The penalty for a sham marriage in the UK depends on how the case is treated. Some cases remain within the immigration system and lead to Home Office action. Others become criminal investigations, particularly where there are allegations of payment, false documents, identity fraud, organised facilitation or deliberate deception.

A sham marriage finding can affect a person’s immigration position immediately. It may lead to problems with existing status, future applications, entry clearance or removal action, and it can also prevent a proposed marriage or civil partnership from proceeding while the Home Office investigates. If the matter becomes criminal, the consequences become more serious still, with the risk of interview under caution, arrest, prosecution and, in the most serious cases, imprisonment.

Here, the criminal defence solicitors at Tyler Hoffman explain what penalties can follow a sham marriage finding, when the matter can move from a Home Office investigation into a criminal case and how early legal advice can influence the direction of a case.

How does a sham marriage investigation begin?

A sham marriage case will often begin as an immigration matter. This may happen before the marriage or civil partnership takes place, usually after notice has been given and the proposed marriage or civil partnership has been referred to the Home Office under the referral and investigation scheme.

The Home Office may extend the notice period where the case falls within the scheme and there are reasonable grounds to suspect that the proposed marriage or civil partnership is a sham. In practical terms, this can happen where one or both parties is not exempt from the scheme and the authorities are concerned that the relationship is not genuine and that the marriage or civil partnership may be intended to circumvent UK immigration controls.

At that stage, the Home Office may delay the proposed marriage or civil partnership while enquiries are made. It may ask for further evidence, arrange interviews, compare the parties’ accounts and review immigration history. If the Home Office concludes that the relationship is not genuine, the immediate consequences can include refusal of an application, refusal of entry clearance, cancellation or curtailment of immigration status, further scrutiny of future applications and removal action.

When does it become a criminal matter?

The case can escalate where the authorities believe there is more than a non-genuine relationship. That may happen if they allege that one or both parties entered the marriage or civil partnership to circumvent UK immigration controls, or if there is evidence said to show payment, false documents, identity fraud, coercion, facilitation or organised criminal activity.

At that point, the matter will become a criminal investigation. Immigration Enforcement may become involved, there may be enforcement visits, and the parties may be asked to attend an interview under caution. If the evidence is treated as showing criminal conduct, the case can result in prosecution for offences such as fraud, assisting unlawful immigration, identity document offences, conspiracy or facilitation.

A criminal case brings a different level of risk. If convicted, a person may face a criminal record, financial investigation or confiscation where payment or benefit is alleged. In serious cases, a prison sentence may follow.

For these reasons, we strongly advise you to seek legal advice should you believe you are under risk of such an investigation. In those early stages, the way you submit documents, handle interviews and explain inconsistencies can affect whether a matter remains an immigration investigation or develops into a criminal case.

Why there is not one single sham civil partnership or marriage penalty

Sham marriage is primarily an immigration law concept. It is used to describe a marriage or civil partnership said to have been entered into for immigration advantage, where there is no genuine relationship between the parties.

That means the first issue is often whether the Home Office considers the relationship to be genuine and subsisting. If the Home Office makes a sham marriage finding, it can use that finding when deciding immigration applications, immigration status and enforcement action.

Criminal penalties are different. They depend on whether a separate criminal offence is alleged and proved. There is no single criminal charge called “sham marriage”. Instead, criminal charges may arise from the conduct said to surround the marriage, such as false representations, false identity documents, assisting unlawful immigration or conspiracy.

The penalty will therefore depend on the facts. A person alleged to be a party to a non-genuine marriage will not necessarily be treated in the same way as a person alleged to have organised multiple sham marriages, supplied false documents or received payment for arranging a marriage.

What does the Home Office have to show?

Before serious consequences follow, the authorities need a proper basis for saying that the marriage or civil partnership is a sham.

Under sections 24 and 24A of the Immigration and Asylum Act 1999, a sham marriage or sham civil partnership may arise where:

• One or both parties is not a relevant national
• There is no genuine relationship between the parties
• Either or both parties enter into the marriage or civil partnership for the purpose of circumventing UK immigration controls

The issue is not whether a marriage certificate exists. The Home Office will look at the purpose of the marriage or civil partnership, the substance of the relationship, and whether it has been used, or is intended to be used, to obtain an immigration advantage.

A relationship can be placed under scrutiny even where the parties say it is genuine. That does not mean the Home Office is right. It means the accused party needs the advice of a solicitor who is experienced in these matters, and who can organise the evidence carefully from the start.

What happens during a sham marriage investigation?

A sham marriage investigation can begin before the marriage or civil partnership takes place. Where a proposed marriage or civil partnership is referred to the Home Office, the notice period may be extended while further enquiries are made. A relevant registration officer may raise reasonable suspicions, and the Home Office may decide to investigate whether the proposed marriage or civil partnership is a sham.

During the investigation, the Home Office may ask for documents, contact details and further evidence. Interviews may be conducted separately so that the answers of each party can be compared. Immigration records may be checked, and officials may look at the timing of the relationship against a person’s immigration history.

If you are subject to this process, it is important you don't treat it as informal. Answers given in a Home Office interview, documents submitted during the investigation and any failure to comply with a notice without reasonable excuse can all affect how the matter develops. You should consult with a solicitor before any verbal or written communication with the authorities.

Where the case escalates, the person under investigation may later be contacted by Immigration Enforcement, police or a Home Office investigation officer. They may be asked to attend an interview under caution, either voluntarily or following arrest.

What evidence affects the outcome?

The Home Office will look beyond the fact that the parties intend to marry or have already married. It will assess whether the relationship is genuine and whether the marriage or civil partnership was entered into to obtain an immigration advantage. Relevant evidence includes:

• How and when the parties met
• Whether the relationship is genuine and subsisting
• Whether the parties live together, or why they do not
• Communication records
• Photographs and travel records
• Financial arrangements
• Shared responsibilities
• Witness statements from family members or friends
• Immigration history
• Previous applications and refusals
• Timing of the proposed marriage or civil partnership
• Consistency of answers in interviews
• Evidence said to show payment, arrangement or facilitation

Inconsistencies do not automatically prove a sham marriage. Couples may have different ways of describing events. There may be cultural, language, financial, family or immigration issues that explain arrangements the Home Office considers unusual.

The point is that those explanations need to be presented clearly by a solicitor, and supported by evidence. If the Home Office or prosecution is allowed to rely on gaps, assumptions or misunderstood context, the case may be treated more seriously than the evidence justifies.

What should you not do if you are under investigation?

If you are under investigation for a suspected sham marriage or sham civil partnership, your next steps matter.

You should not:

• Attend a Home Office interview without legal advice
• Submit documents without understanding how they may be interpreted
• Guess answers where you are unsure
• Delete messages, photographs, records or documents
• Ask others to change or create evidence
• Ignore Home Office notices
• Assume the matter is “only immigration”
• Assume inconsistencies will be understood without explanation

You should be clear with your solicitor from the outset. That includes your immigration history, previous applications, refusals, gaps in status, entry clearance, EU Settlement Scheme position, contact with the Home Office, and any documents or interviews that may need explanation. If your solicitor has all the correct information in front of them, it means they won't be taken by surprise as the investigation develops.