Molina, R (on the application of) v The Secretary of State for the Home Department

A marriage of convenience may exist despite a genuine relationship. The decisive issue is whether the marriage is entered into with the sole aim of securing an immigration advantage. This differs from a statutory sham marriage, which requires both no genuine relationship and the relevant immigration purpose. A reasonable suspicion of a sham marriage may justify investigation and prevention of the marriage. Detention remains lawful where removal is intended and can reasonably be effected, despite judicial review proceedings or non-suspensive immigration applications.

The claimant, a Bolivian overstayer, challenged the prevention of his proposed marriage to an Italian national, his detention and removal directions. Immigration officers accepted that the couple had a relationship but concluded that the proposed marriage was intended to secure an immigration advantage. The claimant argued that the marriage could not be one of convenience where the relationship was genuine, that the investigation breached article 12 of the ECHR, and that his detention was unlawful under the Hardial Singh principles.

1. The register-office referral under section 24 of the Immigration and Asylum Act 1999 supplied reasonable grounds for suspecting a sham marriage. The referral was sufficient despite incomplete markings on the form. The statutory conditions for investigation under section 48 of the Immigration Act 2014 were met.
2. Article 12 of the ECHR permits reasonable investigation to determine whether a proposed marriage is one of convenience and permits prevention where that is established. It does not protect a marriage entered into solely to obtain an immigration advantage.
3. A sham marriage under section 24(5) requires no genuine relationship and the specified immigration purpose. A marriage of convenience has a different focus. It may exist despite a genuine relationship and without deception or fraud as to that relationship. The relevant question is the parties’ intention when marrying, including whether the sole aim is to gain an immigration advantage.
4. The Immigration Officer rationally assessed relevant inconsistencies concerning work, money, family knowledge, rent, daily routine and wedding rings. The decision-maker was not required to set out every item of evidence, provided the evidence was considered. The Secretary of State proved on the balance of probabilities that the proposed marriage was one of convenience.
5. Applying the Hardial Singh principles, detention was lawful. Removal was intended, detention remained reasonable, there was a reasonable prospect of removal within a reasonable period, and the Secretary of State acted with reasonable diligence and expedition. Removal need not be imminent. The residence-card proceedings were non-suspensive and the article 8 claim had been certified as clearly unfounded.
6. The removal directions were lawful and the judicial review claim was dismissed.