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«The French National Contact Point: In France, the National Contact Point (NCP) of the European Migration Network (EMN) is the Secretary General for ...»

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First Focussed Study 2012

MISUSE OF THE RIGHT TO FAMILY REUNIFICATION:

MARRIAGES OF CONVENIENCE AND FALSE

DECLARATIONS OF PARENTHOOD

French contact point of the European migration network (REM)

March 2012

PRESENTATION OF THE FRENCH CONTACT POINT

The French National Contact Point:

In France, the National Contact Point (NCP) of the European Migration Network (EMN) is the Secretary General for Immigration and Integration of the Ministry of Interior.

The French National Contact Point is part of the Department of Statistics, Studies and Documentation, which facilitates access to statistics and data on migration and asylum, required for the elaboration of EMN outputs.

• Contacts

- Marie-Hélène AMIEL: marie-helene.amiel@immigration-integration.gouv.fr Head of the Department of Statistics, Studies and Documentation

- Raymond PRATS: raymond.prats@immigration-integration.gouv.fr Deputy head of the Department

- Ophélie TARDIEU: ophelie.tardieu@immigration-integration.gouv.fr Coordinator of the French National Contact Point of the European Migration Network

- Caroline MULLER: caroline.muller@immigration-integration.gouv.fr Policy Officer at the French National Contact Point of the European Migration Network

- Anne-Cécile JARASSE: anne-cecile.jarasse@immigration-integration.gouv.fr Policy Officer at the French National Contact Point of the European Migration Network

• Address Point de contact national du Réseau européen des migrations Département des statistiques, des études et de la documentation Secrétariat général à l’immigration et à l’intégration Ministère de l’Intérieur Place Beauvau 75800 Paris Cedex 08

• Websites

- EMN Website (in English): http://emn.europa.eu

- French NCP Website (in French): http://www.interieur.gouv.fr/Le-secretariat-general-a-l- immigration-et-a-l-integration-SGII/Europe-et-international/Le-reseau-europeen-des- migrations-REM First EMN Focussed Study 2012 Misuse of the right to family reunification: marriages of convenience and false declarations of parenthood

– MISUSE OF THE RIGHT TO FAMILY REUNIFICATION:

MARRIAGES OF CONVENIENCE AND FALSE

DECLARATIONS OF PARENTHOOD –

Study conducted by the National Contact for France of the European Migration Network (EMN) March 2012 Disclaimer: The FR EMN NCP has provided information that is, to the best of its knowledge, up-to-date, objective and reliable within the context and confines of this study. The information may thus not provide a complete description and may not represent the entirety of the official policy of France. The FR EMN NCP accept no responsibility or liability whatsoever with regard to the use made of the information contained in thisstudy.

–  –  –

EXECUTIVE SUMMARY

SECTION 1: NATIONAL LEGISLATIVE FRAMEWORK REGULATING THE

RIGHT TO FAMILY REUNIFICATION

1.1. Definitions of concepts in relation to marriages of convenience and false declarations of parenthood

1.1.1 Marriages of convenience

1.1.2 False declarations of parenthood

1.2 National legislation regulating the right to family reunification

1.2.1 Marriages of convenience

1.2.2 False declarations of parenthood

1.3 National legislation preventing misuse of the right to family reunification............ 12 1.3.1 Marriages of convenience

1.3.2 False declarations of parenthood

SECTION 2: THE SITUATION IN FRANCE

2.1 Perceptions of the extent of misuse

2.1.1 Marriages of convenience

2.1.2 False declarations of parenthood

2.1.3 Other forms of misuse

2.2 National means of preventing and detecting misuse

2.2.1 Marriages of convenience

2.2.2 False declarations of parenthood

2.3 Factors triggering an investigation by the authorities

2.3.1 Marriages of convenience

2.3.2 False declarations of parenthood

2.4 National authorities responsible for detecting misuse

2.4.1 Marriages of convenience

2.4.2 False declarations of parenthood

2.5 Penalties imposed against those misusing the right to family reunification........... 27 2.5.1 Marriages of convenience

2.5.2 False declarations of parenthood

2.6 Identified reasons and motivations for misusing the right to family reunification 28 2.6.1 Marriages of convenience

2.6.2 False declarations of parenthood

SECTION 3: STATISTICS ON MARRIAGES OF CONVENIENCE AND FALSE

DECLARATIONS OF PARENTHOOD

Specific indicator to assess intensity of the issue and characterics of those involved..

• Marriages of convenience

• False declarations of parenthood

CONCLUSION

BIBLIOGRAPHY

–  –  –

Family reunification, as part of this study, is understood as the procedure enabling:





- a third-country national legally residing in France to be reunified with the members of his family who are third-country nationals. This case comes under European regulation and the national legislation that transposed it (scenario a.);

- a mobile EU national coming to reside in France to be accompanied by or reunified with the members of his family, third-country nationals. This case comes also under European regulation and the national legislation that transposed it (scenario b.);

- a non mobile EU national to be re unified with the members of his family that are third-country nationals. In this case, family reunification entitles to residence on the basis of European jurisprudence. There is then a European protection on the basis of the treaty of the European Union (scenario c.1);

- a French national to be reunified with the members of his family that are thirdcountry nationals. In this case, only national legislation applies (scenario d.).

These four types of family reunification (4 scenarios) may apply to the spouse and/or children and/or to the parents of the French or European national and of the third-country national legally residing in France. Family reunification that may be adopted in various forms, such as comprised as part of this study, proves, generally speaking, to be one of the main means for foreigners to set up in France. There is a risk that this procedure may be misused and be used in an improper manner by certain persons to divert the rules relating to the entry and residence of third-country nationals in France. Two phenomena seem to have developed over recent years on the French territory to resort to family reunification as a migration channel without due cause: marriage of convenience, and false declarations of parenthood.

On the one hand, the bogus marriage (referred to as "sham marriage" or "marriage of convenience") is a marriage contracted for the sole purpose of getting an advantage (in particular for migratory purposes). Thus, the spouses let the marriage be celebrated only to get a result extraneous to the marriage (obtaining a residence permit or acquisition of nationality).

One shall note in France, since 2009, public authorities also refer to marriages by abuse (referred to as "mariage gris" - marriage contracted between two persons of different nationalities, one having seduced the other one to obtain certain rights). In this case the aim of one of the spouses, not disclosed to the spouse, is to obtain an advantage (obtaining a residence permit of the nationality of the host country). As part of the study, we will use the terms of marriage of convenience and of "mariage gris"(as there is no general translation for this term in English) to describe these two different phenomena. On the other hand, fraudulent parenthood exists in two different forms: those of falsified civil status documents (most often, birth certificate) or false recognitions/declarations of parenthood.

On the one hand, the study aims to highlight the national legislative framework regulating the right to family reunification (section 1). On the other hand, it seeks to determine the extent to which France is facing, in practice, misuses of this right studying especially the perceptions of 1 It is important to underline that the recent European jurisprudence following the Zambrano, McCarthy and Dereci decisions has little impact on French legislation relating to family reunification. Therefore, the French study will not refer to this scenario.

–  –  –

the different stakeholders of the extent of marriages of convenience and false declarations of parenthood and the means implemented to prevent, detect and combat them (section 2). One of the objectives of this study is also to assess the real scope of such fraudulent practices in France through relevant statistics (Section 3).

In France, the anti-marriage of convenience mechanism introduced in the Civil Code by Act no. 93-1417 of 30 December 19932 pertaining to various provisions relating to immigration control, was constantly intensified between the years 2003 and 2011. Indeed, Act no. 2003of 26 November 20033 relating to immigration control, residence of foreigners in France and nationality had improved the legal framework of the fight against bogus marriages. It also instituted a specific offence for the fact of contracting marriage for the sole purpose of getting or causing to get a residence permit. These same penalties apply in case of organisation or attempted organisation of a marriage or a recognition of child for the same purposes. Then, both Act no 2006-911 of 24 July 20064 relating to immigration and integration and Act no.

2006-1376 of 14 November 20065 relating to the checking of the validity of marriages, intensified the means to fight against the diversion of marriage for migratory purposes.

Details of application of the policy aimed at preventing and penalising bogus marriages have since been specified and intensified through circular CIV/09/10 of the Ministry of justice and liberties of 22 June 20106. In addition, Act no. 2011-672 of 16 June 20117 relating to immigration, integration and nationality completed the previous system recently, by instituting an offence for "mariages gris" and penalising them by the same penalties.

Today, marriages of convenience may be detected during various formalities before and after the marriage, both for marriages celebrated abroad and for those celebrated in France.

Indeed, checks take place before and after, i.e. before the celebration of the marriages, before the transcription of marriages celebrated abroad, before the issuance of a visa for France, before the first issuance of a residence permit, and afterwards every year at the time the temporary residence permit is renewed. Sincerity of the marriage and the reality of the community of life are in this way ascertained by the French law. When there are suspicions, a authorities are enabled by law to object to the marriage and subsequently to have it cancelled.

In addition to these prevention and detection means, there are also penalty tools that act as a deterrent on persons attempting to resort to a fraudulent marriage.

While false declarations of parenthood are recognised as a means to resort improperly to family reunification, one can notice, through this study, that public authorities do not take up so much this issue as they do that of marriages of convenience. When the sole aim of these false declarations is fraud, they are considered as a criminal offence based on Act no. 2006-911 2 Act no. 93-1417 of 30 December 1993 introducing various provisions relating to checking of immigration and amending the Civil Code http://legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000362870 3 Act no. 2003-1119 of 26 November 2003 relating to checking of immigration, stay of foreigners and to nationality http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000795635&dateTexte= 4 Act no. 2006-911 of 24 July 2006 relating to immigration and integration, http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000266495&dateTexte= 5 Act no. 2006-1376 of 14 November 2006 relating to checking of the validity of marriages, http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000275701 6 Circular CIV/09/10 of the Minister of justice and liberties of 22 June 2010, http://www.gisti.org/IMG/pdf/circ_civ0910_2010-06-22.pdf 7 Act no. 2011-672 of 16 June 2011 relating to immigration, integration and nationality, http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000024191380&categorieLien=id

–  –  –

of 24 July 2006. Today, French authorities try to tackle these problems via various tools that enable them to counter document fraud in particular. Moreover, exercising parental authority and taking charge of the financial and moral support of the child are prerequisites for obtaining the right for the child or parent to reside in France and therefore helps to prevent and detect fraudulent declarations when a residence permit is issued or renewed. It is one of the limited means available for detecting and fighting against fraudulent declarations.

Generally speaking, by dealing with these issues, French authorities get, on the one hand, the support of the aid organisations for victims of these two phenomena and, on the other hand, attract wrath of migrant support and aid associations. These associations denounce restrictive policies against the right to a normal family life. These issues are being regularly debated in France. To that effect, one shall note that in addition to the above mentioned stakeholders, the French media have been also regularly taking up these problems. Nevertheless, it is still difficult today to grasp these two issues. Indeed, while one cannot disprove their existence, it proves more complicated to assess their extent.



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