife, and then bring a new spouse from Pakistan to join them. As the religious divorce is usually much quicker than the civil divorce, and Pakistan in any case permits a man to have more than one wife, an impression of lack of commitment to the first marriage may be compounded where the second marriage takes place before the civil divorce from the first wife is finalised (Charsley and Liversage, forthcoming 2012 in Global Networks). But these are not always cases of premeditated deception – marriages may fail for a variety of reasons, including the unexpected pressures of life as a migrant husband (Charsley, K. 2005. Unhappy Husbands: Masculinity and Migration in Transnational Pakistani Marriages. Journal of the Royal Anthropological Institute (N.S.) 11: 85-105).
A normative model of a genuine marriage carries the danger that certain groups who tend to diverge from this paradigm may be subject to increased immigration scrutiny. This appears already to be the case, as a report from the independent inspector of the UKBA found that a greater burden of documentary evidence to support immigration claims was demanded of Pakistani nationals than nationals of the Gulf Co-operation Council Countries. Unsuprisingly, visa refusal rates for Pakistanis were higher.
Under the new proposals, some couples would be required to attend an interview with a new brand of official whose duties combine that of registrar and immigration officer, and suspected sham marriages could be delayed (it does not say at what point – after the reception is arranged and the guests have booked airfares, or on the day itself?). Some marriages could be cancelled altogether if ‘proven sham’. It seems quite a leap from saying that an immigration claim made on the basis of marriage will not be granted, to denying couples the right to marry in the first place.
There is much more which could be said about the individual proposals, but finally: views are invited on the idea of introducing a ‘combined attachment’ regulation of the type in force in Denmark. This is a terribly clever policy instrument – couples have to demonstrate that their attachment to Denmark (measured in terms of social networks, work and education etc) is significantly greater than that to any other country (otherwise they can have their family life, but not in the country of their choosing). There is an expectation that the foreign spouse will have visited Denmark, and the rule only applies to those who have not held Danish citizenship for 28 years. A 26 year old Danish citizen who wants to be reunited with a spouse from a developed country who has been able to travel to Denmark for visits, perhaps to study, and to build up social networks, is thus likely to achieve their aim. The same citizen, but from a migrant or minority ethnic background and married to someone from their own ethnic group in a developing country who has not been able to obtain other forms of visas to travel to Denmark, on the other hand, will find it extremely difficult to meet the ‘combined attachment’ requirements.
Marriages which are purely for the sake of gaining or regularising immigration status do occur. It seems to me, however, that some other marriages which do mark or form an ongoing relationship may be negatively interpreted under the new proposals. The danger is that these changes will exacerbate the current situation in which people from some social groups have much lower chances of being able to achieve family reunification than those from others.
The Home Office recently published a review article by Katharine Charsley on marriage related migration to the UK.