The Europeanization of Love. The Marriage of Convenience in European Migration Law

3.1 Union Citizens Directive

Of course, the right of family members to establish themselves with the Union citizen, irrespective of their nationality, using his or her right to free movement is nothing new and has been acknowledged from the earliest legislation of the Commission in 1968.¹³ In 1992, in Surinder Singh, the European Court of Justice determined that after a citizen had made use of the right to free movement and worked in another Member State of the eu, s/he could return to the country of citizenship with the tcn partner under the more favourable conditions of eu law.¹⁴ Nevertheless, these rights have become increasingly controversial as the family reunification policies in various Member States became increasingly restrictive. Member States came to view the Surinder Singh judgment as a means for couples to circumvent restrictive national migration policies, the so-called ‘eu route’ or ‘Europe route’. This is demonstrated by the Member States’ response to the cjeu cases Akrich and Metock. In the 2008 report on the implementation of the Union Citizens Directive, the Commission noted that eleven Member States had introduced prior lawful residence in another Member State as a condition for the right of residence for tcn family members of eu citizens in response to the Akrich judgment of 2003. In Akrich, a British woman married a Moroccan national, who had tried in vain to gain lawful residence in the uk. She moved to Ireland with the express intention of moving back with her husband after a six-month period, after which her husband could gain lawful residence as the spouse of an eu citizen.¹⁵ The British authorities, however, refused to grant a residence permit, because the husband had not had prior lawful residence. In Akrich, the Court introduced the additional condition of prior lawful residence. This judgment was probably also informed by the suspicion that the marriage of Mr. and Mrs. Akrich was one of convenience. The Court decided that the principle of free movement was not applicable when a Union citizen and tcn family member entered into a marriage of convenience in order to circumvent the provisions relating to entry and residence of tcns.¹⁶

However, the condition of prior lawful residence that was endorsed by the Court was no longer allowed after the Union Citizens Directive came into effect. Prejudicial questions were asked after an Irish High Court proceeding on four applications by tcns without legal residence whose requests to be granted residence with their British, German, and Polish wives were denied. This resulted in the Metock judgment of July 2008 in which the Court reversed the earlier Akrich judgment.¹⁷ In its judgment, the cjeu made clear that the condition of prior lawful residence was not in accordance with the Union Citizens Directive. Again, the Court mentioned marriages of convenience, although there was no indication that the marriages in Metock were not genuine. The cjeu indicated that the Directive did not prevent Member States from combating abuse of Community rights, including marriages of convenience. It did so in response to the claim by the Irish Minister of Justice that the pressures of international migration necessitated a control of migration at the external borders of the eu.¹⁸ Hence, controlling marriages of convenience was linked to the sovereignty of states to control migration as a means of maintaining sovereignty in regulating migration.

At the European level, in their observations submitted in the proceedings on Metock, Member States expressed their concern that Metock would allow tcns without legal residence to regularize their residence through marriage to an eu citizen.¹⁹ They expressed the same concern during a European Justice and Home Affairs meeting of 25 September 2008, where the Metock judgment was discussed, as well as in the European Commission report on the implementation of the Union Citizens Directive.²⁰

At the national level, the Metock judgment was also critically discussed, as ‘approving illegal migration through marriages of convenience’, in the words of the Danish Minister, who also announced that the Danish government would aim for an amendment of the Union Citizens Directive.²¹ Similar words were used by the British, Irish and Dutch governments.²²

It put the ‘Europe route’ and marriages of convenience on the European political agenda. In the conclusions of its report on the implementation of the Union Citizens Directive, the ec announced that abuse would remain a topic for discussions on the transposition of the Directive.²³ Subsequently, the 2009 guidelines to the Union Citizens Directive contained a more than two-page paragraph on marriages of convenience.²⁴ During this process, the ec aimed to objectify and set standards for control practices for marriages of convenience.

They did so in the guidelines to the Union Citizens Directive, that set certain limits to what was allowed in control practices, and provided a set of so-called ‘indicative criteria’ suggesting the possible intention of abuse of rights. In 2012, fraud and abuse of free movement were mentioned in the Strategic Action plan for eu action to migratory pressures. A Handbook on Marriages of Convenience was published in September 2014.²⁵ This Handbook specifically addresses marriages of convenience of eu citizens with tcn family members; it does not cover marriages between two eu citizens. Although the Handbook is not legally binding, its goal is helping Member States to ensure that their practices are based on the same factual and legal criteria and contribute to compliance with eu law.²⁶ The legal constraints on control practices set out in the Handbook will be discussed in more detail below. First, let us take a look at the debate on marriages of convenience within the context of the Family Reunification Directive.

3.2 Family Reunification Directive

The Family Reunification Directive became effective on October 3, 2005. The first prejudicial questions answered by the Court of Justice give some indication of the far-reaching implications of the Directive, as it gives tcns a right to family reunification, contrary to article 8 of the European Convention on Human Rights.²⁷ The implication is that the conditions allowed by the Directive have to be interpreted restrictively, because family reunification is the rule.²⁸ In 2010, this forced for instance the Netherlands to abolish its income requirement for family formation of 120 % of the minimum wage, introduced earlier in 2004, and lower the level to 100 % of the minimum wage.²⁹

The Commission report on the implementation of the Family Reunification Directive published in 2008 paid only limited attention to marriages of convenience. The report noted that every Member State had rules to prevent marriages of convenience and critically discussed control practices in Austria and the Netherlands, where systematic checks were taking place: in Austria, the registry office was obliged to inform the Aliens Police about every marriage involving a tcn and in the Netherlands every marriage involving a tcn without permanent residence required the prior advice of the Chief of Police.³⁰ The Commission did not bring any infringement procedures against Member States, and decided against amendments to the Directive, apparently because it feared that proposals by Member States would lower the level of family reunification rights. Instead, it started a Green paper process, to gather options and information on the application of the Directive from Member States and ngos. During this process, Denmark, the Netherlands and the United Kingdom pressured the European Commission to pay due attention to fraud and abuse. They pleaded for the instalment of a commission to study these issues, exchange of information between Member States and lowering the burden of proof.³¹ The Dutch also suggested tackling the Europe route by making all tcn family members, including those with an eu spouse, fall within the scope of the Family Reunification Directive.³² At this point, the ec tried to resist this pressure, arguing that Member States had not been able to provide statistics to support their claims of high numbers of fraudulent marriages.³³

Nevertheless, efforts to develop rules and practices combating fraudulent marriages were further stepped up and the position of the ec started to shift gradually under the persistent pressure from Member States. In its guidance for application of the Family Reunification Directive published in 2014, the Commission spoke for the first time of the need to take ‘firm action’ against abuse and fraud.³⁴ Furthermore, the Commission stated that it was allowed to make a distinction between family reunification and family formation in assessing cases, although the cjeu ruled that the Family Reunification Directive did not allow such a distinction.³⁵

Finally, the Commission argued that the Handbook on Marriages of Convenience might serve as guidance for all three categories of marriages of convenience it had distinguished: between a tcn and another tcn residing in the eu, a tcn and eu national exercising the right to free movement and—remarkably since this category is not covered by eu law—between a tcn and own national. The following paragraphs take a closer look at the legal constraints on control practices for marriages of convenience set out in the various documents.

3.3 Legal Constraints of Directives, ec Guidelines and Handbook

Legal constraints are formulated in the Directives themselves, although more clearly in the Union Citizens Directive than the Family Reunification Directive. Article 35 of the Union Citizens Directive refers to the principles of proportionality and procedural safeguards in connection to refusal of residence on grounds of a marriage of convenience. For the Family Reunification Directive, the general provisions of articles 17 and 18, which require individual assessment and procedural safeguards, are relevant.

In the guidance to the Union Citizens Directive, the Commission has formulated several limitations. First, it is pointed out that the assessment of whether Community law has been abused must be carried out within the framework of Community law and not national law. Measures taken by Member States may not deter eu citizens and their family members from using their right to free movement or encroach on their legitimate rights and may not undermine the effectiveness of Community law. Discrimination on grounds of nationality is not allowed and fundamental rights, specifically the right to marry, respect of private and family life, rights of the child, prohibition of discrimination, effective remedy and defence, as included in the eu Charter of Fundamental Rights and the European Convention on Human Rights need to be protected.³⁶

Second, it points out that individual cases may be investigated only in cases of well-founded suspicions of abuse.³⁷ Thus, systematic checks of all cases or certain categories of cases are not allowed. Member States may rely, however, on previous analysis and experience showing a clear correlation between proven cases and certain characteristics of such cases. The principles of proportionality, non-discrimination as well as the burden of proof are of importance here.

4.1 Self-identification

The Court in the A, B and C decision determined that self-identification by the asylum seeker of being homosexual was a starting point for further investigation, but not sufficient. Comments on the case referred to the ECtHR case of Kuck, in which it was determined that sexual self-definition—in this case by a transgender person—was the core of private life and could not be cast in doubt by the authorities.⁴⁹ The ECtHR regarded this in light of the principles of personal autonomy and human dignity. The ECtHR also considered that science was not definite about the cause and nature of transgender and, therefore, authorities could not replace the notion of what it meant to be transgender with their own general assumptions. Middelkoop in his annotation to A, B and C derives from the Kuck case the notion that only the individual has the right to define his or her own identity, and that sexuality is so subjective and diverse that it is impossible to determine objectively.⁵⁰ Because of the different approach of the cjeu, Middelkoop concludes that this Court attaches less value to the right to private life than the ECtHR. Another, in my view more plausible explanation, is that the right to private life is attached to a different value within the context of migration law. As already argued, different norms on family and private life are used within and outside the context of migration law.⁵¹ In a migration law case, even the ECtHR is likely to have ruled differently.

The parallels with marriages of convenience are obvious. As already mentioned, the definition of a marriage of convenience is that its sole purpose is to acquire the right to free movement or a residence right that would otherwise not exist. Although the definition does not spell out what the ‘right’ motive for a marriage is, in practice, the common assumption is that it should be about love.

Some Member States employ a definition that is broader than those in the Directives. For example, France and Belgium define a marriage gris (grey marriage) as a marriage in which the foreign partner betrays the other partner by letting him or her believe it is about love, while the foreign partner only has a residence permit in mind.⁵² In a letter to the Dutch Parliament, the Deputy Minister claims to have succeeded in broadening the definition of marriages of convenience in the Handbook from the ‘sole aim’ to the ‘primary aim’ to acquire residence rights.⁵³ Indeed, the Handbook states:

A marriage by deception arises when the eu spouse is deceived by the non-eu spouse to genuinely believe that the couple will lead a genuine and lasting marital life. Such marriage is a marriage of convenience and should be tackled accordingly, with due regard to the innocence of the eu spouse. In such marriages, the eu citizen is not a willing accomplice, but a victim guilty only of good faith.⁵⁴

It is remarkable that the ec defines marriages of convenience to include the marriage gris as it is the definitions in the Directives that count and, according to the cj eu, concepts of the Directive have to be interpreted restrictively and according to European law and not national law.⁵⁵ Thus, it is not permissible for Member States to use such broader definitions of ‘marriage gris’ or primary aim.

Just as declaring oneself to be homosexual is not enough for asylum seekers, declaring ‘love’ is not enough for couples, but just the starting point for investigation. In order to be labelled a genuine couple, the partners need to demonstrate certain characteristics and behaviour in order to convince authorities of their genuine love for each other.

The eu Handbook describes what a genuine couple looks like: a genuine couple is more likely to have no residence issues, have a close relationship for a long time, share on equal footing parental responsibility for children, have a common domicile or household, a serious long-term financial commitment, and a long lasting marriage. This description of a genuine couple includes all aspects of the pure relationship or romantic marriage ideal and techniques of love as analyzed by the academic literature.

In practice, the couple needs to convince the immigration official that they are really in love, but not only by declaring love. This can be illustrated by a 2013 Dutch court case, in which the civil registry had refused to conclude the marriage between an Egyptian man and a Hungarian woman. The registry office had based the refusal on the ground that the partners did not share a common language and that the ‘personal attitude and behaviour’ of the couple had raised serious doubts about their marriage, without explaining what this conspicuous behaviour entailed. It seems to hint at what Lavanchy describes in her study on Swiss registry officers, who often claimed that it was ‘obvious’ which couples had a marriage of convenience, something they could see, know immediately by looking at couples, based on gut feelings.⁵⁶ In the Dutch court case, the couple explained their love, but also their choices and behaviour:

Applicants claim that they have an affective relationship. They also claimed that the woman had been pregnant for a few months and that the husband had legally acknowledged the unborn baby. Applicants think it is relevant that the man obtains a residence permit so that he can acquire the right to work and take care materially of the woman, who has because of her age and English language ability, no good labor market position.(…) The woman has declared that during her stay in Hungary she realized that she wanted to share her life with the husband. (…) At the court session the couple maintained that they love each other and this is the reason they want to marry (translation from Dutch by author).⁵⁷

The family judge in this case concluded that, indeed, the woman spoke no English, no Dutch and no Arabic, so that it could be assumed that the verbal communication between the partners was limited. According to the court, however, this was not an impediment to marry and it was not up to the court to judge the quality of the relationship between the partners.⁵⁸

In British and French control practices, authorities look for evidence of the performance of a genuine wedding ceremony: wedding rings, wedding pictures in the living room, wedding dresses and wedding parties. Cheap suits, lack of wedding rings or a low number of guests are all understood as hints of marriages of convenience.⁵⁹

In short, self-identification, in the form of a declaration of love is not enough. A couple has to be able to produce a convincing narrative about their love, as well as perform their love in certain ways considered ‘normal’ for genuine couples.

4.2 The Role of Stereotypes

Research on homosexual asylum seekers has demonstrated that the determination of homosexuality often depends on the use of stereotypes about homosexual behaviour. The first question is whether homosexuality is about sex or identity. The ‘real’ homosexual, it seems, not only has homosexual sex, but also has a homosexual identity. It is also assumed that homosexuals go through a personal struggle, a psychological process of accepting their identity. This seems all the more important when an asylum seeker comes from a Muslim majority country ‘where homosexuality is not generally accepted.’ Asylum seekers are also expected to have knowledge of the homo-scene in the country of residence as well as the country of origin, e.g. places to meet, organizations, or tv personalities.⁶⁰

In A, B and C, the European Court determined that questions about certain stereotypes on homosexuality could be useful in some circumstances, but also problematic. Middelkoop discusses the problem of using such stereotypes: they may become too important in the interview, may make the asylum system vulnerable to misuse, because anyone can learn by heart the ‘correct’ answers, and because individuals may present themselves differently, anticipating these stereotypes, as a form of self-disciplining.⁶¹

As we have seen, the ec guidelines and Handbook on Marriages of Convenience explicitly warn against stereotyping. They also warn against discrimination on grounds of nationality. Nevertheless, in various European countries, certain combinations of nationalities are considered suspect, e.g. in the uk: British and Pakistani, Nigerian or Indian, Portuguese or Polish sponsors with Pakistani.⁶² In the Netherlands, Poles with Egyptians and Bulgarians with Turks are mentioned as ‘combinations of nationalities’ that are ‘not obvious’.⁶³ What is more, in several Dutch court cases, the Dutch Immigration Services mention ‘cultural and religious differences’ between partners as an indicator of marriages of convenience.⁶⁴ In other words: it seems that (ethnically) mixed couples are more often framed as marriages of convenience than ethnically homogenous couples. Lavanchy is one of the few authors who expressly addresses this issue.⁶⁵ Deviance, one of the aspects of the normative marriage ideal, involves not only differences in age or language, but also cultural and ethnic or racial differences. According to Lavanchy, the seemingly ‘objective’ marker of nationality relates to physical appearance and racialised notions of how partners should match.⁶⁶

Control practices are also highly gendered, as several authors have noted. Messinger observes that in Austria, especially marriages between Austrian women and tcn men are investigated, although marriages between Austrian men and tcn women are much more frequent.⁶⁷ A similar pattern can be found in other countries; Norwegian practice demonstrates that marriages of convenience are attributed more to Norwegian women with foreign men than the other way round.⁶⁸

Although the ec guidelines warn against stereotyping they also leave room for control practices built on earlier experiences. There is a tension here, as many immigration officials would claim that it is their ‘experience’ that marriages of convenience can be found more frequently among female sponsors, or among Egyptians. When do such practices based on ‘experience’ amount to discrimination on the basis of race/nationality and/or gender?

Member States seem to be aware of the problem and argue that their practice is not discriminatory. The British government defends the use of risk profiles that are based on, among other factors, nationality and ethnicity as non-discriminatory because there are, in their view, objective justifications and not every couple is subjected to further investigation.⁶⁹

In the Netherlands, a group specifically targeted is Egyptians who marry an eu citizen at the Egyptian embassy. This control practice was based on information from the Ministry of Foreign Affairs about an increasing number of marriages concluded at the Egyptian embassy. It almost exclusively involved Eastern European women and as an indicator that these marriages were marriages of convenience, it was mentioned that the couples often did not share a common language, and that after the marriage an application for the right to free movement was lodged. The Minister claimed that this did not amount to systematic checks of a particular group of migrants, as only those marrying at the Egyptian embassy were checked, and not all Egyptians.⁷⁰ The Dutch Advisory Committee on Migration Affairs has argued that risk profiles are being used in the control practices for marriages of convenience.⁷¹

It is up to the courts to decide whether these arguments are convincing. Nationality or ethnicity may not be the only factor taken into account, but putting forward the lack of common language, or the application for a residence permit, hardly seems convincing evidence as explained by the European Commission. Is it really justified to check all marriages involving Egyptians without residence status and not all Americans without residence status?

Furthermore, the Dutch practice of reference to cultural and religious differences between partners as an indicative criterion for marriages of convenience is, in my view, an unacceptable form of stereotyping of mixed couples that amounts to discrimination. There is no reason why mixed couples would be more prone to abuse and fraud than other, non-mixed couples, and why cultural and religious differences between partners would be an indicator of that.

4.3 Investigation Techniques and Human Dignity

In the A, B and C case, the Court determined that some techniques of investigation were not permissible, referring to articles 1 (human dignity) and 7 (right to private life) of the eu Charter of Fundamental Rights. The Court prohibited detailed questions about the arrangement of sexual practices; which questions are considered too detailed, however, are not clear. The Court also prohibited the use of (physical and psychological) tests and visual media registering sexual behaviour, even if the asylum seeker offered this material voluntarily. Sexual orientation is part of human dignity and human dignity cannot be given up voluntarily, the Court argued.⁷²

As already mentioned, the Commission warns that control practices for marriages of convenience should not violate human dignity and that questions cannot be degrading or humiliating. On the other hand, the Commission has also indicated that couples can be required to fill out a questionnaire in order to filter out suspicion, and that couples are obliged to cooperate.

The Dutch Immigration Services’ application form for a residence permit or long-term visa for family reunification in cases of non-marital relationships, includes a list of twelve questions, used to filter out suspicious cases:

• 1. How long have you known your partner? Mention day, month and year.
• 2. How did you come into contact with each other?
• 3. Where did you meet your partner? Mention name and precise location.
• 4.1 If you met through the internet or family, have you met each other in person?
• 4.2 If so, when and where? If not, why not?
• 5. How long have you had a love relationship? Mention day, month and year? How did this happen?
• 6. How did you maintain the relationship from the start? Please provide as much evidence as possible, such as letters, e-mails, photographs and plane tickets.
• 7.1 Has your partner visited the Netherlands before? If so, when? Mention day, month and year.
• 7.2 What was the reason for this stay?
• 7.3 In what town and where did your partner stay?
• 8. Have you had a relationship before with someone who came from abroad to the Netherlands for you? If so, with whom and when?
• 9. Has your partner had a previous relationship with someone from the Netherlands? If so, with whom and when?
• 10.1 Does you partner have minor children?
• 10.2 If so, what are their names, ages and where are they now?
• 11.1 Will the children travel to the Netherlands with your partner?
• 11.2 If not, why not? Who will take care of the children when your partner leaves for the Netherlands?
• 12. Are you related to your partner? If so, what is the family relationship?⁷³

All applicants for residence for a partner relationship (not marriage) have to answer these questions, irrespective of the nationality of the tcn partner. The form explains that if the information and evidence provided is not extensive enough, the application will be rejected.

The question is whether this goes beyond the requirement of a ‘duly attested’ durable relationship (art. 3 section 2 sub b Union Citizens Directive).

For marriages, such questionnaires would amount to systematic checks that are not allowed. In a British court case, an Armenian woman married to a Greek national for twelve years and who had two children with him, saw her request for a short uk visit rejected because she did not provide wedding photographs, or proof that they shared a household. It took eighteen months and three hearings before the visa was granted. The Upper Tribunal thought the belief that there was a marriage of convenience in this case ‘ludicrous’ and decided that documents other than those mentioned in article 10 of the Union Citizens Directive could only be required if there were grounds for suspicion.⁷⁴

There are indications that some Member States’ interview practices digging into the personal and sexual lives of couples may harm human dignity. ngos in France report questions about the couples’ sex life: has the marriage been consummated, how often do you have sex, what was the date of the first and the last sexual intercourse?⁷⁵ Dutch case law indicates that questions are being asked about whether the couple slept together on their first date.⁷⁶

Interview techniques may also be humiliating more generally. Several authors report that couples find the control practices humiliating and degrading.⁷⁷ In Belgium, media reports indicate that immigration police comment in derogatory terms on the physical appearance and character of Belgian women who want to marry a foreign husband:

Interviewer: ‘Should one not try to change the mind of such a woman?’

Policewoman 1: ‘That is easier said than done. Women in love, that is the most terrible thing, they are not open to reason. Many tears ran during such a conversation. I always have a box of Kleenex on my desk, at the end of the week it is empty.’

Policewoman 2: ‘I am harsh. “Madam”, I say, “look at these pictures. Do you really believe that this hunk is in love with you, while there are so many young, handsome girls round?” But like she says: they don’t want to listen.’ (translation from Dutch by author).⁷⁸

In Norway, the term ‘hormonal disturbances’ is en vogue to typify the same kinds of relationships between (older) ethnic Norwegian women and tcn men.⁷⁹ The question of how these understandings, based on social norms and stereotypes about female and migrant sexuality, inform control practices deserves further research.