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The Right to Marry and Start a Family

The Right to Marry and Start a Family The Right to Marry and Start a Family  The right to marry is part of Article 12 of the ECHR and Article 9 of the EU Charter of Fundamental Rights in EU law. contained in the article. Marriage includes the right to form a relationship and a […]

The Right to Marry and Start a Family

The Right to Marry and Start a Family 

The right to marry is part of Article 12 of the ECHR and Article 9 of the EU Charter of Fundamental Rights in EU law. contained in the article. Marriage includes the right to form a relationship and a family. This is quite different from the right to respect for family life, which relates to families seeking immigration clearance based on existing family relationships. The Right to Marry and Start a Family
European states imposed restrictions on the right to marry, as arranged marriages were seen as a way to circumvent immigration controls.

The Right to Marry 

A fake marriage (or arranged marriage) is a marriage made for the sole purpose of immigration “to circumvent rules of entry and residence only”208 and with no intention of sharing in cohabitation or other social aspects of the marriage. Knowingly facilitating a fraudulent marriage is a criminal offense in many jurisdictions.
Forced marriage is when one (or both) spouses do not want the marriage. Forcing a person into marriage is a criminal offense in many jurisdictions. In practice, it can be difficult to distinguish forced marriage from fake marriage, especially when it comes to “official marriages”.
Arranged marriage can include different situations, from a situation close to forced marriage to the free and voluntary choice of a spouse among the candidates who are carefully researched by the person’s family and selected according to the suitable qualifications. There is very little about forced marriage in Europe in terms of legal measures or legislation. The Right to Marry and Start a Family
Sample:
In the UK Supreme Court’s 210 Quila case, 277 of the Immigration Rules – raised the minimum age of entry and settlement from 18 to 21 for both parties. It was asked whether banning foreign spouses or same-sex partners from entering the country for the purpose of settling in paragraph 2 is a lawful way to deter or prevent forced marriage. Based on the case-law of the ECtHR, the Supreme Court overturned the judgment, holding that the refusal to issue a marriage visa violated Article 8 of the ECHR. In this case, the Supreme Court held that there was no logical connection between such a general rule, which did not allow exceptions, and forced marriage, as there was no suspicion of forced marriage.

Under EU Law,

Under EU law, fake marriage for immigration led to the adoption of Council Decision 97/C382/01 at EU level. This resolution reflected the concerns of European states about arranged marriage and listed the elements that show that marriage is consensual.
Laws on free movement of people often remain silent on the possibilities of allowing the fiancee to emigrate, preferring to focus on family arrangement or reunification. The only principle that can be applied by those who want to obtain an entry permit for their spouse who will be abroad is the principle of non-discrimination.
Under the ECHR, The Right to Marry and Start a Family
According to the ECtHR, pursuant t o the case-law of the ECtHR, the state may impose reasonable conditions on the right of a third country national to marry in order to detect and, if necessary, prevent the planned marriage as fraudulent. Consequently, the state’s examination of foreign nationals’ marriages to determine whether they are fraudulent or not does not constitute a violation of Article 12 of the ECHR. Accordingly, foreign nationals may be required to report their marriage to the competent authorities and, if necessary, provide information about their immigration status and the reality of the marriage. However, in a recent case, the ECtHR held that the requirement for persons subject to immigration control to apply for a certificate of consent before being allowed to marry in the UK raises serious concerns, if not inherently objectionable. The Right to Marry and Start a Family
Sample:
O’Donoghue v. the United Kingdom211 concerns marriage barriers in the United Kingdom. Persons subject to immigration control had to obtain permission from immigration authorities before entering into a civil marriage unless they chose to marry in an English church ceremony. The ECtHR found that this scheme was not logically linked to the reduction of fraudulent marriages, as only the applicant’s immigration status was decisive in deciding whether to issue the requested certificate and there had been no investigation into whether the marriage was genuine. The court held that this order violated Article 12 of the ECHR. It was also considered discriminatory in terms of religion; because marriages made only in the Church of England were not required to obtain a certificate of consent. The Court also found that the fees charged for the certificates in question were excessively high and that no reduction or waiver was offered to those in need. The Right to Marry and Start a Family
Complaints under the ECHR regarding the refusal of a fiancee to enter the country for the purpose of marriage are relatively rare.

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