FAMILY UNITY AND ABUSE OF THE IMMIGRATION SYSTEM

UK POLICY TARGETING ABUSES IN FAMILY MIGRATION 

On our blog post of yesterday, we commented on the legal lacuna in domestic Irish law causing marriages of convenience to be lawful in the State. We called on the government to take immediate action to amend this situation and actively target the abuses in the EU Treaty Rights process.

Yesterday, the UK Minister for Integration, Damien Green, also addressed this topic in a speech to the Centre for Policy. He referred to the UK governments on going consultation process in respect of reforming family migration to the UK, which had been launched in July 2011. He indicated that this consultation group are working towards tackling abuses in the “family migration route”. The Minister referred to the following proposals that are being considered;

• define more clearly what constitutes a genuine marriage for the purposes of the immigration rules to help identify sham and forced marriages;
• introduce a minimum income threshold for those sponsoring family migrants to ensure they are supported at a level that helps integration;
• extend the probationary period before spouses and partners can apply for settlement in the UK from 2 years to 5 years to test the genuineness of relationships and to encourage integration into British life before settlement is granted; and
• require spouses, partners and adult dependants aged under 65 applying for settlement to be able to demonstrate that they can understand everyday English.

It is frustrating, but not surprising, to see the repercussions arising from a minority abuse of the immigration system in the UK, which then leads to a more difficult and restirctive application process for the genuine applicants. 

By way of comparison, it is very difficult to understand how the Irish government can allow the current position in respect of the non criminalizing of the “marriage of convenience” to stand. By not addressing the problem by way of criminal legislation, the fraudulent industry of surrounding this area can only prosper, and the Gardai’s hands are tied. Both legislative amendments and active policy making towards targeting marriages of convenience is essential in Ireland. However, restricting family unity rights for genuine family members is clearly not. 

16.9.11

Bropy Solicitors

EU TREATY RIGHTS

SHAM MARRIAGES: TV 3 DOCUMENTARY

We were pleased to be featured on a documentary by Paul Connolly, investigative journalist, on sham marriages that was screened earlier this week on TV3.

The documentary examined the lucrative business that has developed in Ireland where non-EU nationals exploit EU nationals, often young women from Latvia, in order to secure residency rights in the State through marriages of convenience. Non-EU nationals were seen to be taking advantage of the current legal lacuna with respect of marriages of convenience and securing the right of five years residence on EU Treaty Groups, but on the basis of a fake marriage.

Kevin Brophy of Brophy Solicitors featured in the documentary arguing that the Minister must act to criminalise marriages of convenience or sham marriages.

You may have read our previous blog posting on this very issue, where we again argued for legislation in this area. The Minister made a speech on this issue in June 2011 highlighting his own concern about irregular marriage patterns in Ireland and referred to amendments to the Immigration and Residence Bill designed to deal with the issue of marriages of convenience. We await the publishing of the Bill and hope that it will fill of the existing legal lacuna which is of great disservice and frustration of all genuine applicants in the EU Treaty Rights process.

Brophy  Solicitors

14.09.11

IMMIGRATION: RIGHTS OF INDIVIDUALS V OBLIGATION OF STATE AUTHORITIES

UK BORDER AGENCY OVERHALL OF IMMIGRATION SYSTEM

In making submissions to the Minster for Justice on behalf of our clients in respect of visa and residency applications, we frequently must address the delicate balance between the rights of our individual clients against the legitimate obligations of the State. A common example would be the rights of our clients to family unity verses the State’s right and obligation to act against abuse of the Immigration laws and to generally protect the public finances. It is of course the role of the State authorities to protect against abuse of law both in the civil and criminal sphere, and in immigration terms, this  would mean to prohibit fraudulent marriages of convenience, or abuses of the State’s welfare system. The correct balance to be reached can be difficult and unclear. Problematically in Ireland, the law is often very unclear as we have very little relevant statutory instruments, or departmental guidance to rely on. Thus, determinations often result in High Court litigation in order to decipher where exactly the correct balance lies in respect of individual cases. This is a huge financial burden on the State.

Often, our government looks to the UK position for guidance. We note that the UK Border Agency is currently a "major overhall of the Immigration system". It was announced on the 13th July last that the Agency is commencing a consultation process with the aims of  “stopping abuse, promoting integration and reducing burdens on the taxpayer.”

Some of the proposals of this consultation group are as follows;

• defining more clearly what constitutes a genuine and continuing marriage, to help identify sham and forced marriages;
• introducing a new minimum income threshold for sponsors of partners and dependants, to ensure that family migrants are adequately supported as a basis for integration
• extending the probationary period before partners can apply for settlement in the UK from 2 years to 5 years,
• exploring the case for making 'sham' a lawful impediment to marriage in England and Wales, and for giving the authorities the power to delay a marriage where sham is suspected;
• working closely with local authorities to ensure that vulnerable people are not forced into marriage; and
• reviewing the full right of appeal for family visitor visas, and inviting views on whether there are circumstances (beyond race discrimination and human rights grounds) in which an appeal right should be retained.

We wonder will our own government be following in a similar vein in respect of some of these proposals in the long pending Immigration and Residence Bill?

Further information on these proposals can be found at the UK Border Agency website.

Brophy Solicitors