It has been announced today by Minister for Security and Immigration James Broken-shire that Part 4 of the Immigration Act 2014 is to be brought into full effect on 2 March 2015. This amends the procedure for marriage and civil partnership for everyone (not just foreign nationals) and creates new powers for duties to report sham marriages and the investigation and preventing of sham marriages.

The Home Office estimates that under the new provisions, 35,000 marriages per year will need to be referred to the Home Office for potential investigation and that 6,000 marriages will be investigated.

What will change about getting married?

In future notice of all marriages in England and Wales will be doubled from 15 to 28 days. Further, where one of the parties to the marriage is a non-EEA national marrying in the Church of England (or Church in Wales), the parties will need to undertake civil preliminaries and will no longer be able to use Banns instead.

The 28 day notice period can be reduced on application where there are compelling reasons to do so because of exceptional circumstances. The Registrar General can still authorise marriage in death bed cases without the notice period being complied with.

Where one of the parties is a non EEA national, both parties to a marriage will need to attend in person to give notice at a designated Registry Office and for notice to be taken specified evidence, including specified evidence of nationality, must be provided.

Where one of the parties is a non EEA national and might gain “immigration advantage”, the notice of marriage must be referred to the Home Office. In addition, if the registrar “has reasonable grounds for suspecting that the marriage will be a sham marriage” (s.24 Immigration Asylum Act 1999) then a section 24 notice is also sent to the Home Office.

If the Home Office decides not to investigate then the Home Office should inform the registrar and the marriage can proceed after the conclusion of the normal 28 day notice period. If the Home Office does decide to investigate further, then the notice period is extended to 70 days to allow time for the investigation.

The Home Office may prevent the marriage taking place where the parties fail to co-operate with the investigation.

Who is affected?

Anyone wishing to marry is affected by the extended notice period of 28 days.

All couples involving a non EEA national wishing to marry in the Anglican Church will need to undertake full civil preliminaries.

Any couple where at least one party is subject to immigration control and does not have settled status, or permanent residence under EU law, or is not exempt from immigration control, may be subject to investigation where there are reasonable grounds to suspect a sham.

Risk factors are said by the Home Office to be where a party to a marriage:

• Is of a nationality at high risk of involvement in a sham, on the basis of objective information and intelligence about sham cases.
• Holds a visa in a category linked by objective information and intelligence to sham cases.
• Has no immigration status or holds leave which is due to expire shortly.
• Has had an application to remain in the UK refused.
• Has previously sponsored another spouse or partner to enter or remain in the UK.
• Is or has been the subject of a credible section 24/24A report, which explains for example how the couple could not communicate in a common language and did not know basic information about each other.

In addition, the evidence requirements may well affect a significant number of those wishing to marry depending on the final form of the implementing regulations. For example, the Home Office had proposed that where a person asserts he or she possesses EU law permanent residence, an otherwise optional permanent residence card must be produced.

What is a “sham marriage”?

Sham marriages receive a new definition substituted into section 24 of the Immigration Act 1999:

(5) A marriage (whether or not it is void) is a “sham marriage” if—

(a) either, or both, of the parties to the marriage is not a relevant national,

(b) there is no genuine relationship between the parties to the marriage, and

(c) either, or both, of the parties to the marriage enter into the marriage for one or more of these purposes—

(i) avoiding the effect of one or more provisions of United Kingdom immigration law or the immigration rules;

(ii) enabling a party to the marriage to obtain a right conferred by that law or those rules to reside in the United Kingdom.

(6) In subsection (5)—

“relevant national” means—

(a) a British citizen,

(b) a national of an EEA State other than the United Kingdom, or

(c) a national of Switzerland

“United Kingdom immigration law” includes any subordinate legislation concerning the right of relevant nationals to move between and reside in member States.”

So, only foreigners may be involved in a sham marriage, and a precondition is that the relationship is not “genuine”. There is no statutory definition of “genuine”. We must trust Home Office civil servants to determine that for us. They will no doubt be guided by their policy document Genuine and Subsisting Relationship (Annex FM Section FM 2.0), which carefully states that there is no checklist for judging relationships before setting out a checklist for judging relationships.

Factors that are said to be associated with a genuine relationship are:

(i)  The couple are in a current, long-term relationship and are able to provide satisfactory evidence of this.

(ii)  The couple have been or are co-habiting and are able to provide satisfactory evidence of this.

(iii)  The couple have children together (biological, adopted or step-children) and shared responsibility for them.

(iv)  The couple share financial responsibilities, e.g. a joint mortgage/tenancy agreement, a joint bank account and/or joint savings, utility bills in both their names.

(v)  The partner and/or applicant have visited the other’s home country and family and are able to provide evidence of this. (The fact that an applicant has never visited the UK must not be regarded as a negative factor, but it is a requirement of the Immigration Rules that the couple have met in person).

(vi)  The couple, or their families acting on their behalf, have made definite plans concerning the practicalities of the couple living together in the UK. In the case of an arranged marriage, the couple both consent to the marriage and agree with the plans made by their families.

Factors that are said to be suggestive of a sham are one or more of (remember that one of these is enough to trigger suspicion it seems):

(i) If the marriage or civil partnership took place in the UK, a report – of a suspected sham marriage or civil partnership — was made by the registration service under section 24 of the Immigration and Asylum Act 1999.

(ii) The applicant or partner makes a public statement that their marriage is a sham. An application can be refused on the basis of such a public statement alone.

(iii) The applicant or partner makes a public statement (not in confidence) that they have been forced into marriage. An application can be refused on the basis of such a public statement alone.

(iv) A sibling of the partner or applicant has been forced into marriage.

(v) The applicant, partner or an immediate family member of either is or has been the subject or respondent of a forced marriage protection order under the Forced Marriage (Civil Protection) Act 1997 or the Forced Marriage etc (Protection and Jurisdiction) (Scotland) Act 1999.

An application can be refused on the basis alone of a current order involving the applicant or partner.

(vi) There is evidence from a reliable third party (e.g. the Forced Marriage Unit, police, social services, registration service or a minister of religion) which indicates that the marriage is or may be a sham marriage or a forced marriage. (It may not be possible for this information to be used in any refusal notice). The fact that a third party indicates that in their opinion a marriage, partnership or relationship is genuine must not be afforded any weight.

(vii) The applicant or partner does not appear to have the capacity to consent to the marriage, partnership or relationship, e.g. owing to learning difficulties, and independent evidence, e.g. from a social services assessment, has not been provided to confirm that such capacity exists.

(viii) There is evidence of unreasonable restrictions being placed on the applicant or partner, e.g. being kept at home by their family, being subject to unreasonable financial restrictions, attempts to prevent the police or other agencies having reasonable, unrestricted access to the applicant or partner.

(ix) Failure by the applicant or partner to attend an interview, without reasonable explanation, where required to do so to discuss the application or their welfare, or seeking to undermine the ability of the UK Border Agency to arrange an interview, e.g. by unreasonable delaying tactics by the couple or a third party.

(x)  The couple are unable to provide any information about their intended living arrangements in the UK or about the practicalities of the applicant moving to the UK.

(xi)  The circumstances of the wedding ceremony or reception, e.g. no or few guests and/or no significant family members present.

(xii) The couple are unable to provide accurate personal details about each other (e.g. name, age, nationality, employment, parent’s names and place of residence), provide inconsistent evidence, or do not have a shared understanding of the core facts of their relationship, e.g. how and where they met for the first time.

(xiii) The couple are unable to communicate with each other in a language understood by them both.

(xiv) There is evidence of money having been exchanged for the marriage to be contracted (unless this is part of a dowry).

(xv)  There is a lack of appropriate contribution to the responsibilities of the marriage, partnership or relationship, e.g. a lack of shared financial or other domestic responsibilities.

(xvi)  Matrimonial co-habitation is not maintained (except where one party is working or studying away from home) or there is no evidence that they have ever co-habited since the marriage.

(xvii)  The applicant is a qualified medical practitioner or professional, or has worked as a nurse or carer, and the partner has a mental or physical impairment which currently requires medical assistance or personal care in their own accommodation.

(xviii) The partner has previously sponsored another partner to come to or remain in the UK.

(xix)  The partner has previously been sponsored as a partner to come to or remain in the UK (i.e. the partner has obtained settlement on this basis) and that marriage, partnership or relationship ended shortly after the partner obtained settlement. This excludes circumstances where the partner is a bereaved partner, or where the partner obtained settlement on the basis of domestic violence perpetrated by their former partner.

(xx)  If the partner was married to or in a partnership with the applicant at an earlier date, married or formed a partnership with another person, and is now sponsoring the original partner to come to or remain in the UK.

(xxi) The past history of the partner and/or the applicant contains evidence of a previous sham marriage or forced marriage, or of unlawful residence in the UK or elsewhere.

(xxii) The applicant has applied for leave to enter or remain in the UK in another category and been refused.

One of the two lists is notably longer than the other. My particular favourite is that evidence from the other party to the relationship or a third party that the relationship is NOT genuine can be taken into account, but any positive evidence cannot. The reference to “appropriate contribution to the responsibilities of the marriage, partnership or relationship” is frankly nobody else’s business and both laughably subjective and horrendously judgmental. Not pulling your weight? Your marriage is a sham!

This is serious business. For reasons that can only be imagined, the Home Office insists on raiding the marriage ceremony itself, as in the case of Isabella Acevedo’s daughter. This checklist determines who will experience that sort of start to their married life. As with many measures under the Immigration Act 2014, ethnic minorities and the poor are far, far more likely to be targeted. As Natasha Carver previously wrote on this blog, “honesty, responsibility and compassion have no role to play here” (The Importance Of Being Genuine).

Further reading:

• Home Office information sheet (November 2014)
• Government background information document (November 2013)
• Government impact assessment (September 2013)

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