Ad Hoc Query on the possibility of concluding a marriage between a European citizen and a third-country national who resides illegally on the territory
In the Czech Republic, a marriage can, under the current legislation, only take place if both parties have legal residence on the territory. By launching this AHQ, the Czech National Contact Point (NCP) to the European Migration Network (EMN) wanted to know more about the existing practices in other Member Countries.
The recent judgment of the European Court of Human Rights in O’Donoghue v the United Kingdom - in which the Court stated that the UK’s immigration law to prevent marriages of convenience breached the right to marry and was discriminatory (read the full judgment here) - sparked a discussion in the Czech Republic. In fact, under the current legislation, a marriage can only take place in the Czech Republic if both parties have legal residence on the territory. With this Ad-hoc Query, the Czech NCP wanted to know more about the existing practices in other Member Countries of the EMN.
The main findings of the ad hoc query are:
- Out of the 22 countries that provided a public answer to this ad hoc query, 13 countries allow marriages between European citizens and illegally staying third-country nationals. In these countries, residence status is not a condition for a marriage to be concluded. However, these types of marriages rarely occur, as third-country nationals who reside illegally on the territory are often not able to provide all other documents necessary to introduce a marriage request.
- However, even in countries where these marriages are possible from a legal standpoint, marriages of convenience must be avoided. Some countries have measures in place to make sure that the marriage is not concluded for the sole purpose of obtaining a right of residence. Such measures include interviews by the civil registrar, or more thorough investigations (which may involve the Police in certain cases). In most cases, however, the role of civil registrars in the processing of marriage applications is limited to checking the validity of the submitted documents.
- In the event that the third-country national is in administrative detention or a return procedure has been initiated, the impact of a marriage request varies across countries. In some, a marriage will not in itself be reason enough to suspend or interrupt administrative detention or a return procedure, but generally speaking, these cases will be analysed on an individual basis.
For additional information, please read the compilation of answers attached above.