The Concept of Marriages of Convenience in EU Free Movement Law: EU and UK Perspectives: Immigration and Asylum Law and Policy in Europe, cartea 53
Autor Aleksandra Ancite-Jepifánovaen Limba Engleză Hardback – 24 oct 2024
In this book, Aleksandra Ancite-Jepifánova pursues two interrelated aims. First, she evaluates the compatibility of EU-level measures addressing marriages of convenience with EU free movement law by focusing on the Citizenship Directive. Second, she examines the regulation of the issue in UK law in so far as it concerns the residence rights of EU citizens and their family members, both pre-and post-Brexit.
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Specificații
ISBN-13: 9789004499256
ISBN-10: 9004499253
Pagini: 312
Dimensiuni: 155 x 235 mm
Greutate: 0.72 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria Immigration and Asylum Law and Policy in Europe
ISBN-10: 9004499253
Pagini: 312
Dimensiuni: 155 x 235 mm
Greutate: 0.72 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria Immigration and Asylum Law and Policy in Europe
Notă biografică
Aleksandra Ancite-Jepifánova, Ph.D., is an interdisciplinary scholar working in the field of European and comparative migration, asylum and nationality law and policies. She received her doctorate in law (2021) from Queen Mary University of London.
Cuprins
Acknowledgements
List of Tables
Abbreviations
Introduction
1 Setting the Scene: Marriages of Convenience and EU Citizens’ Right to Family Reunion
2 Limitations
3 Sources
4 Terminology
4.1‘Marriages of Convenience’
4.2‘Citizen’ v ‘National’
4.3‘Family Reunion’ v ‘Family Reunification’
5 Chapter Outline
Part 1
EU and European Human Rights Law
1Right to Family Reunion in EU Free Movement Law
1 Introduction
2 From ‘Market Citizen’ to Union Citizen: Evolution of the Concepts of Free Movement of Persons and EU Citizenship
2.1On the Way towards the Citizenship Directive
2.2Citizenship Directive
3 Right to Family Reunion under the Citizenship Directive
3.1Rights of Family Members as Derivative Rights
3.2Who Is Considered a Family Member?
3.3Married Couples as a Privileged Group
4 Derogations from Free Movement Rights
4.1Public Policy, Public Security and Public Health
4.2Abuse of Rights
5 Conclusion
2Right to Family Reunion as a Source of Tension between the cjeu and Member States
1 Introduction
2 Treating Nationals Worse than Foreigners: The Phenomenon of Reverse Discrimination
3 The Substance of Marriage
4 Returning Member State Nationals
5 EU Citizens Forming Families in the Host Member State
6 Visas for Non-EU Family Members Travelling to the UK
7 Family Reunion Cases Outside the Scope of the Citizenship Directive
7.1Different Forms of Free Movement
7.2Static EU Citizens
8 Marriages of Convenience as the Only Form of Abuse of Rights?
9 Conclusion
3After Metock: Marriages of Convenience as an Apple of Discord between the EU and Member States
1 Introduction
2 All You Need Is Love? The Controversial Notion of Marriages of Convenience
3 The Judgment in Metock: Opening a Pandora’s Box
4 Exploitation of the Vulnerable? EU-8 Nationals in Focus
5 UK and Three Other Member States Demanding Change
6 Pre-referendum Settlement: An Unprecedented Concession to the UK
7 Conclusion
4Europeanisation of Relationship Standards? Marriages of Convenience in EU Soft Law
1 Introduction
2 EU Soft Law in a Nutshell
2.1The Concept of European Soft Law
2.2General Rule: No Derogation from Hard Law
2.3Legal Effects of EU Soft Law at the National Level
3 EU Soft Law on Marriages of Convenience
3.1Commission Guidelines and Handbook as Interpretative Tools
3.2Definition of Marriages of Convenience: The ‘Sole Purpose’ Test
3.3Relationship between the ‘Sole Purpose’ Test and the cjeu Case Law
3.4Investigation of Marriages: Limitations and Procedural Safeguards
3.5‘Operational’ Measures
4 Conclusion
5The Concept of Marriages of Convenience and European Human Rights Law
1 Introduction
2 Articles 12 and 8 of the echr in a Nutshell
2.1The Right to Marry and to Found a Family
2.2The Right to Respect for Private and Family Life
3 Articles 8 and 12 of the echr and Immigration Control
4 The Legality of Targeting Marriages of Convenience for Immigration Purposes
4.1Marriages of Convenience in ECtHR Case Law
4.2Methods of Investigation and Human Dignity
5 ECtHR Case Law on Marriages of Convenience vs EU Free Movement Law
6 Conclusion
Part 2
UK Law
6Historical Development of Family Reunification Provisions in UK Law
1 Introduction
2 1948–1977: The End of Free Movement for Commonwealth Nationals
3 The ‘Primary Purpose Rule’ (1977–1997)
4 After the ‘Primary Purpose Rule’: Focus on Pre-wedding Controls
5 Certificate of Approval Scheme: Tarring Everyone with the Same Brush
6 The Blame Misplaced: Citizenship Directive as a ‘Loophole’
7 Conclusion
7Marriage Controls during the Pre-Brexit Period
1 Introduction
2 Pre-marriage Controls: ‘Referral and Investigation Scheme’
2.1Immigration Act 2014: ‘Sham Marriages’ and ‘Compliant Environment’
2.2Definition of a ‘Sham Marriage’
2.3Compliance with an Investigation
2.4Implications of Giving a Marriage Notice in the UK
2.5Interplay between the ‘Referral and Investigation Scheme’ and EU Law
3 Post-marriage Controls
3.1Procedures for Family Reunion with EU Citizens in the UK
3.2The Concept of Marriages of Convenience in the eea Regulations
3.3Application for an eea Family Permit
3.4Application for an eea Residence Card
3.5Non-suspensive Appeal Rights
3.6Deporting EU Citizen Spouses: Public Policy Test
3.7Marriages of Convenience and UK Family Law
4 Conclusion
8Marriage Controls after Brexit
1 Introduction
2 Position of EU Citizens in the UK after Brexit
3 Family Members of EU Citizens in the UK
4 Marriages of Convenience Post-Brexit
4.1Pre-marriage Controls
4.2Post-marriage Controls
4.3Procedures Following a Marriage of Convenience Determination
5 Conclusion
9Assessing the Nature of Marriage: Conduct of Investigation
1 Introduction
2 ‘Risk Profiles’ and Marriages Perceived as ‘Suspicious’
3 Interview Questions: Focus on Discrepancies and Cohabitation
4 Hostile Interviewing Style
5 Cases Involving Pregnancy or Childbirth
6 Home Visits
7 Conclusion
10Legitimising the Illegitimate: Marriages of Convenience and the UK Judiciary
1 Introduction
2 Burden of Proof
2.1Evidential Burden
3 Focus on Cohabitation and/or Present State of the Relationship
4 Definition of Marriages of Convenience
4.1Literal Interpretation of the Definition
5 Cases Involving Pregnancy or Childbirth
6 Conclusion
Conclusion
Annexes
Annex 1
Annex 2
Annex 3
Bibliography
Index
List of Tables
Abbreviations
Introduction
1 Setting the Scene: Marriages of Convenience and EU Citizens’ Right to Family Reunion
2 Limitations
3 Sources
4 Terminology
4.1‘Marriages of Convenience’
4.2‘Citizen’ v ‘National’
4.3‘Family Reunion’ v ‘Family Reunification’
5 Chapter Outline
Part 1
EU and European Human Rights Law
1Right to Family Reunion in EU Free Movement Law
1 Introduction
2 From ‘Market Citizen’ to Union Citizen: Evolution of the Concepts of Free Movement of Persons and EU Citizenship
2.1On the Way towards the Citizenship Directive
2.2Citizenship Directive
3 Right to Family Reunion under the Citizenship Directive
3.1Rights of Family Members as Derivative Rights
3.2Who Is Considered a Family Member?
3.3Married Couples as a Privileged Group
4 Derogations from Free Movement Rights
4.1Public Policy, Public Security and Public Health
4.2Abuse of Rights
5 Conclusion
2Right to Family Reunion as a Source of Tension between the cjeu and Member States
1 Introduction
2 Treating Nationals Worse than Foreigners: The Phenomenon of Reverse Discrimination
3 The Substance of Marriage
4 Returning Member State Nationals
5 EU Citizens Forming Families in the Host Member State
6 Visas for Non-EU Family Members Travelling to the UK
7 Family Reunion Cases Outside the Scope of the Citizenship Directive
7.1Different Forms of Free Movement
7.2Static EU Citizens
8 Marriages of Convenience as the Only Form of Abuse of Rights?
9 Conclusion
3After Metock: Marriages of Convenience as an Apple of Discord between the EU and Member States
1 Introduction
2 All You Need Is Love? The Controversial Notion of Marriages of Convenience
3 The Judgment in Metock: Opening a Pandora’s Box
4 Exploitation of the Vulnerable? EU-8 Nationals in Focus
5 UK and Three Other Member States Demanding Change
6 Pre-referendum Settlement: An Unprecedented Concession to the UK
7 Conclusion
4Europeanisation of Relationship Standards? Marriages of Convenience in EU Soft Law
1 Introduction
2 EU Soft Law in a Nutshell
2.1The Concept of European Soft Law
2.2General Rule: No Derogation from Hard Law
2.3Legal Effects of EU Soft Law at the National Level
3 EU Soft Law on Marriages of Convenience
3.1Commission Guidelines and Handbook as Interpretative Tools
3.2Definition of Marriages of Convenience: The ‘Sole Purpose’ Test
3.3Relationship between the ‘Sole Purpose’ Test and the cjeu Case Law
3.4Investigation of Marriages: Limitations and Procedural Safeguards
3.5‘Operational’ Measures
4 Conclusion
5The Concept of Marriages of Convenience and European Human Rights Law
1 Introduction
2 Articles 12 and 8 of the echr in a Nutshell
2.1The Right to Marry and to Found a Family
2.2The Right to Respect for Private and Family Life
3 Articles 8 and 12 of the echr and Immigration Control
4 The Legality of Targeting Marriages of Convenience for Immigration Purposes
4.1Marriages of Convenience in ECtHR Case Law
4.2Methods of Investigation and Human Dignity
5 ECtHR Case Law on Marriages of Convenience vs EU Free Movement Law
6 Conclusion
Part 2
UK Law
6Historical Development of Family Reunification Provisions in UK Law
1 Introduction
2 1948–1977: The End of Free Movement for Commonwealth Nationals
3 The ‘Primary Purpose Rule’ (1977–1997)
4 After the ‘Primary Purpose Rule’: Focus on Pre-wedding Controls
5 Certificate of Approval Scheme: Tarring Everyone with the Same Brush
6 The Blame Misplaced: Citizenship Directive as a ‘Loophole’
7 Conclusion
7Marriage Controls during the Pre-Brexit Period
1 Introduction
2 Pre-marriage Controls: ‘Referral and Investigation Scheme’
2.1Immigration Act 2014: ‘Sham Marriages’ and ‘Compliant Environment’
2.2Definition of a ‘Sham Marriage’
2.3Compliance with an Investigation
2.4Implications of Giving a Marriage Notice in the UK
2.5Interplay between the ‘Referral and Investigation Scheme’ and EU Law
3 Post-marriage Controls
3.1Procedures for Family Reunion with EU Citizens in the UK
3.2The Concept of Marriages of Convenience in the eea Regulations
3.3Application for an eea Family Permit
3.4Application for an eea Residence Card
3.5Non-suspensive Appeal Rights
3.6Deporting EU Citizen Spouses: Public Policy Test
3.7Marriages of Convenience and UK Family Law
4 Conclusion
8Marriage Controls after Brexit
1 Introduction
2 Position of EU Citizens in the UK after Brexit
3 Family Members of EU Citizens in the UK
4 Marriages of Convenience Post-Brexit
4.1Pre-marriage Controls
4.2Post-marriage Controls
4.3Procedures Following a Marriage of Convenience Determination
5 Conclusion
9Assessing the Nature of Marriage: Conduct of Investigation
1 Introduction
2 ‘Risk Profiles’ and Marriages Perceived as ‘Suspicious’
3 Interview Questions: Focus on Discrepancies and Cohabitation
4 Hostile Interviewing Style
5 Cases Involving Pregnancy or Childbirth
6 Home Visits
7 Conclusion
10Legitimising the Illegitimate: Marriages of Convenience and the UK Judiciary
1 Introduction
2 Burden of Proof
2.1Evidential Burden
3 Focus on Cohabitation and/or Present State of the Relationship
4 Definition of Marriages of Convenience
4.1Literal Interpretation of the Definition
5 Cases Involving Pregnancy or Childbirth
6 Conclusion
Conclusion
Annexes
Annex 1
Annex 2
Annex 3
Bibliography
Index