What is a sham marriage?
A sham marriage, or a paper marriage, or a marriage of convenience, is when two people give the impression they want to live permanently together in a marriage or civil partnership, when this is not true.
They are not in a real relationship. The apparent relationship can be for a number of reasons including to by-pass immigration procedures, or more ominously for slave trafficking.
Those who misrepresent the true position are committing fraud. It is a criminal offence.
What about those who help or assist?
It is therefore crucial that those who are asked to advise or assist people considering a sham marriage, should simply refuse to do so, otherwise they are aiding and abetting, counselling or procuring an offence contrary to either Section 44 of the Magistrates’ Court Act 1980, or Section 8 of the Accessories and Abettors Act 1861.
Sections 24 and 24a of the Immigration and Asylum Act 1999 places a duty on registration officials across the UK to report suspected sham marriages and civil partnerships to the Home Office.
What happens if the person asked to advise on a sham marriage is a Lawyer?
Solicitors, Barristers, Lawyers in the UK are officers of the Superior Courts of England and Wales. They must first and foremost uphold the rule of law and the proper administration of justice. They must act with integrity, and not allow their independence to be compromised. They must also act in the best interests of their client.
Where there is any conflict between those duties, a Lawyer must cease to act or to advise.
Where a Lawyer advises on a sham marriage, they are not upholding the rule of law or proper administration of justice; they are not acting with integrity, and compromising their independence. They are ultimately not acting in their client’s best interests.
They are breaking the Law, and they are in breach of the Solicitors’ Regulation Authority Code of Conduct 2011.
What happens to someone who is guilty of a sham marriage?
Those who seek immigration will be expelled from the UK.
What happens to an agent who assists?
If caught, they may be guilty of aiding and abetting, counselling or procuring an offence.
In November 2013 the Home Office produced a scheme specifically in relation to sham marriages and civil partnerships recommending new ways to prevent migrants gaining an immigration advantage by entering into a sham marriage. A new Immigration Act will hopefully adopt many of those recommendations.
What happens to a Lawyer who assists?
That Lawyer is committing a criminal offence, and will be subject to the same penalties of fine and/or imprisonment as anyone else, but the punishment may well be heavier because as a Lawyer, one is expected to uphold the Law, and failing to do so is a huge breach of confidence to the public.
Furthermore, the Solicitors’ Regulation Authority may well seek to impose sanctions upon that Lawyer which may include being struck off.
Professor David Rosen is a Solicitor-Advocate, Partner and head of Litigation at Darlingtons Solicitors LLP. He is a Certified Fraud Examiner and a board member of the ACFE UK Chapter. He is a member of RUSI, and the Society of Legal Scholars. He is an Associate Professor of Law at Brunel University where he lectures on various topics, primarily commercial and criminal fraud.
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