Few legal means to restrict rise in bogus unions

Tue, Aug 17, 2010, 01:00

ANALYSIS:Despite evidence of numerous unusual trends, demoralised registrars have limited powers to block ‘sham marriages’, writes JAMIE SMYTH

GETTING MARRIED is meant to be one of the happiest days of your life when you solemnly pledge to love your partner for the rest of your days. But for an increasing number of multicultural couples in modern Ireland, marriage has become a vehicle used to win residency rights rather than signify any union or bond between them.

Dennis Prior, superintendent registrar for the Health Service Executive eastern area, says he has witnessed couples who cannot speak to one another and require two interpreters at their civil ceremony.

At interviews it often becomes clear a couple don’t know anything about one another even though they are apparently willing to pledge the rest of their lives to each other, says Mr Prior, who estimates up to 15 per cent of all civil marriages may be bogus.

Gardaí investigating the scams say these “sham marriages” are typically arranged by failed asylumseekers or former students from Asia or Africa who no longer have permission from immigration authorities to stay in Ireland.

EU citizens, usually young women from poor eastern Europe states, are paid €3,000-€5,000 to marry a non-EU national, to exploit an EU directive giving family members of EU citizens freedom to live in the union.

Department of Justice statistics show the number of non-EU nationals applying for residency based on marriage to EU citizens has doubled since 2006. An analysis of the figures highlights very unusual trends with Pakistanis making 1,235 applications since 2002 – 393 of which are based on marriage to Latvians.

Nigerians and Indians also make disproportionately large numbers of applications for residency based on marriages to EU citizens, typically from states such as Latvia, Lithuania and Poland.

The scam is demoralising registrars. It also makes a mockery of the Constitution’s pledge for the State to “guard with special care the institution of marriage, on which the family is founded, and to protect it against attack”. But tackling the phenomenon is very complex given the difficulty in distinguishing between “sham marriages” and regular marriages and a requirement to respect people’s privacy. The State must also meet its responsibilities under EU law to guarantee free movement to the spouses of EU citizens.

The Government has unsuccessfully lobbied EU states to amend the EU directive on free movement to enable it to restrict the residency rights of non-EU spouses. In fact, new guidance from the European Commission now specifically prevents national authorities from carrying out “systematic” checks based on the nationality of the people applying for residency rights based on marriage. However, this guidance does not prevent an EU member state investigating marriages it believes to be shams or from introducing national laws to protect the institution of marriage from abuse.

Gardaí have launched an investigation into sham marriages, called Operation Charity, which has led to several arrests linked to the offences of bigamy, evading deportation orders and false documentation. They have also begun to issue written objections to registrars when they feel a scheduled marriage may not be genuine.

The operation has had some high-profile successes, including the conviction of a 27-year-old Pakistani man earlier this year for custody of false documents. Gardaí also objected to his scheduled marriage to a 19-year-old from Latvia.

But the Garda investigation must tackle the problem indirectly by targeting criminal offences such as bigamy, false documentation or being in the State illegally.

In the Republic it is currently not illegal to take part in a sham marriage for immigration purposes, or to accept cash in return for getting married. Tough new rules proposed in the Immigration Bill have been watered down in a recent draft of the Bill, although it would still define a sham marriage for the first time in law.

This leaves registrars in a very difficult position. The legislative grounds upon which they can refuse to conduct marriages in the Civil Registration Act are limited and say nothing about the typical indicators of a sham marriage such as a bride and groom not speaking a common language.

“There is a fear that we could be accused of targeting certain groups and we are mindful that we can be held responsible for holding up a marriage,” says Mr Prior, who notes that couples facing objections have employed solicitors to take on their cases.

He says he fears many of the Garda objections to marriages could end up being overruled by registrars, who lack the tools to block marriages of convenience.

The General Registry Office and the Department of Social Protection have held meetings to determine a list of indicators of a sham marriage that can be given to registrars. They also discussed the possibility of devising a more detailed interview process for couples before they marry.

This interview could include questions on when a couple first met or what they eat for breakfast if they happen to live together. Registrars may also be able to ask to see photographs of the couple together, according to Prior.

“If this was implemented I feel it would make a huge difference,” he says.

Who marries who
Applications for residency in Ireland based on EU treaty rights in the first six months of 2010

Nigerian 167

Nationality of spouse

British 35

Polish 25

Dutch 20

German 13

Latvian 13

Others 61

Pakistani 253

Nationality of spouse

Latvian 95

British 41

Lithuanian 25

Polish 18

Estonian 17

Others 57

Brazilian 79 

Nationality of spouse

Italian 37

Polish 18

Portuguese 10

Spanish 8

British 6

Indian 78

Nationality of spouse

Latvian 27

Polish 20

Irish 5

British 4

Hungarian 4

Others 18