Written evidence submitted by Immigration Marriage Fraud UK
Introduction:
A post Brexit immigration policy gives opportunities to revisit the policies currently implemented by the Home Office and their priorities. We welcome the opportunity to submit our views, though we have covered many of the points before in various reports and briefings to you, we hope this summary proves useful. Europe did not cause the issues that we see these are ‘home grown’ but analysing the issues in the context of a post Brexit policy will evidence where Europe has been given as the reason for policy by the Home Office where there are no actual constraints and the reality is that Europe has been addressing but the UK has not. It gives us the opportunity to be a model of best practice learning from countries both within and outside the EU.
1) Immigration Marriage Fraud definition (which the EU now calls ‘Marriages of Deception’) where one party has been duped:
Marrying for the purpose of obtaining immigration status in the UK by using - fraud, misrepresentation or concealment of material fact or by lying about the true purpose of the marriage. Secondary aims may include financial gain, escaping criminal pasts and terrorist related activity.
The unique feature is that all victims are bound in marital contracts with a fraudster.
The key issues that IMFUK want addressed with a post Brexit immigration policy are:
(1)The Immigration and Asylum Act 1999 is amended in accordance with this section.
(2)In section 24 (duty to report suspicious marriages), for subsection (5) substitute—
“(5) A marriage (whether or not it is void) is a “sham marriage” if—
(a) either, or both, of the parties to the marriage is not a relevant national,
(b) there is no genuine relationship between the parties to the marriage, and
(c) either, or both, of the parties to the marriage enter into the marriage for one or more of these purposes—
(i) avoiding the effect of one or more provisions of United Kingdom immigration law or the immigration rules;
(ii) enabling a party to the marriage to obtain a right conferred by that law or those rules to reside in the United Kingdom.
(1) A person who is not a British citizen is guilty of an offence if, by means which include deception by him—
(a) he obtains or seeks to obtain leave to enter or remain in the United Kingdom; or
(b) he secures or seeks to secure the avoidance, postponement or revocation of enforcement action against him.
Plus the Criminal legislation of Bigamy 1861 – Offences against the Person, Fraud Act 2006 – Section 2 Deception, Rape by Deception (Consent), Coercion. These are the tools of the fraud used to commit a Sham marriage.
In conclusion IMFUK and the victims want to see improved immigration processes, policy, guidance and prosecutions to tackle the issue of immigration marriage fraud/Sham marriages - as other countries are doing - leading to fewer victims and fewer unscrupulous fraudsters being rewarded with immigration status and entering our society to be a danger to others. Fewer Sham marriages of all forms would result and a deterrent created. We want to see fewer victims but where they are ascertained that appropriate processes and resources are put into support the victim and to obtain their evidence. Timely investigations and prosecutions are necessary to enable the victims to extract themselves from fraudulent marriages following the correct legal path.
2) Our organisation researches the issue of immigration marriage fraud in the UK and internationally we support victims and voice to the Home Office and Police the necessity to have both investigative and prosecution strategies. We are the UK’s leading authorities on the issue and ascertain the issue to be in the region of 1000 serious cases of identifiable fraud a year. We lecture on Criminology Courses and Fraud Forums and where we can brief Police Forces we do.
3) All cases lead to devastation for the victims, many are left in dangerous situations – physical violence, stalking, harassment, honour based threats of violence, blackmail all being common and in rare cases murder - when the frauds are uncovered. All victims are left in legal nightmares due to non prosecution often losing their homes, children and mental health. The most common fraud is bigamy and polygamy without consent – none are currently being prosecuted. We have written many times before but we cannot begin to convey just how bad the situation is and that the UK has become an open door for fraudsters targeting British Citizens with fake identities, fraudulent paperwork, hiding wives and family, hiding criminal records, running away from prosecution – often in combinations.
4) To fully understand what is happening we would like to invite you to meet some victims so that they can share with you their stories and the unacceptable responses of the Home Office, Police and the consequences of non prosecution. Noting that 50% of all victims have met the fraudsters in the UK – they have already entered into our society.
5) These frauds had been firmly recognised in many countries who address with better immigration processes, warnings, investigations, prosecutions and deportations. Those that address have been successful in substantially bringing down the numbers of reported fraud.
6) The Home Office and Ministers continue to refuse to have dialog with Immigration Marriage Fraud UK despite us writing to ask if we can brief them. What though is possibly worse is that they continue to put out spin that they ‘take abuse of the immigration system seriously’. Perhaps this is because the top does not know what is happening within the organisation which our Parliamentary Ombudsman cases evidence. The failures to address have nothing to do with being a member of the EU. Many EU member states have stronger immigration processes and address the issue of fraud. The EMN summarises what each country does. This is our own home grown failure.
7) The key failings IMFUK have identified are:
a) A Foreign National can write anything in the migration process and use fraud, misrepresentation or concealment of material fact and rarely be prosecuted.
b) There are no marital checks carried out by the Home Office or evidence required and very few criminal checks – see Mark Sedwills Report Jan 2015 in response to the Parliamentary Ombudsman Report – Home Office Failings put Family at Risk.
c) That current CPS guidance does not enable prosecution for bigamy of those that have married abroad. There is no CPS Guidance for prosecuting this form of Sham marriage.
d) That there is no Home Office Guidance for victims or the Police.
e) When the frauds are brought to the attention of the Home Office - No cases are investigated unless the victim makes numerous complaints to the Home Office makes Police Standards complaints and begins a Parliamentary Ombudsman case. Forcing the authorities to apply the existing legislation.
f) There is no Home Office investigative strategy. This has been firmly ascertained by the Parliamentary Ombudsman. There are no Police investigative strategies in the context of these immigration offences.
g) Some victims having achieved an initial Parliamentary Ombudsman investigation uncovering that no action has taken place are now in the process of starting another due to the failures to grip and investigate a case that has become ‘live’ and still failing to speak to the victim and obtain evidence. Cases now being deemed not an ‘operational priority’.
h) A game of football is being played between the Home Office and the Police with each believing it is the others responsibility made more complex by the fact there are 43 different autonomous police forces and an additional game is being played between UKVI and Enforcement. We have very firm evidence of this in the form of written letters with the Home Office writing to say ‘it is a Police issue’ and the Police in response saying ‘it is a Home Office issue’ and letters from Enforcement and UKVI to victims.
i) The Data Protection Act is being applied in a manner against ‘the Spirit of the Law’ and in a manner it does not need to be if victims were classified as ‘victims’. All the victims want to know is that a case is being investigated, where it is in the process, will there be a prosecution and the means to give evidence. Common sense dictates that if the MOJ has produced booklets for the Police on the application a similar one should exist for the Home Office.
j) No cases are prosecuted for deception other than a few cases of organised crime. This has been pointed out before by John Vine in his British Nationality Report Dec 2014 but the Home Office refused to accept his recommendation of a prosecution strategy.
k) Very few will be deported because non investigation or prosecution skews the Appeals process. Additionally if you do not include the victim in the process you will not know what prosecutions have been obtained and some will have been achieved abroad. Keith Vaz in July obtained the statistics of spousal visa’s, Over the last 8 years 272,544 Spousal Visas granted, 5,544 Curtailments and only 732 Deportations in 8 years - with only 83 last year. Basically once you are in the UK using this route you are in the UK – FOREVER as the statistics prove! The figures evidence a paper pushing exercise that cannot obtain what the Home Office is seeking with their Curtailments. The problem needs to be looked at from the stance that currently once you have entered on a Spousal Visa you are in the UK and the question needs to be asked - Why is this happening if they have used bigamy, polygamy without consent, fraud, deception, false identities, fraudulent qualifications, misrepresentation, concealed material fact, coercive control, domestic violence, rape, rape by deception (Consent), false allegations of domestic violence under the overall definition of Sham marriage contained in the 2014 Immigration Act?
l) The Home Office by classifying the victim as ‘informants’ and not ‘victims’ is not speaking to the victim, not obtaining evidence, not obtaining the victims stories and they only allot 1200 Characters plus a few uploads for the allegation. This means valuable intel is being lost that can refine the immigration process to stop fraudsters. Common sense dictates you cannot investigate an allegation on the basis of 1200 characters without speaking to the victim. This is a contrived system to stop the victim giving full information or knowing what is happening with the excuse given of ‘Data Protection’. A system that effectively stops the ability to investigate.
m) It is vital that the victim knows whether there is an investigation and the outcome for this knowledge is required to extract from a marriage following the correct legal path and family court issues.
n) The Home Office fails to listen to victims informing of fraud routes.
o) It is vital that there is a change of culture - victims are not just pieces of paper they are real people.
p) Common sense dictates that given the risk to victims identified by the EU and others that a ‘Risk Assessment’ should be carried out.
q) Often the same crime has the victim designated as a ‘victim’ by the Police and the Code of Practice of Victims of Crime applied but the Home Office classifies as an ‘informant’ and they are not collaborating with the Police. Common sense dictates that the two authorities should be classifying the same person as a ‘victim’, applying the Code of Practice of Victims of Crime and collaborating.
r) Due to the failures foreign nationals are getting away with crimes that if committed by a British National would be prosecuted. The fact they are not being prosecuted enables the secondary phase of the fraud to take place – to obtain assets in a divorce. If there was a prosecution for bigamy the spouses assets would be safe under the case law of Whiston v Whiston and annulment law applied. If prosecuted for identity fraud the marriage can be annulled even there were other prosecutions Section 25 2g of the Matrimonial Clauses Act could be applied. In all the above scenarios if a British Citizen married a British Citizen the law would be applied and the correct legal path ascertained to extract from a fraudulent marriage.
s) Non prosecution skews any child care issues with the victim being deemed as vindictive if they raise the immigration marriage fraud in Court or with Social Services. Children are being placed with the fraudsters or contact arrangements made with children the product of rape or who have previously been abandoned as ‘anchor’ children and thereby the immigration rights are secured for the fraudster.
t) Non prosecution for perjury in False Allegations of Domestic Violence for immigration purposes is a pressing issue. Having a tighter policy in verifying that abuse has taken place was identified as a failing by David Bolt in his Settlement Casework Report Nov 2015. False allegations leave victims marked for ever as being an abuser should immigration status be achieved.
u) Curtailments should take place speedily rather than the current system of allowing the fraudster to remain in the UK for the full Spousal Visa without prosecution and giving time for another relationship to be formed and an ‘anchor child’ produced often by targeting another ‘victim’ who has been duped when the authorities know that they are already married but have failed to prosecute.
8) Solutions:
The solutions to address are simple and not financially costly especially when you consider the cost for Police and Home Office now that lead to absolutely no outcomes and the bigger cost to society, the victims and their families.
a) Firstly a multi-professional team made up of existing Enforcement Home Office Staff, police on secondment (preferably NIFB) and support for victims – IMFUK. All cases from across the UK to go through an investigative process with Risk Assessments carried out. Cases triaged to other agencies with a ‘staying’ of divorce and child care issues pending full investigations. Working parties set up to address the issues.
b) A website giving information to victims, police, family courts, social services etc. With a more appropriate form designed for the reporting of the crime by the victim (we have one we can share).
c) The victim designated as ‘Victims’ and the Code of Practice of Victims of Crime implemented.
d) A prosecution strategy including the victim’s voice leading to an improved outcomes of the Curtailments and Deportation of fraudsters.
e) Identification of the weaknesses in our current laws and guidance amended as other countries have done e.g. immigration marriage fraud used as a category for annulment
f) Greater knowledge gleaned through research leading to improved immigration processes and keeping one step ahead of the fraudsters.
In conclusion it is not ‘Rocket Science’ it just needs leadership and IMFUK can greatly assist.
Kim Sow – Joint Leader of Immigration Marriage Fraud UK.
Immigration Marriage Fraud UK (IMFUK) on behalf of our current membership and that of other groups (circa 1000 members at any one time).