Proceso del nacimiento de la actual Ley Orgánica de Comunicación

withdraw a residence permit in most Member States. Most frequently, Member States regulate marriages of convenience through their immigration rules, either through their definition of spouse or by including it as a ground to revoke, terminate or withdraw rights or a combination of both. In Italy and Latvia the authorities regulate marriages of convenience through their Civil Law and in Austria consideration is given whether there is family life within the meaning of Article 8 ECHR. An interesting case, mentioned by the Italian rapporteur, concerns the refusal to issue a residence permit to a spouse, who changes sex after marriage, but does not report this to the authorities. An application for a residence permit was turned down by the authorities arguing that the marriage was fictitious. The court of Reggio Emilia found that as not reporting a change in sex of one of the spouses is not a ground to dissolve a marriage according to the European Court of Human Rights’ case law and the marriage in this case was real, the decision to refuse a residence permit could no be upheld, though under Italian law a change of sex recorded in the official records is a reason to dissolve the marriage.88

A new chapter in the book on abuse of free movement rules is reported by the Belgium, Czech and Hungarian rapporteurs. These Member States have seen own nationals and na- tionals of other Member States making a formal statement recognising the paternity of a child, born to a third-country national mother with a view to passing on their nationality to the child, who in turn, through the Ruiz Zambrano and Chen case law,89 _{can provide their}

third-country national mother with a right of residence,. Both the Belgium and Czech authori-

87 Immigration Act 2004 (Visas) (No. 2) Order 2011,S.I. No. 345; Immigration Act 2004 (Visas) Order 2012, S.I. No. 417.

88 Court of Reggio Emilia, Order of February 9, 2013, No. 8354/12.

89 CJEU (Full Court) case C-200/02, Chen [2004] ECR I-9925 and CJ EU (Grand Chamber) C-34/09, Ruiz Zambrano v [2011] ECR I-01177.

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ties are taking measures to tackle ‘false declarations of paternity’. Tackling this problem is proving more challenging in Hungary as the OIN lacks competence to deal with such cases.

Croatia has defined marriages of convenience in Article 57 of its Aliens Act. A mar- riage of convenience can be a justification for an expulsion measure, albeit subject to consid- eration of the length of stay, age, health, family and economic circumstances, degree of so- cial and cultural integration in the Republic of Croatia and ties with the country of origin at the time the expulsion measure is adopted.90 _{Circumstances that may indicate the existence}

of such a marriage, which also apply to common law marriages, include: 1) the spouses do not maintain their marital union; 2) the spouses do not perform their marital obligations; 3) the spouses never met before the marriage was convened; 4) the spouses fail to provide con- sistent personal data; 5) the spouses do not speak a language that they both understand; 6) material assets were exchanged before the marriage was convened, unless the assets repre- sent dowry and the spouses come from countries where the presentation of dowry is a cus- tom; and 7) there is proof of previous marriages of convenience on the part of either of the spouses, either in the Republic of Croatia or abroad.

Legislation

Proposals and/or amendments to the law and/or policy rules concerning abuse of rights are reported by the German,Latvian, Lithuanian, Dutch, Swedish and UK rapporteurs.

The German amendment concerns section 2 § 7 of its Free Movement Act and intro- duces a new procedure that authorises the German authorities to formally establish the loss of residence rights if a third-country national family member does not accompany or join an EU-citizen for the purpose of family reunification. This section also introduces a procedure to declare null and void a right derived from free movement rules if false information has been provided or forged or falsified documents have been used. Though strictly speaking the new rules to not explicitly address the issue of marriages of convenience it is clear from the reasons provided that the aforementioned provision intends to implement Article 35 of the Citizens Directive. The rules are based on a presumption of free movement rights, requiring substantial doubts regarding the intention to establish a family relationship in Germany be- fore further examination is permitted.91 _{It is for the foreign spouse to establish that family}

reunification is the true reason to apply for residence permission in Germany. The amend- ment follows reports made by various German Länder of a significant number of cases of marriages with no intention to establish a family relationship.

A proposal to remove the condition in the Civil Status Act Registration Law that mar- riages can only be convened in Latvia if both spouses-to-be enjoy a permanent right of resi- dence in that Member State is pending.92 _{The rapporteur notes that though the condition sits}

uneasily with the principle of equal treatment, removing this condition from the aforemen- tioned act will make it easier to enter into marriages of convenience in that Member State.

In June 2012 marriages of convenience and fraud were introduced as a reason to termi- nate a right of residence granted under Article 106(1) paragraphs 2 and 4 and Article 106(2) paragraph 2 in the Lithuanian Aliens Law, which previously only provided for measures against marriages of convenience in the general Immigration rules. These provisions still await the adoption of implementing measures.

90 Article 105(1)(4) Aliens Act. 91 BT-Drs. 17/10746, at p. 13-14.

92 Telephone interview with Director of Department of Civil Status Acts of Ministry of Justice on June 12, 2012.

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Section B10/2.3 of the DutchVreemdelingencirculaire now sets out the policy rules on abuse of free movement rights and includes a definition of artificial behaviour.

A proposal to amend the Swedish Aliens Act ch 3a § 4, to the extent that a marriage or partnership of convenience, fraud or an adoption made for the sole purpose of acquiring resi- dence rights, does not give a right to residence, is pending.93

An amendment introduced to the definitions of spouse or civil partner in the UK Immi- gration (European Economic Area) Regulations 2006 (SI 2006/1003) means that a party to a marriage or civil partnership of convenience is not covered by those definitions. Unfortu- nately it is not defined within the Regulations what a marriage or partnership of convenience is. There is also an exclusion to ensure that polygamous marriages or other multiple relation- ships are not recognised under the Regulations, as the spouse, civil partner or durable partner of an EEA-national in the United Kingdom are excluded if a spouse, civil partner or a dura- ble partner of the spouse or the EEA national is already present in the United Kingdom.94

Case law

Abuse of free movement rights has been addressed by the courts in Austria,95 _France,96

Hungary,97_Italy,98_{the Netherlands,}99_Spain,100_Poland101_{and the UK.}102

The information provided by the Hungarian, Italian and Dutch rappoteurs paints a picture in favour of the Member State upholding decisions to terminate residence rights. Austria and France are the exceptions. In the former Member State the Administrative Court held that even if a marriage of convenience is established and a right of residence refused on this ground the Dereci ruling means that there is no obligation for the partner of an Austrian national to leave that country. The French court found that as prefet had not provided evidence to support the conclusion that the case involved fraud, this decision could not be upheld as the partners resided together and shared a common household. To not uphold an expulsion decision when a marriage was convened after that decision was executed would ‘encourage sham marriages’ according to the Italian Supreme Court. The Dutch Council of State explicitly refers to the European Commission’s guidelines that includes conflicting

93 Official report Ds 2012:60, p. 55 ff and p. 85. A reference to the European Commission guidance is included (Communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, COM (2009) 313/4 final). See also: Case MIG 2009:11 where the court held that EU-law cannot be invoked to legitimize a marriage of convenience.

94 Immigration (EEA) (Amendment) Regulations 2012/1547 and 2012/2560. 95 Austrian Administrative Court, April 24, 2012, 2008/22/0254.

96 CAA Bordeaux, July 5, 2012, No. 12BX00350.

97 EBH 2010:2277 Supreme Court decision 37.256/2010; Kfv.IV.37.090/2010/6, September 8, 2010; Kfv.III.37.854/2009/4, 15 June 2010; Kfv.III.37.076/2010/5., October 5, 2010; Kfv.III.37.194/2010/4, November 2, 2010; and Kfv. III. 37.030/2011. published in: BH 2012/165.

98 Italian Supreme Court, Order 10-7-2012, No. 11582.

99 Afdeling Bestuursrechtspraak Raad van State 6 June 2012, No. 201106910/1/V4, LJN BW7878, JV 2012/325; ibid., 29 June 2012, No. 201111222/1/V4, LJN BX0615, JV 2012/355; ibid, 3 April 2013, No. 201208308/1/V4, LJN BZ8720, JV 2013/188; and ibid., 31 May 2013, No. 201206477/1/V4, retrieved from: www.MigratieWeb.nl.

100 Tribunal Supremo (Sala de lo Contencioso-Administrativo, Sección 3ª), sentencia de July 18, 2012; Tribunal Superior de Justicia de Madrid (Sala de lo Contencioso-Administrativo, Sección 1ª), sentencia No. 513/2011, May 20, 2012; Audiencia Provincial de Guadalajara (Sección 1ª), sentencia No. 56/2013 April 3, 2013, JUR 2013\178196;Audiencia Provincial de Sevilla (Sección 2ª), sentencia No. 24/2011, January 31, 2012; and Provincial Court of Girona, March 21, 2012.

101 Tribunal Central Administrativo Norte (Second Instance North Administrative Court), February 24, 2012, case No. 02370/08.3BEPRT, available in www.dgsi.pt.

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statements regarding the relationship to justify the presence of a marriage of convenience. In one of the cases handed down by the Dutch Council of State information provided by that Member State’s Minsitry of Foreign Affairs regarding unusual patterns of migration (i.e. the increasing number of consular marriages in which one of the partners is an Egyptian national) was used to justify the presence of a marriage of convenience. The UK rapporteurs report that though the case law requires the Home Office to provide evidence that the marriage is one of convenience, in practice it is the indiciudal that is being asked to show that his/her marriage is genuine.

Statistical data

Statistical data regarding marriages of convenience has been included by the: Belgium, Estonian, Hungarian, Latvian and Polish rapporteurs.

In 2012 Belgium witnessed a decline in the number of cases in which the public prose- cutor advised negatively regarding an intended marriage, from 59 % in 2011 to 52 % in 2012. A press release dated October 5, 2012 providing data over 2011 informs of a recorded 10.728 cases of possible marriages of convenience; 882 visa refusal indicated by a an alleged marriage of convenience; 743 cases in which the Office of the Prosecutor produced a report on investigations into a marriage of convenience; and 116 residence permits being with- drawn following a conviction for convening a marriage of convenience.

In Estonia 2011 witnessed 35 cases of marriages of convenience. The rapporteur notes that it is extremely difficult to prove a marriage of convenience as mere doubts regarding the nature of a marriage are insufficient to refuse a right of residence.

The data in the Hungarian report is taken from data collected by the UK Border Agen- cy, revealing that in 2009 13 and in 2010 25 Hungarian nationals were arrested for accepting money in exchange of a marriage. The figures for Romanians, Czechs, Slovakians and Poles for 2010 for the same offence reported by the UK Border Agency are: 30, 63, 53 and 91 re- spectively.

The statistics on marriages of convenience collected in Poland do not specify in how many cases such a marriage was entered into for the purpose of benefitting from Directive 2004/38/EC. Data collected by the Polish Border Guard relate of 128 cases for 2011. It is said that 10% of the refusals to grant entry permission are motivated by considerations con- cerning the sham nature of the marriage.103

Miscellaneous

The following information is taken from the Austrian, Belgium, Danish, Hungarian, Irish, Latvian, Dutch, Swedish and UK reports.

The Austrian courts and administrative bodies are obliged by law,104 _{to inform the im-}

migration police if they have well-founded suspicions that a marriage qualifies as a marriage of convenience. To adopt immigration measures, it is not required that a marriage that quali- fies as a marriage of convenience is declared null and void by the Austrian authorities, in- cluding the courts. One of the implications of labelling a marriage one of convenience is that the third-country national parent cannot rely successfully on the Ruiz Zambrano/Dereci case law to ensure prolongation of residence in Austria. According to that Member State’s Ad-

103 Polish National Migration Contact Point, Report on Abusing Right to Family Reunion (April 2012). 104 Section 109 APA.

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ministrative Court a refusal to issue a residence permit under these circumstances does not amount to an obligation to leave Austrian territory.105

In Belgium there are plans to strengthen controls on applications for family reunion at the Federal level.

In their fight against abuse of free movement rights the Danish Immigration Services reported a Danish national, who had lived and worked in Sweden and wanted to return to Denmark with her spouse, to the police requesting those authorities to instigate a criminal investigation against the spouse before the immigration decision had become final. Subject of these investigations should have been the information provided by the spouse in support of the application for family reunification which was considered insufficient as evidence of genuine and effective residence in Sweden. In this case, at the end of the day, a residence permit was issued and no criminal charges were made against the Danish spouse.

Concerns regarding the lack of clarity concerning competences to address cases con- cerning abuse of free movement rights are expressed by the Hungarian rapporteur. Compe- tences are shared by the consular authorities (issuing visa) and the OIN (issuing residence permits). These concerns also include the lack of professional knowledge with the public administration office allowing them to screen and detect marital status documents. The Hun- garian rapporteur also reports of investigations into a marriage mediator network following an increase in the number of applications for family reunion involving Nigerian male spous- es, noting that the OIN has no competence to address cases in which profits are made.

The Irish rapporteur states that a marriage of convenience is an issue of great complex- ity in that Member State, with no single remedy, either legislative or administrative avail- able. The issue is complicated by the constitutional protection given to the institution of mar- riage, as well as the amendments made to the Regulations in the wake of Metock, which re- moved the lawful residence requirement for family members of EU-citizens who are third- country nationals. In setting out his key priorities for 2013, the Irish Minister for Justice an- nounced plans to re-publish and hopefully enact the Immigration, Residence and Protection Bill.106 _{The Bill would make it more difficult for persons engaged in marriages of conven-}

ience to benefit from the marriage in immigration terms, as Section 138 allows the Minister for Justice and Equality to disregard a particular marriage when determining an immigration issue, if the marriage is deemed to be a marriage of convenience.107 _{In this regard, the Minis-}

ter can request the parties to provide information that proves that the marriage is not a ’sham marriage’. Section 138(5) of the Bill lists a number of factors that will be used to determine whether there is a marriage of convenience. Factors such as the nature of the relationship prior to the marriage, whether there was any fiscal inducement, and the parties’ familiarity with each other’s personal details will be considered. Section 138 of the Bill does not pro- vide for a right of appeal. The only remedy available would be the possibility of judicial review in the Irish High Court. The Irish Minister for Social Protection has announced plans to amend the Civil Registration Act, 2004 in an effort to deal with marriages of convenience. Speaking in July 2013, the Minister stated that her Department had been considering the issue and “has met with a number of stakeholders with a view to introducing measures to combat marriages of convenience” and that she intended “to introduce legislation shortly that will make such marriages far more difficult to contract in the future”. The Minister stated that she hoped to publish the Civil Registration (Amendment) Bill 2013 later this year, not-

105 Austrian Administrative Court, April 24, 2012, 2008/22/0254.

106 http://www.inis.gov.ie/en/INIS/Pages/Immigration%20in%20Ireland%20%E2%80%93%202012%20 in%20Review

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ing, on the same occasion, that there are guidelines in force instructing registrars for mar- riage notifications on the requirements for notification procedures, including the verification of identity and marital status which are designed to assist the authorities to prevent marriages of convenience.108

The concerns expressed by the Latvian rapporteur in previous reports, regarding Latvian women who are recruited to work in the UK and Ireland, but who, upon arrival in those Member States are locked up and threatened to be abused if they do not enter into a marriage with a third-country national that will provide the latter with a right of residence, are voiced once again.109 _{Notwithstanding the introduction of information campaigns, for 2012 NGOs}

providing rehabilitation services to victims of human trafficking have reported 30 cases in which they have provided assistance, of which 16 cases concerned forced marriages (com- pared to 14 cases of which 8 concerned forced marriages for 2011).110 _{The cases which have}

to be dealt with in Latvia, as they concern suspicions of marriages of convenience in Latvia, mainly concern men from Turkey and Egypt. Finally, reports in the media reveal that Lat- vian women are frequently approached by male third-country nationals on Internet social (meeting) sites.111

The discussions on the Wet electronische dienstverlening burgerlijke stand [Act on online services for the Registrar Office] as discussed in the 2011-2012 Dutch report are still ongoing. In October 2012 the Secretary of State for Security and Justice and the Home Min- ister addressed the concerns regarding this Act voiced by members of the First Chamber. They argued that careful consideration whether an intended marriage should qualify as a marriage of convenience does not affect the free choice of partners – as the Greens had feared – as the Act will merely simplify, accelerate and tightened up procedures.112 _{In re-}

sponse to the concerns expressed by the CDA, regarding fraud and marriages of conven- ience, they point out that a number of measures have been adopted to prevent fraud and abuse.

In Sweden forced marriages and child marriages (meaning that one of the spouses is younger than 18 years) are criminalized. Suggested amendments include the removal from the law of a possible exemption for marriages under the age of 18 if the marriage has been