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How are Sham Marriages perceived in the English Criminal Justice System?

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How are Sham Marriages perceived in the English Criminal Justice System?

‘We don’t have to like each other, we just have to get married’ spouts Andie MacDowell to Gerard Depardieu in the cult American 90’s movie Green Card  when she enters into a marriage of convenience with a Frenchman so he can obtain a green card and remain in the United States. In the Hollywood film, love eventually prevails and the couple face a grueling test by US immigration officers to test the truthfulness of their claims to be in a genuine marriage.

Marriages for gain – financial or otherwise – are a familiar concept. For centuries and more recently in modern times, marriages were motivated by material gain and not love, particularly amongst the English aristocracy. As Jane Austen wrote ‘Marriage is indeed a maneuvering business’.

Marriages to obtain the right to reside in a country or sham marriages are a well-known phenomenon in criminal law and in recent immigration history. What exactly are the implications of marrying to obtain a right to remain in the UK? The purpose of this article is to address the consequences of participating in a sham marriage and to consider whether the facilitators of such marriages are any less culpable when it comes to criminal law and punishment.

The law – s25 Immigration Act -

Section 25 of the Immigration Act 1971 governs an offence of assisting unlawful immigration, also known by criminal practitioners as ‘facilitation.’ Section 25 of the Immigration Act 1971 states that a person commits an offence if he:

1)    does an act which facilitates the breach of immigration laws;

2)    knows or has reasonable cause for believing the act facilitates a breach in immigration law; and

3)    knows or has reasonable cause for believing that the individual is not a citizen of the European Union.

Punishment and Criminal Sanction

Significant public policy underpins the sentencing framework for sham marriages. The current immigration Minister has reported that convictions and sentence must ‘send a clear message to anyone considering breaking our immigration laws that Britain is no longer a soft touch’. The result for criminal practitioners has been tougher sentences for defendants found to have participated or facilitated sham marriages.

Features which aggravate sentence include repeat offending, breach for financial gain, involvement of strangers rather than family members, a high degree of planning, the number of immigrants involved and the level of involvement of the offender.

In March 2013, sham marriages hit the headlines when a large scale operation was uncovered by police. The chief organiser, Ms Trang Thi Thuy Luu, used her connections as owner of three beauty salons in Preston, Chorley and Blackburn to entice locals into sham weddings between 2008 and 2010. It enabled her friends and family to successfully apply to the Home Office for visas to remain in Britain after sham marriage ceremonies.

The participants of these marriages and their facilitators were sentenced at Preston Crown court for entering into or witnessing sham weddings to keep Vietnamese immigrants in the UK. The sentencing ranged from serious custodial sentences to a suspended sentence of 2 years for a minor participant in the conspiracy.

The consequences of a marriage of convenience?

The Crown Prosecution Service will continue charging participants of sham marriages to maintain the integrity of our immigration system. The recent dicta from the CPS and the judiciary show that when it comes to sentencing practice for perpetrators the custodial threshold will be passed. The key to success in these cases is appropriate representation at the earliest stages of the investigation. It is vital that those accused of participating in sham marriages are properly represented by experienced criminal solicitors given that immediate custody and deterrent sentences are quickly becoming the only sentencing option for the courts.

It is more than likely that such cases will be charged as conspiracy if two or more persons are involved. Whilst on the whole it is more difficult for the Prosecution to successfully prove a conspiracy, it is usually the preferred charging option particularly in the large-scale cases where there are numerous defendants and the case involves multiple sham marriages.

At MPR Solicitors, we have the depth of experience and expertise to successfully defend large-scale conspiracy cases and have recently been successful in defending an individual charged with facilitating sham marriages securing an acquittal at Isleworth Crown Court.

We are also currently instructed in a 14 Defendant large-scale conspiracy to conduct sham marriages at Leicester Crown Court. The trial is likely to take place at the end of 2014.