Changes to Marriage Rules for Non-EEA Nationals Wanting to Marry in the United Kingdom
The government continues to bring in new laws which are intended to create a hostile environment for those people without legal status in the United Kingdom. Amongst the latest changes are those relating to marriages and civil partnerships, with a view to tackling relationships which are a ‘sham.’ The Courts previously ruled against the government’s last scheme to tackle ‘sham’ marriages under the Certificate of Approval scheme holding it to be contrary to the right to marry under the European Convention of Human Rights. The government has therefore now introduced a more sophisticated scheme which does not actually prevent the marriage from taking place but allows for an in-depth investigation to take place over a prolonged notice period, which is intended to deter those thinking about entering into a ‘sham’ marriage.
A ‘sham’ marriage or civil partnership is one which the Home Office considers has been entered into by a couple who are not in a genuine relationship to try and gain an immigration advantage for one or both of them. The legal definition of a sham marriage is one in which
- one or both of the parties is not a British citizen or an EEA or Swiss national;
- there is no genuine relationship between the parties; and
- either or both of the parties is entering into the marriage or civil partnership for the purpose of circumventing UK immigration controls, including under the Immigration Rules or the Immigration (EEA) Regulations 2006.
The New Rules
Anyone wanting to marry in the United Kingdom must give ‘notice’ of their intention to do so. On 2 March 2015 changes were made to the process for giving notice of marriage or civil partnership, meaning that a longer notice period must now be given, increasing from 15 to 28 days, for all couples. However, the most substantial changes affect couples where one or both of the couple is a non-EEA national with limited permission to be in the United Kingdom or no permission to be in the United Kingdom. If such a couple gives notice to marry, there is now a legal obligation on the registrar of marriages to report this to the Home Office. Where such a report is made, the notice period the couple must complete before they can marry may be extended to 70 days. This is to allow the Home Office time to investigate whether the relationship and intended marriage between the couple is genuine or is a ‘sham’.
We set out below the main provisions affecting couples wishing to marry where one or both of the couple is a non-EEA national with either limited or no immigration status in the United Kingdom but it is important to obtain individual legal advice if you are affected by the changes:
Giving Notice of Intention to Marry or Form a Civil Partnership
If one or both of the couple is a non-EEA national who is not exempt from immigration control, notice must be given at a designated register office. When attending at the register office each of the couple will need to provide evidence of
- date of birth
- nationality and
- place of residence.
Depending on the nationality and immigration status of the couple, additional information, evidence and photographs may be requested in the following circumstances:
- The person has the appropriate immigration status.
Evidence of the person’s immigration status will need to be provided eg BRP card, passport etc
- The person holds a relevant visa in respect of the proposed marriage.
Each person must provide a specified photograph of him or herself and each person who holds a visa allowing him to marry will need to provide details of the relevant visa eg by showing the passport with the visa in
- The person neither has the appropriate immigration status, nor holds a relevant visa in respect of the proposed marriage.
In this case, each person must provide a specified photograph of him or herself and his or her usual address; where the person’s usual address is outside the United Kingdom, he or she must also provide an address in the United Kingdom at which he or she can be contacted by post. If either person has previously used any name or names different to the one in the notice, they must state this and equally, if a person is currently using or has previously used an alias, he or she must state this.
The registrar will be legally required to refer all marriage and civil partnership notices to the Home Office if one or both of the parties is a not an EEA national and is unable to prove that they have
(a) settled status in the UK (Indefinite Leave to Enter or Remain),
(b) a right of permanent residence in the United Kingdom under EU law,
(c) a marriage or civil partnership visa, or
(d) exemption from immigration control (e.g. the person has the right of abode in the UK).
If the Registrar reports the intention to marry to the Home Office, he will be required to tell the couple about the report and to explain to them the implications of this.
Home Office Decision to Investigate
The Home Office Guidance states that it will assess the referral made by the registrar against its own information designed to identify suspected sham marriages and civil partnerships. It will then consider whether there are reasonable grounds to suspect a sham marriage or civil partnership in the particular case referred to it. It may decide to investigate the proposed marriage or civil partnership where they have reasonable grounds to suspect a sham marriage and one or both of the couple is not
- a relevant national,
- a British citizen or
- an EEA or
- Swiss national;
- a person who has the appropriate immigration status,
- has permanent residence as an EU national or dependant or
- is exempt from immigration control, e.g. has the right of abode in the United Kingdom, is a member of a diplomatic mission or their family member, or is a member of HM forces or of Commonwealth forces undergoing training or visiting forces,
- is settled in the UK i.e. has Indefinite Leave to Enter or Indefinite Leave to Remain.
- Holds a relevant visa in respect of the proposed marriage or civil partnership,
- a marriage or civil partnership visitor visa granted under the Immigration Rules or
- a fiancé(e) or proposed civil partner visa or
- leave granted under or outside the Immigration Rules.
Reasonable Grounds for Suspecting a Sham Marriage
The Home Office will look at the following factors when deciding whether there are reasonable grounds to suspect a sham marriage:
- is either person an immigration overstayer or absconder or otherwise in breach of the conditions of their leave.
- has either person entered the UK illegally, or been removed from the UK and should not be here.
- has either person been convicted of a criminal offence or there is other evidence of links to criminality.
- is either person recorded as deceased.
- has either person previously obtained leave, or sought to do so, on the basis of deception or of false or forged documents.
- has either person got an outstanding immigration application based on their relationship with another spouse/partner, or previously sponsored, or been sponsored by, another spouse/partner to come to or remain in the UK.
- has either person got any other factor(s) in their immigration history which gives rise to a reasonable ground to suspect that the proposed marriage or civil partnership may be a sham.
The presence of one or more of these factors will not mean that the proposed marriage or civil partnership will automatically be investigated under the scheme but that additional scrutiny is needed in order to consider whether there are reasonable grounds to suspect that the proposed marriage or civil partnership is a sham.
Once the Home Office has made its decision on whether to investigate, it must give notice of its decision to both parties to the proposed marriage or civil partnership, and to the relevant registrar within the 28-day notice period. Where a decision to investigate has been made, the notice should also set out the requirements that the couple must comply with as part of the investigation and the consequences of not doing so.
It is also important to note that where the Home Office identifies that a proposed marriage or civil partnership involves an immigration offender, it may take appropriate enforcement action against that person, whether or not there are reasonable grounds for suspecting that the proposed marriage or civil partnership is a sham and whether or not it decides to investigate the proposed marriage or civil partnership under the scheme
Home Office Decision
Marriage Not Investigated
Where the Home Office decides not to investigate a proposed marriage or civil partnership, the notice of its decision enables the marriage or civil partnership to take place after the 28 day notice period, provided that the registrar is satisfied that there is no other reason the marriage cannot take place. However, a decision by the Home Office not to investigate a proposed marriage or civil partnership does not constitute a determination of the genuineness of the relationship on which it is based. If the marriage or civil partnership takes place, any decision taken on an application under the Immigration Rules or the Immigration (European Economic Area) Regulations 2006 to stay in the UK on the basis of the marriage or civil partnership will still be fully assessed by the Home Office including the genuineness of the couple’s relationship.
Where the Home Office decides to investigate the proposed marriage or civil partnership, the most appropriate means of investigation will be decided by the investigation officer on a case-by-case basis. The investigation may involve one or more of the following requirement(s) on one or both of the couple:
- To provide information, evidence or photographs.
- To be interviewed in person at home.
- To be interviewed in person at Home Office premises in or outside the UK or while detained in the UK.
- To be interviewed by telephone, video-link or over the internet.
Where the proposed marriage or civil partnership has been investigated, the couple may be able to marry depending on whether they have complied with the investigation or not. If the Home Office decides that either or both of the couple have failed without a reasonable excuse to comply with the investigation, they will not be able to marry or enter into a civil partnership on the basis of the notice they have given. They would need to give notice again if they still wished to marry or form a civil partnership. If the couple have complied with the investigation, they should be able to marry but any subsequent application to remain in the United Kingdom under the Immigration Rules or the Immigration (European Economic Area) Regulations 2006 will still be assessed in detail by the Home Office and not automatically granted.