The Home Office has today published new guidance for its decision makers and investigation officers covering:
- the factors to be considered when deciding to investigate a proposed marriage or civil partnership which has been referred to the Secretary of State on the grounds that one or both or the partners is neither a citizen of the UK or another EEC country or Switzerland and who might be considered to be gaining an immigration advantage from such a marriage or civil partnership;
- the conduct of an investigation in these circumstances; and
- in deciding whether or not each of the parties to a proposed marriage or civil partnership subject to an investigation under the scheme has complied with that investigation (“the compliance decision”).
The guidance arises from provisions of the Immigration Act 2014 which, from 2 March 2015 have extended the marriage and civil partnership notice period from 15 days to 28 days for all couples in marrying following civil preliminaries or forming a civil partnership, and required all couples involving a non-European Economic Area (non-EEA)/non-Swiss national who wish to marry in the Anglican Church in England and Wales to complete civil preliminaries and give notice at a register office and be subject to the 28-day notice period.
The Act also provides the basis for the introduction of “a referral and investigation scheme for proposed marriages and civil partnerships across the UK involving a non-EEA national who could benefit in immigration terms”
This scheme requires that “All proposed marriages and civil partnerships in the UK involving a non-EEA national with limited or no immigration status in the UK, or who does not provide specified evidence that they are exempt from the scheme , are to be referred to the Secretary of State by the registration official.”
The guidance explains that “The Secretary of State will assess all referrals against intelligence- and evidence-.based risk profiles and other information to identify suspect proposed marriages and civil partnerships, and then consider in these cases whether there are reasonable grounds to suspect a sham marriage or civil partnership. Where the Secretary of State has reasonable grounds to suspect a sham and at least one of the parties is not exempt from the scheme, she may decide to investigate whether the marriage or civil partnership is a sham.”
In the event that suspicion does arise the official responsible for registering the marriage or civil partnership will service a direction on the couple which has the effect of notice period from 28 days to 70 days in order to allow the Home Office “to investigate and take appropriate enforcement or casework action where a sham is established.” During this time the couple will be unable to get married or enter into a civil partnership on the basis of that notice if they do not comply with an investigation under the scheme.
The guidance directs that an investigation will be carried out whenever:
A) One of the parties stands to benefit in immigration terms from the marriage/civil partnership; and
B) Where there is suspicion that “there is no genuine relationship between the parties”, and the proposed marriage/civil partnership is therefore a “sham”.
The factors to be taken into consideration to decide whether the proposed marriage might be a sham include assessment against risk factors which arise from reports by marriage registration officials on activities concerning these matters in their local areas with an additional review of the immigration record of the parties and any additional information concerning their criminal activity.
Where these facts are present and it is otherwise considered warranted the parties may be subject to additional scrutiny to determine whether there are reasonable grounds to suspect that the proposed marriage or civil partnership is a sham.The guidance goes on to provide further directions on the conduct of investigations, including, the purpose of investigation; the means by which it shall be conducted; the provision of information, evidence or photographs; and the interviewing of the parties.