Introduction
Marriage and civil partnership provisions
Secondary legislation
How will changes be rolled out?
Are the changes welcome?
Are the changes cause for concern?
Should immigration advisers prepare for the changes?
Future developments


Introduction

Under the Immigration Act 2014, private landlords are required to check the immigration status of tenants and may be liable to a civil penalty if they do not do so. The home secretary has been given the power to deprive a naturalised individual of his or her right to British citizenship and new powers have been created in order to clamp down on sham marriages and civil partnerships. Further, banks will have to check the immigration status of individuals before opening an account and individuals in the United Kingdom unlawfully will be unable to obtain a driving licence. Unless otherwise stated, the provisions will enter into force on a day appointed by the secretary of state.

Marriage and civil partnership provisions

The act received royal assent on May 14 2014. It touches many areas of life which interact with immigration law, including changes to the procedures for marriage and civil partnership in the United Kingdom. The changes are found in Part 4 of the act and some of the new laws will affect all proposed marriages and civil partnerships in England and Wales, regardless of the nationality or immigration status of the parties to the marriage.

From the date of commencement, the standard notice period for marriages and civil partnerships will increase from 15 days to 28 days. This will apply to everyone, irrespective of nationality.

The provisions targeted at non-European Economic Area (EEA) nationals are more far reaching.

Currently, parties to a marriage are exempt from civil preliminaries if they instead comply with ecclesiastical preliminaries in advance of their marriage in either the Church of England or the Church of Wales. However, this exemption will no longer apply to non-EEA nationals.

Where notice of a marriage or civil partnership is given and one party to the marriage or civil partnership is a non-EEA national who is not exempt from immigration control, there will be an automatic referral by the registrar to the Home Office if the marriage or civil partnership could result in an immigration advantage. Details of changes to the duty to make a referral are set out in Schedule 4 of the act.

The definition of 'exempt person' includes:

  • British nationals;
  • EEA nationals;
  • foreign nationals not subject to immigration control;
  • persons with settled status or permanent residence; and
  • persons with entry clearance, such as a fiancé or proposed civil partner.

Following automatic referral to the Home Office, the secretary of state must decide whether to investigate the proposed marriage or civil partnership. In order to conduct an investigation, the secretary of state must be satisfied that:

  • either one of the parties to the marriage or civil partnership is exempt or neither of the parties is exempt; and
  • there are reasonable grounds to suspect that the proposed marriage or civil partnership is a sham.

The government's factsheet on sham marriages and civil partnerships states that referrals will be "assessed against intelligence-based risk profiles and factors, together with reports from registration officials of suspected sham cases and other information". A decision as to whether to investigate must be made within the 28-day notice period.

If an investigation is embarked on, the notice period is extended to 70 days to allow the secretary of state to look into the proposed civil partnership or marriage. During that period, the secretary of state must decide whether the parties to the proposed marriage or civil partnership have complied with the investigation. Compliance with an investigation will mean that the couple can marry irrespective of the outcome of the investigation. However, if the couple comply but are still deemed to be entering a sham marriage, they will be unable to derive an immigration advantage from the relationship. The Home Office will also look to take enforcement action and prosecute where appropriate.

The act has also changed the definitions of 'sham marriage' and 'sham civil partnership'. Pursuant to the new definition, in order to be deemed a 'sham' there must be no genuine relationship between the parties.

There are expanded powers of disclosure of information between registration authorities and the secretary of state. Information will be disclosable for:

  • immigration purposes;
  • verification purposes; and
  • the prevention of crime.

There are additional changes to the process for giving notice and the way that the scheme operates.

The act also contains provisions for the extension of the scheme to Scotland and Northern Ireland.

Secondary legislation

The secretary of state has powers to make regulations regarding the evidence provided in determining nationality and immigration status. These regulations can also specify the consequences for failure to provide suitable evidence and when evidence can be retained. The regulations are due to be published in consultation with the registrar general.

Powers have also been given to the secretary of state to make provision by regulations regarding the giving of notices in accordance with Part 4 of the act and relating to the referral of proposed marriages and civil partnerships.

The secretary of state can publish guidance on the circumstances in which investigation of a proposed marriage or civil partnership is appropriate.

The conduct of any investigations into proposed marriages and civil partnerships is to be governed by regulations and guidance published by the secretary of state for this purpose. This includes specifying which requirements must be met as part of the investigation by the parties to the marriage or civil partnership.

As part of the investigation process, it is crucial that the parties to the proposed marriage or civil partnership comply with any relevant requirements specified by the secretary of state. Regulations published by the secretary of state will clarify what it means to fail to meet a particular requirement, as well as the consequences for failure to comply.

How will changes be rolled out?

Sections 56, 59 and 62 and Schedule 6 of the act entered into force on July 14 2014. Section 56 deals with amendments to registrars' duty to report sham marriages where they have advance knowledge of them. Section 59 introduced Schedule 6, which permits greater disclosure of information between registrars and the secretary of state, and between registrars and registration authorities. Section 62 contains definitions for this part of the act.

Other changes, including those concerning investigation, have not yet entered into force and there is no date for their commencement. Changes should only affect people giving notice on or after commencement and should not apply retrospectively.

Are the changes welcome?

The amendment to the definition of a 'sham' marriage or civil partnership is welcome. Previously, a marriage or civil partnership was defined as a 'sham' if one or more parties was a non-EEA national who had entered into the marriage or civil partnership "for the purpose of avoiding the effect of one or more provisions of UK immigration law or the immigration rules". Therefore, a marriage or civil partnership could theoretically have been considered a 'sham' even if there was a genuine relationship between the couple. While this may rarely cause problems in practice, the clarification introduced by Part 4(2) of the act is still welcome.

Are the changes cause for concern?

There are numerous concerning features of these changes.

The automatic referral process means it is likely that the secretary of state will become more involved at an earlier stage in proposed nuptials where one party is not exempt, and it may become increasingly common for couples to face increasing scrutiny of their relationship before their marriage or civil partnership. The details of these investigations and how onerous the investigations will be remain to be seen. The extent of the investigations will be set out in regulations to be determined by the secretary of state, but it may prove a significant interference into a private relationship.

Depending on the nature and conduct of these investigations, genuine couples could be deemed to be entering a sham relationship and then have little recourse to challenge these outcomes in order to remain together in the United Kingdom. It seems likely that couples will look to challenge decisions through greater use of judicial review.

The new rules permit the secretary of state, in consultation with the registrar, to make further provision with regard to the documentation which must be provided to give notice. By imposing increasingly specific requirements for acceptable identity documentation, it will become increasingly difficult for couples to get past the first hurdle in order to marry or enter into a civil partnership.

Should immigration advisers prepare for the changes?

If immigration advisers are advising clients who are planning to marry or enter into a civil partnership, they may want to advise them to give notice sooner rather than later. The changes should not apply to those who gave notice before commencement.

In addition, where one party to a proposed marriage or civil partnership is not an exempt person, it may be advisable to provide evidence of the genuineness of the relationship when giving notice. While the regulations specify the type of evidence required to give notice, such evidence may help to fend off suspicion from the registrar that the proposed union is a sham.

Future developments

It is likely that it will become more difficult for couples to marry when one party is subject to immigration control. More couples may travel abroad for their big day, where they are not subject to such a high level of scrutiny and suspicion.

For those who do marry in the United Kingdom and are subject to an investigation, an increase in the number of judicial reviews is likely as couples seek to challenge decisions of the secretary of state. However, until further details are published about the nature, conduct and frequency of such investigations, it is difficult to predict how many couples will be affected.

For further information on this topic please contact Katie Newbury at Kingsley Napley by telephone (+44 20 7814 1200), fax (+44 20 7490 2288) or email (knewbury@kingsleynapley.co.uk). The Kingsley Napley website can be accessed at www.kingsleynapley.co.uk.