walrusgumble wrote:
Artilce 35 is a very short and vague provision. It provides no uniformed guidelines.Ahern refers to the aim is also to deal with attempts of a refused couple to go elsewhere in europe to to get married and the position of third country nationals who enter the eu illegally or become illegal in time. It is a matter that some countries are begining to open their eyes to. Any attempts to deal with this may run foul of the Directive or Convention. Therefore, the member states are seeking guidelines from Brussels as to how they can go about this fairly and lawfully without being hauled to the courts.
Now Now, the Dept already have clear guidelines from the EU concerning how to remove, or deny a residency permit
in the individual case of a sham marriage, and the Dept have removed a grand total of zero.
There is something suspicious in the way the Dept are making so much drama and publicity about sham marriages, to try and pass over the top draconian laws and powers that are not needed. While not using already existing powers or even making fraud marriages a simple criminal offense. Dealing with the individual offenders instead of attacking everyone with collective punishment.
Here are the instructions from the EU Commission
http://eur-lex.europa.eu/LexUriServ/Lex ... FIN:EN:PDF
Brussels, 2.7.2009
COM(2009) 313 final
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
4. ABUSE AND FRAUD
Community law cannot be relied in case of abuse 55. Article 35 allows Member States to take effective and necessary measures to fight against abuse and fraud in areas falling within the material scope of Community law on free movement of persons by refusing, terminating or withdrawing any right conferred by the Directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure must be proportionate and subject to the procedural safeguards provided for in the Directive
Community law promotes the mobility of EU citizens and protects those who have made use of it 57. There is no abuse where EU citizens and their family members obtain a right of residence under Community law in a Member State other than that of the EU citizen’s nationality as they are benefiting from an advantage inherent in the exercise of the right of free movement protected by the Treaty 58 , regardless of the purpose of their move to that State 59. By the same token, Community law protects EU citizens who return home after having exercised their free movement rights.
4.1. Concepts of abuse and fraud
4.1.1. Fraud
For the purposes of the Directive, fraud may be defined as deliberate deception or contrivance made to obtain the right of free movement and residence under the Directive. In the context of the Directive, fraud is likely to be limited to forgery of documents or false representation of a material fact concerning the conditions attached to the right of residence. Persons who have been issued with a residence document only as a result of fraudulent conduct in respect of which they have been convicted, may have their rights under the Directive refused, terminated or withdrawn 60.
4.1.2. Abuse
For the purposes of the Directive, abuse may be defined as an artificial conduct entered into solely with the purpose of obtaining the right of free movement and residence under Community law which, albeit formally observing of the conditions laid down by Community rules, does not comply with the purpose of those rules 61.
4.2. Marriages of convenience
Recital 28 defines marriages of convenience for the purposes of the Directive as marriages contracted for the sole purpose of enjoying the right of free movement and residence under the Directive that someone would not have otherwise. A marriage cannot be considered as a marriage of convenience simply because it brings an immigration advantage, or indeed any other advantage. The quality of the relationship is immaterial to the application of Article 35. The definition of marriages of convenience can be extended by analogy to other forms of relationships contracted for the sole purpose of enjoying the right of free movement and residence, such as (registered) partnership of convenience, fake adoption or where an EU citizen declares to be a father of a third country child to convey nationality and a right of residence on the child and its mother, knowing that he is not its father and not willing to assume parental responsibilities. Measures taken by Member States to fight against marriages of convenience may not be such as to deter EU citizens and their family members from making use of their right to free movement or unduly encroach on their legitimate rights. They must not undermine the effectiveness of Community law or discriminate on grounds of nationality.
When interpreting the notion of abuse in the context of the Directive, due attention must be given to the status of the EU citizen. In accordance with the principle of supremacy of Community law, the assessment of whether Community law was abused must be carried out in the framework of Community law, and not with regard to national migration laws. The Directive does not prevent Member States from investigating individual cases where there is a well-founded suspicion of abuse. However, Community law prohibits systematic checks 62.
Member States may rely on previous analyses and experience showing a clear correlation between proven cases of abuse and certain characteristics of such cases. In order to avoid creating unnecessary burdens and obstacles, it is possible to identify a set of indicative criteria suggesting that there is unlikely to be an abuse of Community rights:
Member States may define a set of indicative criteria suggesting the possible intention to abuse the rights conferred by the Directive for the sole purpose of contravening national immigration laws. National authorities may in particular take into account the following factors:
• the couple have never met before their marriage;
• the couple are inconsistent about their respective personal details, about the circumstances of their first meeting, or about other important personal information concerning them;
• the couple do not speak a language understood by both;
• evidence of a sum of money or gifts handed over in order for the marriage to be contracted (with the exception of money or gifts given in the form of a dowry in cultures where this is common practice);
• the past history of one or both of the spouses contains evidence of previous marriages of convenience or other forms of abuse and fraud to acquire a right of residence;
• development of family life only after the expulsion order was adopted;
=====================
References
53
AG Stix-Hackl in case C-441/02 Commission v Germany
54
Case 36/75 Rutili (paras 37-39)
55
Cases 33/74 van Binsbergen (para 13), C-370/90 Singh (para 24) and C-212/97 Centros (paras 24-25)
56
Case C-127/08 Metock (paras 74-75)
57
Cases C-370/90 Singh, C-291/05 Eind and C-60/00 Carpenter
58
Cases C-212/97 Centros (para 27) and C-147/03 Commission v Austria (paras 67-68 )
59
Cases C-109/01 Akrich (para 55) and C-1/05 Jia (para 31)
60
Cases C-285/95 Kol (para 29) and C-63/99 Gloszczuk (para 75)
61
Cases C-110/99 Emsland-Stärke (para 52 et seq.) and C-212/97 Centros (para 25)
