On 26 September 2014, the Commission published a Handbook (‘Handbook on addressing the issue of alleged marriages of convenience between EU citizens and non-EU nationals in the context of EU law on free movement of EU citizens’) to assist Member States to take action against marriages of convenience between migrant EU citizens and third-country nationals, whilst ensuring that the rights that EU citizens derive from the EU free movement provisions are not unduly limited as a result of such action. As explained by the Commission in its Press Release, the Handbook was prepared ‘in close cooperation with Member States following requests by a number of EU countries for support in dealing with the phenomenon’; and the guidelines emerging from it will ‘help to ensure that national authorities address this phenomenon – the extent of which varies significantly between Member States – based on the same factual and legal criteria throughout the Union’.
Member State nationals – who, since 1993 are, also, Union citizens – are entitled to the right to move and reside freely within the EU. This right is bestowed by a number of different provisions (collectively referred to as ‘the free movement of persons provisions’) which are now found in the FEU Treaty, and is further elucidated in secondary legislation and, in particular, Directive 2004/38. Although this was (and still is) nowhere reflected in the Treaties, it has always been recognised that in order to ensure that Union citizens are not deterred from exercising the above right, they must be ‘guaranteed’ that its exercise will not lead to loss of the right to live with their family members or, more broadly, to a disturbance to the smooth functioning of their family life. Thus, family reunification rights have been considered a necessary accompaniment to the right to move and reside in the territory of another Member State derived from the Treaty.
For this purpose, since the 1960s, secondary legislation has provided for automatic family reunification rights for migrant Member State nationals, something which has proved particularly beneficial in situations involving migrant Union citizens with third-country national family members, since the latter can, as a result, join the former in the host Member State without having to undergo a prior individual assessment of their situation, which is (normally, i.e. in case EU law does not apply) required by Member State immigration rules. Family reunification rights for migrant Union citizens are now found in Directive 2004/38, which provides, inter alia, that migrant Union citizens are entitled to be accompanied or joined in the host State by their ‘spouse’, which clearly covers both third-country national spouses as well as spouses holding the nationality of a Member State (Article 2(2)(a) of Directive 2004/38).
The EU legislature and the CJEU have been aware of the danger of abuse of EU free movement rights, and, in the particular context of family reunification rights, of the danger that third-country nationals may enter into marriages of convenience with Union citizens, in order to bypass national immigration rules by activating the full gamut of rights that EU law grants to the family members of migrant Union citizens. Hence, Article 35 of the Directive provides that ‘Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31’. The above provision, nonetheless, merely recognises that Member States can adopt measures to tackle marriages of convenience and it does not explain what this really means or what it may entail.
(…) he Commission has been alert to the danger of considering a genuine couple as abusers and, hence, in this section it describes an approach that should be followed by national authorities in order to minimise the danger of considering a genuine couple as abusers (the ‘presumption of innocence’ and the ‘double-lock safeguard’), and provides a list of hints of abuse (i.e. certain behaviour traits that abusive couples are much more likely to present than genuine ones), which is divided into ‘several groups corresponding to inherent stages of “the life cycle” of marriages of convenience’
vía EU Law Analysis.