Mitigating the risk of marriages of convenience : a case for genuine link in modern citizenship law?

Abstract

Given the various influences that are acting on the citizenship debate and the multifaceted socio-political arguments that are weighing in on the discussion, the discourse on marriage of convenience (MOC) and genuine link can be challenging and controversial. The study set out to understand how the genuine link test can help to mitigate the abuse brought about by MOC. To do so, it adopts an interpretivist approach, based on the qualitative method, to try to understand the actuality of the situation that is being observed. This is primarily achieved by analysing and interpreting the data from interviews in the context of the complex forces that are understood to be at work. The findings from the interviews are crossed with those from secondary sources and the resulting outcome, whilst not decisive for the argument that a genuine link test can be an out-and-out solution to the challenges of MOC, appear to suggest that an overall strengthening of the relevant processes may help authorities to act more resolutely in situations where there are clear signs of abuse. As things stand, the relevant officers may be disposed to be over-cautious out of concern that they will be impinging on the rights of the party or parties in question. This proposal - which is not incongruent with the findings of previous research, specifically that of Gauci - implies that much blind faith may be being placed on the restraints that have been introduced by Act IV of 2000, which requires five years of continuous marriage to a Maltese spouse before the foreign partner can apply for Maltese citizenship. Whilst this legal provision is acclaimed as a ground-breaking achievement in the fight against MOC, this study lays down that more procedural surety for officers of the relevant authorities may help to provide a more consistent, transparent and efficient process that would work in more effective resonance with the legal frameworks that have been put in place over the years to combat this abuse.