Investigation of marriages under the Immigration Act 2014
The Immigration Act 2014 makes provision for the Home Office to investigate whether marriages may be sham marriages or marriages of convenience during an extended notice. This is the period after the couple have notified the registrar of their intention to marry and before the marriage is able to take place. If a decision is made to investigate, the notice period will be extended from 28 days to 70 days.
The Immigration Act 2014 at section 48(2) provides that, if a referral is made to her by a superintendent registrar, the Secretary of State must decide whether to investigate whether the proposed marriage is a sham. This section of the 2014 Act goes on to state:
“(3)The Secretary of State may not decide to conduct such an investigation unless conditions A and B are met.
(4)Condition A is met if the Secretary of State is satisfied that—
(a)only one of the parties to the proposed marriage or civil partnership is an exempt person, or
(b)neither of the parties are exempt persons.
(5)Condition B is met if the Secretary of State has reasonable grounds for suspecting that the proposed marriage or civil partnership is a sham.
(6)In making the decision whether to investigate, regard must be had to any guidance published by the Secretary of State for this purpose.
The Secretary of State has published Guidance in the form of the Immigration Act 2014 marriage and civil partnership referral and investigation scheme: statutory guidance for Home Office staff, of March 2015. Regard must be had to this Guidance under section 48(6) above. It provides guidance as to the assessment of Conditions A and B.
As regards Condition A, an exempt person is defined essentially a person who does not need leave to remain in the UK or has a visa in respect of the proposed marriage. For example, condition A will be met when one party is an EEA national (an exempt person) and the other party has leave to remain as a student.
As regards condition B, Guidance is provided regarding factors which may indicate that there are reasonable grounds for suspecting that the proposed marriage is a sham. The ‘risk profile’ in the Guidance indicates there may be reasonable grounds where a party:
- Is an immigration overstayer or absconder or otherwise in breach of the conditions of their leave.
- Entered the UK illegally, or has been removed from the UK and should not be here.
- Has been convicted of a criminal offence or there is other evidence of links to criminality.
- Is recorded as deceased.
- Is currently or has previously been the subject of a section 24/24A report.
- Has previously obtained leave, or sought to do so, on the basis of deception or of false or forged documents.
- Has an outstanding immigration application based on their relationship with another spouse/partner, or has previously sponsored, or been sponsored by, another spouse/partner to come to or remain in the UK. This factor may also
This is said in the guidance to be an “intelligence- and evidence-based risk profile”.
The guidance goes on to say that:
“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. …”
It is to be hoped that real scrutiny is applied to each individual case. Some of these criteria such as ‘has committed a criminal offence’ are extremely broad. A previous conviction for the offence of entering a sham marriage might reasonably cause suspicion, whereas an offence of careless driving should be disregarded as irrelevant.
The Guidance says that
“….The decision maker must take into account all the information available to them about both parties and the proposed marriage or civil partnership. The decision should be informed but not solely determined, by the presence of one or more of the factors mentioned above. The decision maker must consider the available information as a whole on a case-by-case basis.
However, there is no process set out in the 2014 Act or Guidance for the couple to provide information to the Home Office in order to inform a decision as to whether to investigate. Given this Guidance, however, it seems that if a couple were to provide evidence to the Home Office, it would have to be considered before a decision was taken to investigate.
Once a decision is made to investigate, the Guidance provides that
“the most appropriate means of investigation will be considered by the investigation officer on a case by case basis, taking account of all the relevant information and evidence already available to them about the relevant parties and their proposed marriage”.
Under section 51(1) of the 2014 Act, where the Secretary of State decides to investigate whether a proposed marriage or civil partnership is a sham, the parties will be notified of this and will be told in this notification how to comply with the investigation and that if they fail to comply with the investigation they will not be permitted to marry on the basis of the notice given to the Registrar and will have to give notice again if they still wish to marry or enter a civil partnership.
Any investigation must comply with the Proposed Marriages and Civil Partnerships (Conduct of Investigations, etc) Regulations 2015. The Guidance provides a broad discretion for investigating officers but indicates specifically the following permissible methods of conducting an investigation:
Requiring one or both of the parties to:
- provide information, evidence or photographs;
- be interviewed in person at home;
- 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
If the Home Office decides that a proposed marriage or civil partnership is a sham, enforcement action may be taken against the parties.
The Guidance also indicates that not all those who fulfil conditions A and B will be investigated and that for operational reasons some couples will not be. Therefore, the Guidance goes on to say that a decision not to investigate a proposed marriage or civil partnership does not constitute a determination as to the genuineness of the relationship on which it is based. Therefore, an application based on a marriage or civil partnership that was not investigated may still be refused on the grounds that it was a sham or marriage of convenience.
For expert advice in relation to a marriage investigation under the Immigration Act 2014 or assistance with challenging a finding of marriage of convenience, contract our immigration barristers in London on 0203 617 9173 or via our online enquiry form.