A sham marriage is a serious issue under immigration law in England and Wales. Where the Home Office suspects that a marriage or civil partnership has been entered into for immigration purposes rather than as a genuine relationship, Home Office marriage interviews, document checks, refusal of an application and cancellation of immigration status can follow.

In cases where there is suspicion of payment, false documents or organised facilitation, the matter may lead to criminal charges.

If you have been contacted by the Home Office, asked to attend a marriage interview, or told that your relationship is being investigated, read on. The criminal offence solicitors at Tyler Hoffman will explain how the Home Office assesses whether a relationship is genuine, what happens during a sham marriage investigation, and when criminal offences may arise. We will also explain what you can do to defend your position.

How does the law in England and Wales define a sham marriage?

A sham marriage is a marriage or civil partnership entered into for the purpose of gaining an immigration advantage, where there is no genuine relationship between the parties.

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 to circumvent UK immigration controls.

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

How does the Home Office assess whether a relationship is genuine?

Once a marriage or civil partnership is under scrutiny, the Home Office will look beyond the legal status of the relationship and consider how it operates in practice. This could involve Home Office marriage interviews, requests for documents, checks against immigration records and comparison of the answers given by each party. In some cases, the parties may be interviewed separately so the Home Office can assess whether accounts are consistent.

Relevant evidence may include:

•  How and when the parties met

•  Whether they live together, or have a clear explanation if they do not

•  How consistent answers are during Home Office marriage interviews

•  Communication records and contact history

•  Financial arrangements or shared responsibilities

•  Knowledge of each other’s personal circumstances

•  The timing of the relationship against the immigration history

•  Evidence from family members or others who know the relationship

You will not usually be placed under arrest while your marriage or civil partnership is being investigated by the Home Office. However, the process should not be treated as informal or optional. The Home Office will look closely at the evidence you provide and the answers you give. Discrepancies, missing documents or unusual arrangements may be treated as suspicious, even where there is an explanation. You should not assume that the Home Office will understand the context without it being clearly set out and supported by evidence.

For that reason, we strongly advise you to take legal advice before attending a Home Office marriage interview, sending a written response or submitting documents. Failing to engage without a reasonable excuse could affect whether the marriage or civil partnership is allowed to proceed and may also influence any later immigration decision.

What you say at this stage can affect whether the matter remains an immigration enquiry or develops into a criminal investigation. If the case is escalated, you may then be asked to attend an interview under caution with police or immigration enforcement officers, either voluntarily or following arrest.

Is a sham marriage a criminal offence?

There is no single standalone criminal offence called “sham marriage”. However, sham marriage cases can lead to criminal prosecution where the evidence suggests deception, dishonesty or assistance in circumventing immigration laws.

Depending on the circumstances, offences that follow from a sham marriage investigation could include:

•  Assisting unlawful immigration

•  Fraud by false representation

•  Possession or use of false identity documents

• Conspiracy offences

• Facilitation of illegal immigration and human trafficking

• Offences involving false statements or documents

Should criminal offences be alleged, the focus will turn to your role in the matter. The authorities will look at whether you were said to be a participant, organiser, facilitator or someone who benefited financially from the arrangement. Cases involving third-party organisers, repeated suspicious marriages or false documents are likely to carry greater risk. If you believe such charges may be levelled at you, it is imperative that you contact the team at Tyler Hoffman. We have extensive experience in this area of law, and the earlier you receive advice, the more opportunity we have to create a strong legal strategy that will defend your position, and avoid having your role being overstated.

 Read more on potential sham marriage sentencing guidelines.

What should you do if your marriage or civil partnership is being investigated?

 If you have been told that your marriage or civil partnership is under investigation, you should take the matter seriously from day one. You should never:

•  Attending any interview without first getting legal advice

•  Submit documents or written statements without a solicitor's guidance

•  Guess answers or provide information you are not sure about

•  Assume that inconsistencies will be understood without explanation

 You should always be clear with your solicitor. This includes your immigration history, previous applications, Home Office contact, earlier interviews, gaps in status and documents that may need explanation.

 With that information, the criminal offence solicitors at Tyler Hoffman can identify the key issues early, prepare clear responses, deal with potential concerns before they are misinterpreted, and ensure your position is presented accurately, and any allegations of a lead role in a conspiracy are minimised, if the matter develops into a criminal investigation.