Government announces Lasting Power of Attorney “revamp”
This article was first published in Lexis Nexis on 23 June 2014 as part of a series of articles on the implications of the Immigration Act 2014.
Under the Immigration Act 2014 (IA 2014), private landlords will be 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 is also given the power to deprive a naturalised individual of their right to British citizenship, and new powers are created in order to clamp down on sham marriages and civil partnerships. Further, banks will be have to check the immigration status of individuals before opening an account and those unlawfully in the UK will not be able to obtain a driving licence. Unless otherwise stated the provisions come into force on a day appointed by the Secretary of State.
What are the main provisions about marriage and civil partnership?
IA 2014 received royal assent on 14 May 2014 and touches on many areas of life which interact with immigration law. This includes changes to the procedures for marriage and civil partnership in the UK. The changes are within IA 2014, Pt 4 and some of the new laws will impact 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 and this will apply to everyone irrespective of nationality.
The provisions targeted at non-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 at 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/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/civil partnership could result in an immigration advantage being derived. The details of changes to the duty to make a referral are set out in IA 2014, Sch 4.
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 as a fiancé or proposed civil partner.
Following the 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:
The government's Factsheet on sham marriages and civil partnerships stated 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 upon, the notice period is extended to 70 days to allow the Secretary of State to look into the proposed civil partnership/marriage. During that period of time, the Secretary of State will need to decide if the parties to the proposed marriage/civil partnership have 'complied' with the investigation. Compliance with an investigation will mean 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 not be able to derive an immigration advantage from the relationship. The Home Office will also look to take enforcement action and where appropriate to prosecute.
IA 2014 has also changed the definitions of 'sham marriage' and 'sham civil partnership'. In order to be deemed a 'sham', pursuant to the new definition there must also 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 some other changes to the process for giving notice and the way the scheme operates.
IA 2014 also contains provision for the extension of the scheme to Scotland and Northern Ireland.
What matters will be left to secondary legislation?
The Secretary of State has powers to make regulations regarding the evidence to be 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. These regulations are 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 IA 2014, Pt 4 and relating to the referral of proposed marriages and civil partnerships.
The Secretary of State is empowered to publish guidance on the circumstances when investigation of a proposed marriage/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 what requirements must be met as part of the investigation by the parties to the marriage/civil partnership.
As part of the investigation process, it is crucial that the parties to the proposed marriage/civil partnership comply with any relevant requirements specified by the Secretary of State. What is classified as a failure to meet a particular requirement, together with the consequences for failure to comply will be set out in regulations published by the Secretary of State.
How will these changes be rolled out?
Sections 56, 59 and 62 and Sch 6 will come into force 14 July 2014. Section 56 deals with amendments to the duties on registrars to report sham marriages where they have advance knowledge of them. Section 59 introduced Sch 6 which permits greater disclosure of information between registrars and the Secretary of State and between registrars/registration authorities. Section 62 contains definitions for this Part of IA 2014.
The other changes, including those concerning investigation have not yet come into force and there is no date yet for commencement. Changes should only impact people giving notice on or after commencement and should not apply retrospectively.
Are any of these changes welcome?
The amendment to the definition of a 'sham' marriage/civil partnership is a welcome change. Prior to this change, a marriage/civil partnership was defined as a 'sham' if one or more parties was a non-EEA national who had entered into the marriage/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/civil partnership could theoretically be considered a 'sham' even if there was a genuine relationship between the couple. While this may have rarely caused a problem in practice, the clarification introduced by IA 2014, Pt 4, Ch 2 is still welcome.
Are any of these changes cause for concern?
There are numerous concerning features of these changes.
The automatic referral process means it is likely 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 prior to their marriage/civil partnership. The detail of these investigations and how onerous the investigations will be remains to be seen as this will be set out in regulations to be determined by the Secretary of State but it may prove to be 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 very little recourse to challenge these outcomes in order to remain together in the UK. It seems likely that couples will look to challenge decisions through greater use of judicial review.
The new rules permit the Secretary of State to, in consultation with the Registrar, make further provision with regard to the documentation which must be provided to give notice. By imposing increasingly specific requirements for identity documentation that will be accepted, it can become more and more difficult for couples to get past the first hurdle in order to marry/enter a civil partnership.
What should immigration advisers be doing to prepare for the changes?
If they 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 prior to commencement.
In addition, where one party to a proposed marriage/civil partnership is not an exempt person, it may be advisable for them to have to hand evidence of the genuineness of their relationship when giving notice. While the regulations will specify evidence to be supplied to give notice and in any investigation, such evidence of a relationship may help fend off suspicion from the registrar that the proposed union is a sham.
Do you have any predictions for future developments?
It seems likely that it will become more difficult for couples to marry when one party is subject to immigration control. To this end, 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 UK and are subject to an investigation, it is likely we will see an increased number of judicial reviews as couples seek to challenge decisions of the Secretary of State. However, until more details are published about the nature, conduct and frequency of such investigations, it is hard to predict with accuracy how many couples will be impacted.
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