Zawieranie małżeństw polsko-cudzoziemskich w celu obejścia przepisów legalizacyjnych

• Main Author: Klaus Witold
• Format: Article
• Language: English
• Published: Instytut Nauk Prawnych PAN 2016-01-01
• Series: Archiwum Kryminologii
• Subjects: małżeństwa polsko-cudzoziemskie; przepisy legalizacyjne; kryminologia; foreign nationals; legalization of residence; criminology; marriages
• Online Access: http://czasopisma.inp.pan.pl/index.php/ak/article/view/53/klaus_zawieranie_malzenstw_polsko-cudzoziemskich_w_celu_obejscia_przepisow_legalizacyjnych_10.7420AK2016L.pdf

In a changing and increasingly globalized world, in which migration is on the rise, more and more frequently marriages are being entered into between people of different nationalities, and also, often enough, of different confession or ethnicity. Many scholars claim that the widespread nature of this phenomenon may, in fact, attest to a high level of integration of the migrants into the society and their resultant social acceptance. On the other hand, various studies reveal that in numerous societies mixed marriages are not generally approved of. Marriage may be perceived very differently, depending on the actual perspective or an approach opted for when putting it under closer scrutiny. For some, its key component will consist in the relationship between two individuals forming it, others will be happy to see rather as a primary building block of a society, a kind of social nucleus, others still, first and foremost in business terms. Finally, marriage may also be looked upon as a means of controlling and oppressing women. In different domains of the law, the institution of marriage is bound to be perceived very differently. In terms of immigration law, marriage is perceived first and foremost as an instrument for the legalization of a foreign national’s residence in another country. Marriage may also be looked upon as a certain source of risk, including that to public security. The very fact of its conclusion may be considered a criminal offence, e.g. in the case of forcing someone into entering into such a relationship. A number of countries face a recognized problem of the so-called forced marriages. In terms of immigration law, the problem consists in making an instrumental use of the institution of marriage in order to legalize one’s residence in the country. This is referred to as a marriage of convenience, or paper marriage, fictitious union, sometimes also referred to as fake marriage. Under Polish law, they are subsumed under the term “marriages contracted in order to circumvent the legislation in place,” i.e. presumably the Foreign Nationals Act. There are various definitions of virtual marriages to be found in the literature on the subject. They are referred to as relationships in which at least one of the partners contracts a marriage with no intention of pursuing true married life whatsoever. Other definitions highlight a purely instrumental use of the institution of marriage in order to achieve certain benefits, usually with a view to being granted a bona fide residence status, but also for the purpose of escaping from oppressive family relations or cultural pressures exerted by a social group to which they happen to belong. Relevant EU provisions recommend that the Member States introduce mechanisms for the monitoring of mixed marriages and make references to specific cases whereupon a fictitious marriage might well be suspected. Polish legal regulations have been duly adapted to them (provisions of Article 169, Foreign Nationals Act). The number of cases in which provincial governors agreed that a marriage had been contracted in order to circumvent the legislation in place is not high. Over 10 years, only 1,178 of such cases have been identified throughout the country, which accounted for just over 2% of all decisions on legalizing a foreign national’s residence in the country in connection with contracting a mixed marriage. The paper presents the results of a representative sample of residence legalization cases, whereupon provincial governors found marriages to have been contracted under false pretences in the period spanning 2009–2013. A total of 138 of such cases were examined. A vast majority of the surveyed marriages subsequently found to be fictitious was based on the paradigm most popular in the Polish context, i.e. a female Polish citizen marrying a foreign national (72% of cases). Most often, such marriages were contracted by Nigerian nationals, followed by Armenians, Turks, and Ukrainians. The residence in Poland of around a half of the expats might be regarded as a short-term one (as it would not last in excess of 3 years), another 25% might can be described as medium-term migrants, and the remainder, the long-term ones, since they had lived in Poland country for over 10 years. Nigerians and foreign nationals from South Asia and the Mediterranean countries did not usually spend more than three years in Poland, whereas our eastern neighbours and the Armenians tended to stay for at least 4 years, and frequently more than 10 years. A vast majority of married couples, almost 70% of all cases, first met in Poland. In 13% of the cases, they met in another EU country – usually during a longer sojourn of female Polish citizens in that country, or, in a single case, a male Polish citizen. Most foreign nationals marrying Polish women (69%) were over 26 and under 40. There were relatively few older ones, i.e. those over 40 years of age. The average age of female Polish citizens married by them was different, though, as the group of younger ones, i.e. up to 30 years of age, seemed to be dominant. The group of older women, i.e. over 50 years of age, also is quite prominent. In very few cases it was possible to determine during the residence legalization procedure that the spouses had concluded a formal agreement regarding the fictitious nature of their marriage, which would also have its financial aspect: a Polish national was due to receive money in exchange for contracting marriage to a foreign national. Such an aspect was encountered in 15 cases only, and most often the information came from a Polish national who felt cheated out of the payment of the amount originally promised to him/her. When determining the fictitious nature of a marriage, the officials were often aided by the spouses themselves – in 2/3 of the cases under investigation at the time of filing an application for the legalization of residence, they no longer lived together (although sometimes it was due to the fact that the husband still lived abroad having just applied for the right to claim residence in Poland, yet such cases were rather few, as was indicated above). Following an on-site verification whether a married couple actually lived together for the duration of the administrative proceedings, it transpired that in up to 91% of the cases they did not, including the 42 cases, when one of the spouses explicitly described the relationship as over. Polish citizenship as a ‘commodity’ has steadily grown in value in view of the attendant opportunity to obtain legal residence in other EU countries and contracting employment without the need for any permits. Hence, many people are ready to go to any lengths to obtain such a highly prized document. Consequently, the phenomenon of marriages of convenience is expected to rise. On the other hand, this particular type of motivation for contracting marriage by foreign nationals is, and most likely will remain rather hard to detect, so we might just as well acknowledge this as a hard fact of life. There will always be various ways to circumvent legal regulations. While constructing the legislation aimed at preventing fictitious marriages, it should be considered how much effort and resources we are prepared to allocate to preventive measures, to what extent they are expected to be effective (since often they are not, despite the substantial expenditures incurred), and to what extent we can afford to limit the citizens’ rights in this particular respect. When making incursions into someone’s family life and interfering with their marital relations, this is definitely an issue of paramount importance. Finally, it should be borne in mind that marriage is a kind of social contract, and that it has always been so. Marriage out of love is a relatively new concept, and related to a larger extent to a cultural fabric of the global North. In other cultures, marriage has often retained its historical character. One simply needs to acknowledge and accept it as a fact of life when shaping migration policy.