How to Effectively Show a Sham Marriage

The OVG Berlin-Brandenburg decided on March 16, 2007 (re 3 B 9.06) on a case where a citizen of a Non-Schengen country, not being able to prove the joint will of the desire for a married couple to cohabitate, applied without success for a residence permit.

Plaintiff is a citizen of Ghana, who married a Portuguese lady in Accra in 2003. She lives and works in Hamburg. The plaintiff applied permission to enter Germany to live with his wife. After separately interviewing both partners, the German embassy rejected the application. The embassy was of the opinion that this couple purposely arranged a sham marriage with the sole reason to allow the plaintiff to live in Germany. Comparing stereotypical stories of couples falling in love long-distance via exchange of pictures, and the lack of a joint language as well as differing religious beliefs all lead to the assumption that no cohabitation was ever planned. Furthermore, strikingly the parties filed for marriage before they even once met in person.

The plaintiff contradicted these assumptions. It was true that marriage was applied before personally meeting. However, that does not necessarily imply a marriage arrangement. Presuming, they would not have liked another when first meeting, they still could have cancelled the marriage application. In addition, the difference in religion is of no concern.

The Administrative Court, in the first instance held against the state and ordered it to change its decisions, i.e. to grant the plaintiff a residence permit to live with his wife. A witness was heard during trial and thereupon the court considered that there were no reasonable doubts left as to the seriousness of the marriage. The defendant, i.e. the Federal Republic of Germany being represented by its embassy and this represented by the Ministry of Foreign Affairs appealed the decision of the lower court. The state argued that the lower court case did not correctly evaluate the ambiguous statements of the plaintiff and his wife.

The plaintiff defended himself and presented the fact that his Portuguese wife had visited him, in the mean time, in Ghana for a month.

The Oberverwaltungsgericht Berlin-Brandenburg granted the appeal. The denying of a visa is lawful and the plaintiff has no right to demand the granting (§113 V 1 VwGO). The statutory right to follow one’s German/European spouse is guaranteed by the German federal constitution and the European Human Rights Convention (art. 6 I GG; art. 8, 12 EHRC). This right aims at giving residence to those persons who want to lead a life of a married couple. Leading the life of a married couple requires that two spouses want to cohabitate in an enduring attachment.

Following the general procedural rule: “He who wants something, must prove his entitlement.” and applying it to this case, the alien wanting to enter Germany has to prove all the incidents he alleges. He has to prove that he wanted a lead a real marriage with his formal wife. Since he could not prove this fact, the case had to be held against him.

The BVerwG was not at all convinced by the plaintiff’s arguments that they wanted to have a real marriage. Since a decision is made inside one’s mind you need other – objective – circumstances to prove this decision. Therefore anything shown in the real world will be considered as a hint to your mind. Important clues are how the couple met and the joint language between them are substantial hints. The couple in these proceedings kept mixing up dates. One spouse said they first phoned in February but the husband at first also agreed with this date but later only to state that their first call was in April/May. Their excuse “too much time in between” was no argument because the importance of these calls, real couples will pretty exactly know when they first started phone conversations. The details of the first year(s) might fade after several years cohabiting, but characteristic details are typically very clear during the initial time. The spouses also differed on how often and who called when courting. Further mismatch is that the spouses had no common language among one another. She had only simple command of English. Peculiar was also the admittance of the wife that she had no improvement of her command of English, which would be expected when seriously having to use it. Real couples would show a strong interest to deeply communicate with one another. This was not shown here.

They could not convince the court how and when they came to the decision that they wanted to marry one another. It appears very astonishing that the wife did not realize that she participated in a traditional or tribal marriage ceremony. It might be that she is not acquainted with such ceremonies from her own cultural background but then it is even more astonishing that her husband did not inform his wife of the marriage ceremony. Striking is also the wife missing knowledge of her husband’s family. Her numbers for brothers and sisters did not match reality. She could not say anything of their profession, names or other details.




Published on the old CMS: 2008/3/19
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