Around 3,000 couples in England and Wales will tie the knot tomorrow (Saturday 15 February). According to a Home Office guestimate between 48 and 123 of these marriages will be ‘sham’, which is to say they will not be ‘genuine and subsisting’ as required by UK Immigration Rules. But what does a ‘genuine’ marriage look like?
It is not a matter of coincidence that the etymology of ‘genuine’ derives from the Latin for “native, natural” and shares a root with the claim for paternity (‘genus’). Love based on ‘chemistry’ or a ‘natural connection’ is considered the principle ingredient of marriage in most western countries today. The couple who gave their primary reason for marrying as money, status or any reason other than being ‘in-love’ would be considered unusual, if not abnormal. A ‘genuine’ marriage is a story of eyes meeting across the crowded room (the force of nature), of shared customs and outlook (a ‘native’ of one’s own culture/class/religion/region/etc), whose union will give birth to future members of the nation. The Rules pertaining to spousal immigration are both a reflection of the existing cultural norms of the majority ethnie, and a representation of an ideal-type of ‘marriage’ used in order to define in-group membership and exclude the undesirable.
Before July 2012 this grand narrative was an unspoken assumption which legal representatives avidly embraced when it suited their case, or decried as cultural racism when it did not. Appendix FM and its accompanying Annex, however, brought this narrative not merely into the open, but into both law and policy.
If you sit down and read Appendix FM, with its sections entitled ‘Suitability’ and ‘Eligibility’, it is hard not to envision Lady Bracknell – “Pencil and notebook in hand” instructs Wilde (1895) in the stage directions to The Importance of Being Earnest, as she sits down to quiz the genuine-Earnest-but-at-this-point-sham-Jack-Worthing as regards to his suitability and eligibility for marriage to her daughter:
I feel bound to tell you that you are not down on my list of eligible young men, although I have the same list as the dear Duchess of Bolton has. We work together, in fact. However, I am quite ready to enter your name, should your answers be what a really affectionate mother requires. Do you smoke? … How old are you? … What is your income? … In land, or in investments?
Our Victorian-style Coalition Government got out its own paper and pen in Annex FM 2.0 to instruct its officials on how to assess genuineness. The guidance states that such an assessment “is not a checklist or tick-box exercise” but then provides a checklist of six factors associated with genuineness and twenty-two factors associated with ‘sham’ marriages. Five of the six positive factors hold that genuineness is demonstrated through practices which might be commonly associated with a secular modern couple: evidence of a long-term relationship, cohabitation, having children together, sharing a mortgage, or visiting each other’s home countries. For arranged marriages there is one, only one, positive factor, which focuses on consent, but there are six negative factors which associate ‘arranged’ with ‘forced’. A further five negative factors raise the issue of immigration history, including having previously sponsored a spouse or having been sponsored in this category: ‘genuine’ transnational and arranged marriages must last a lifetime.
Also included are not sharing financial or domestic responsibilities, not knowing much about the life of the UK spouse, not having “a shared understanding of the core facts of their relationship”, or having few people at the wedding: all factors which might be common for the newlyweds of an arranged marriage. The guidance acts both to exclude, by defining some culturally different practices as ‘sham’, and to reify, by limiting arranged marriages to a ‘one-size-fits-all’ paradigm.
The Immigration Rules and Guidance as of July 2012 tell us quite clearly what a genuine marriage looks like, and honesty, responsibility and compassion have no role to play here. Indeed, if you have experience as a nurse and your would-be partner needs care then according to Annex FM this is cause to believe your marriage a sham. The rich have genuine marriages, the middle-classes – providing they have a joint mortgage – may be deemed authentic, and the educated who can spin a good yarn might convince. For the poor, uneducated, or culturally-inexperienced, suffering the double blow of Appendix FM and the loss of Legal Aid, ‘genuineness’ comes at a cost: specifically, the price of a good lawyer.
This post draws on the extended argument presented in the author’s ‘Displaying Genuineness: cultural translation in the drafting of marriage narratives for immigration applications and appeals’ in Families, Relationships and Society (forthcoming).