Attempted abuse by non-EEA nationals applying on the basis of sham marriage or civil partnership with a European citizen was significant. The Home Office had identified that this abuse was a growing problem, and staff were alive to risks of fraud and deception and many of the non-EEA applicants refused residence cards were over stayers or illegal entrants. However, individuals found to be using deception were not generally prosecuted and there was no clear strategy across all Home Office departments to tackle sham marriage.
These were some of the key findings in the Independent Chief Inspector’s report on ‘The Rights of European Citizens and their Spouses to Come to the UK’. EEA nationals and their family members may choose to apply to the Home Office for documents – registration certificates and residence cards – which confirm that they are exercising their free movement rights in the UK. These documents may be useful to them as confirmation of their right to work or reside in the UK or for other purposes such as access to public services. This inspection examined the efficiency and effectiveness of the Home Office’s handling of this European casework, as well as the steps it takes to identify and tackle abuses, particularly sham marriage.
The Chief Inspector found that:
• the majority of decisions to refuse registration certificates or residence cards were reasonable;
• 43% of the non-EEA spouses and civil partners who were refused residence cards in our sample were either overstayers or illegal entrants;
• there was an efficient process for identifying forged and counterfeit documents submitted with applications;
• analysis of appeal outcomes had enabled the Home Office to continue its robust approach to establishing whether overseas proxy marriages, commonly involved in abuse, were legally valid;
• the marriage interview process had given caseworkers an additional source of evidence on which to make decisions in suspected sham marriage cases;
• a new management team in European casework had acted to improve capacity and focus on clearing the backlog from 2012. They achieved their target of completely eliminating the backlog of workable cases by 1 April 2014.
However, the Chief Inspector also found that:
• the Home Office targeted sham marriage facilitation by organised crime gangs but did not generally prosecute lower level individual abuses (which could act as a deterrent). Enforcement staff welcomed recent changes to the EEA Regulations designed to facilitate action against those involved in fraud;
• no strategic initiative existed to ensure that enforcement teams were resourced to exploit prosecution and/or removal of offenders. There was also no concerted end-to-end approach to combating this abuse of Treaty rights and yet all the functions, apart from the wedding ceremonies, sit with the Home Office;
• intelligence on the actual extent of sham marriage was lacking – the planned intelligence hub in Liverpool had yet to be fully staffed and a new intelligence management system was still in its roll-out phase;
• the internal 20-day target for a decision on a registration certificates was achieved in only 32% of our sampled files (1 April to 30 Sept 2013) and 39% of residence cards for non-EEA nationals had a decision made after the legal deadline of six months from the application date. This was unacceptable;
• some cases, where there was suspicion of sham marriage, were not subjected to the appropriate level of scrutiny. Caseworkers ran out of time to conduct interviews with some applicants and their sponsors because applications were still being worked on as the six-month deadline approached;
• 72% of non-EEA applicants who were refused made repeat applications or appealed. This meant that they could not be removed from the UK while that application or appeal was being dealt with;
• separate interviews of couples could identify discrepancies but interviewers could encounter well-rehearsed responses;
• enforcement team visits to couples’ addresses were not an efficient use of such an expensive and highly trained resource;
• the application form was insufficiently clear on the evidential requirements for applicants. As a result, some applications were refused for supplying incomplete evidence of exercising treaty rights.
• 36% of West European EEA partners in our marriage sample had been born outside Europe and gained a European nationality before coming to the UK. They were often sponsoring non-EEA partners of their own original nationality or a similar cultural background. The refusal rate for this group was higher at 59% than West European sponsors overall (53%);
• he was unable to judge decision quality when residence cards and registration certificates were issued as supporting documents had not been retained. In addition, 22% of electronic records of applicants had incomplete information. Management information on the performance of European Casework was also insufficient;
The Independent Chief Inspector of Borders and Immigration, John Vine CBE QPM said:
“The European citizenship route is becoming an increasingly important way into the UK for those whose origins lie outside the EEA, particularly now that the Immigration Rules have been tightened. I found that many of the non-EEA spouses refused residence cards were overstayers.
I found that most of the decisions to refuse to issue documents were reasonable and there were effective processes in place to identify forged and counterfeit documents. However, those practising deception were generally not prosecuted unless organised criminal gangs were involved. In January 2014, the Home Office brought in a new power to remove EEA nationals involved in fraudulent applications but I remain concerned about the general lack of prosecution and sanction against individuals found to have abused the system.
If the Home Office does not act decisively to identify and tackle these abuses, many of the individuals involved may go on to obtain settlement in the UK on the basis of relationships that are not genuine.
I welcome the appointment of a single senior manager with responsibility for tackling this particular abuse, but it will clearly be some time before the Home Office develops an understanding of the full scale of sham marriage abuse and a fully co-ordinated approach to tackling it.”
The Chief Inspector made 10 recommendations for improvement to the Home Office. These included; speedily removing those who sponsor, or seek to benefit from, marriages of convenience; collecting comprehensive and robust management information on all aspects of European casework; and deciding all linked applications for registration certificates and residence cards in a timely manner.