Sham marriage is primarily dealt with under immigration law in England and Wales. It does not operate as a standalone criminal offence. Where concerns arise, it can result in refusal of an application, cancellation of existing leave and long-term consequences for a person’s ability to remain in or re-enter the UK. Where there is evidence of deception or facilitation of unlawful immigration, the same circumstances can also trigger a criminal investigation and, where established, lead to prosecution with the risk of imprisonment.

Allegations typically arise during immigration applications, marriage notifications or Home Office checks. Where concerns are identified about the nature of a relationship, the matter may be referred for further enquiries. This can lead to formal investigation, including interviews, document checks and scrutiny of an applicant’s immigration history.

In this article, the criminal defence solicitors at Tyler Hoffman explain how the law defines a sham marriage, how such cases are investigated, and when criminal liability may arise. We also outline how legal advice at an early stage can affect how a case develops.

How does the law define a sham marriage?

The law does not create a standalone criminal offence of sham marriage. Instead, the concept is defined within immigration legislation and applied by the Home Office when assessing whether a relationship is genuine.

Under section 24 of the Immigration and Asylum Act 1999 and subsequent amendments, including provisions introduced by the Immigration Act 2014, a sham marriage or civil partnership is one entered into for the purpose of obtaining an immigration advantage.

In practice, the Home Office will treat a relationship as a sham where:

• The parties do not intend to live together as a genuine couple
• The relationship is not genuine or subsisting
• The marriage or civil partnership has been entered into to circumvent UK immigration controls

The Home Office does not need a single decisive piece of evidence to reach this conclusion. Once an investigation is triggered, the Home Office will consider the available material as a whole to determine whether the relationship meets the required legal standard of being genuine and subsisting.

What is meant by a ‘subsisting and genuine’ relationship?

For immigration purposes, a relationship must be both genuine and subsisting. A genuine relationship is one where the parties intend to live together as partners. A subsisting relationship is one that continues in practice after the marriage or civil partnership has taken place.

The assessment will focus on the intention of the parties at the time the marriage is entered into, and whether the relationship continues in practice.

This often involves:

• Comparing answers given by each party during marriage interviews
• Reviewing communication records and the history of contact
• Examining living arrangements and whether they are consistent with a shared relationship
• Analysing financial arrangements and any evidence of interdependence
• Considering immigration history and the timing of the relationship

Decisions are frequently based on patterns, inconsistencies, or gaps in the evidence rather than direct proof of intent. Where concerns arise, the Home Office may rely on these factors to conclude that a relationship does not meet the required legal standard.

For that reason, the way information is presented, and how any discrepancies are addressed, can have a direct impact on how the matter progresses. If you have been contacted by the Home Office, asked to attend an interview, or believe your relationship is under investigation, you should seek advice from a criminal defence solicitor before engaging with investigators.

When can a sham marriage or civil partnership lead to a criminal offence?

A finding that a marriage is not genuine does not, by itself, result in a criminal charge. In many cases, the outcome is limited to immigration action, such as refusal of an application or cancellation of leave.

Criminal liability may arise where there is evidence of:

• Deception in relation to immigration status or applications
• Dishonesty in the information provided to the authorities
• Facilitation of unlawful immigration, including arrangements made to assist another person to remain in the UK

Depending on the circumstances, this may lead to offences such as:

• Assisting unlawful immigration
• Immigration-related fraud offences
• Conspiracy or facilitation offences

The distinction between immigration enforcement and criminal prosecution will depend on the nature of the evidence and the role of those involved. Where there is evidence of organised activity, financial gain, or deliberate arrangements to circumvent immigration controls, the matter is more likely to escalate to criminal charges and serious penalties including prison and fines.

How are suspected sham marriages investigated?

Suspected sham marriages are usually identified at the point a marriage or civil partnership is notified, or during immigration checks where concerns arise about the relationship.

Under the marriage referral scheme, registrars have a legal duty to refer certain marriages or civil partnerships to the Home Office where there are reasonable grounds to suspect the relationship is not genuine. This triggers the Home Office investigation scheme.

At that stage, individuals will usually be notified that the marriage has been referred for investigation. The notice period may be extended, and both parties could be required to attend interviews, provide documentation and respond to detailed enquiries about the relationship.

The direction of the case from here on in will depend on the information provided to the Home Office, including the evidence submitted and the answers given during any interview. The Home Office may decide to: 

• Refuse an application
• Continue monitoring or carry out further enquiries
• Escalate the matter to a criminal investigation where the evidence indicates deception or organised activity

The steps you take at this stage, including how questions are answered and what evidence is provided to Home Office investigators, will directly influence how the case progresses. For that reason, you should speak to the Tyler Hoffman team the moment you become aware of an investigation.

What should you do if your marriage is under investigation?

If you suspect your marriage or civil partnership is under investigation, it is important to take action now.

You should:

• Seek legal advice before attending any interview
• Avoid providing statements without advice
• Ensure any documentation is reviewed properly by a solicitor before you submit or sign anything

Our team will advise on how to respond to the Home Office and take control of any subsequent criminal investigation if the matter progresses further. We will:

• Advise before marriage interviews or Home Office enquiries
• Prepare responses to questions and document requests
• Review the basis on which suspicion has arisen
• Identify inconsistencies or evidential gaps that mean the investigation is unsound
• Make representations prior to immigration decisions or charging decisions

Early legal advice allows your solicitor to establish your position before any interview or decision is made, ensure relevant evidence is properly presented to the Home Office, and respond to any concerns raised by investigators at an early stage.