By Satyajit Boolell, SC
According to media reports, marriages of convenience or “sham marriages” are on the increase at an alarming rate. For the first quarter of the year, some eleven cases involving African and European nationals are being investigated. They involve foreign workers who have overstayed their work permit and fake students who have entered Mauritius on student visas and whose visas have now expired.
What is a marriage of convenience and how do we define it for legal purposes?
Our law does not specifically deal with sham marriages but instead lays down the conditions for a non-citizen to marry a citizen of Mauritius in the relevant provisions of Part IV of the Civil Status Act. It requires strict compliance with these conditions since a non-citizen automatically acquires the status of a resident of Mauritius by virtue of being a spouse of a citizen of Mauritius. The Civil Status Act accordingly provides for the publication of a proposed civil marriage by a non-citizen. Once published, any person who has any ground to object to the celebration may in turn lodge a notice of objection of the proposed marriage with the Registrar of Civil Status. It is at this stage that the authorities can intervene to prevent a marriage of convenience.
If the genuineness of the proposed marriage is suspected, the Home Affairs Division of Prime Minister’s Office (with the concurrence of Passport and Immigration Office) will lodge a notice of objection of the proposed marriage with the Registrar of Civil Status. The Registrar will in turn convene the parties, enquire into the matter and decide whether to uphold or reject the objection. The decision of the Registrar can in turn be challenged on appeal to a Judge in Chambers, who can order to quash or uphold the decision of the Registrar.
In the case of Vikram Sing v Registrar of Civil Status & Ors 2017 SCJ 35, the applicant Vikram Sing a non-citizen, had made a publication of his proposed marriage to a citizen of Mauritius in August 2016. The Home Affairs Division of the Prime Minister’s Office suspecting the genuineness of the marriage had raised an objection to the effect that “as a non -citizen, (he was) trying by all means to marry a Mauritian citizen for the sole purpose to acquire automatically the status of resident”. The Judge in Chambers, Mrs A. D. Narain upheld the decision of the Registrar taking into account the fairness of the hearing before the Registrar. She acquiesced implicitly that the sole purpose of the marriage was one of convenience to enable the appellant to acquire the status of resident.
The meaning of “sole purpose” can be gathered from a recent judgment delivered by the UK Supreme Court, in Sadovska v SoS for the Home department  UKSC 54 . In that case, Miss Sadovska who had lived and worked in UK lawfully for several years had intended to marry one Mr Malik, a Pakistani citizen who was unlawfully staying in UK since his student visa had expired for some years. In compliance with the law, they published their intention of the proposed marriage. On the day they went to the Registrar’s Office to get married, they were both questioned by the UK immigration authorities and arrested on the grounds that the marriage was one of convenience.
In other words, in line with the EU Directive 2004/38/EC which was applicable to UK as Member State of Europe, the marriage was being “contracted for the sole purpose of enjoying the right of free movement and residence (in UK) under the Directive that someone would not have otherwise”. That was the decision of the Immigration Tribunal which was subsequently challenged and it went all the way to the UK Supreme Court.
The UK apex court made two important qualifications to the notion of “sole purpose”. First, “the notion of ‘sole purpose’ should not be interpreted literally (as being the unique or exclusive purpose) but rather as meaning that the objective to obtain the right of entry and residence must be the predominant purpose of the abusive conduct.”
Second, it pointed out that “a marriage cannot be considered as a marriage of convenience simply because it brings an immigration advantage, or indeed any other advantage.”
Moreover, the Supreme Court addressed the question of “onus of proof” in such cases. It stated that one of the most basic rules of litigation is that “he who asserts must prove.” It was not for Ms Sadovska to establish that the relationship was a genuine and lasting one. It was for the authorities (Home Department) to establish that it was indeed a marriage of convenience. The onus is therefore on the immigration authorities to establish that the marriage is one of convenience and not the other way round.
In the Sadovska case, both Ms Sadovska and Mr Malik claimed their rights under the European Convention of Human Rights. Article 8.1 guarantees the right to respect for private and family life, although under Article 8.2 interference is justified if it is in accordance with the law and “necessary in a democratic society” to achieve a legitimate aim. Article 12 guarantees the right of “men and women of marriageable age… to marry and to found a family, according to the national laws governing the exercise of (the) right.”
Similar human rights guarantees were sought in the case of Vikram Sing. However, the judge gave little credence to these guarantees stating that the right to marry “the person of one’s choice or “liberté nuptiale”, while being “d’ordre public” and enshrined in international human rights instruments to which Mauritius is a party, is subject to the laws of the land where the marriage is to be celebrated.
Finally, it should not escape the vigilance of our investigators that a marriage of convenience is arguably a conspiracy contrary to section 109 of the Criminal Code (Supplementary) Act as it entails an agreement between two persons to commit a wrongful act, which is against public order. Whilst the non-citizen is likely to face a deportation, his or her local accomplice may well have to answer a charge of conspiracy in court.
Satyajit Boolell, SC
Director of Public Prosecutions
ODPP Newsletter – November 2017
* Published in print edition on 8 December 2017