24 Oct 2016, 03 mins ago

From 2 March 2015, new provisions of the Immigration Act 2014 will come in to force. The provisions will extend the marriage and civil partnership notice period from 15 days to 28 days for all couples in England and Wales marrying civilly or forming a civil partnership.

In addition, a new referral and investigation scheme will also be implemented where the marriage involves a non-EEA national who could benefit in immigration terms. The new provisions state that a non-EEA national with limited leave or no immigration status in the UK, or who can not provide evidence that they are exempt from the scheme, will be referred to the Home Office. Where there are reasonable grounds to suspect a shame marriage, the notice period will be extended to 70 days in order to investigate and take appropriate enforcement action.

These new provisions will only apply to those who give notice of marriage after 2 March 2015.

The Home Office press release states: 
“By extending the notice period and channelling to the Home Office all proposed marriages and civil partnerships which could bring an immigration benefit, the new system will give us much more time and information to identify and act against sham marriages and civil partnerships before they happen and, where they do go ahead, we will have the evidence we need on file to be able to refuse any subsequent immigration application in terms which will withstand appeal.”

This is seen by some critics as a backdoor to extending the enforcement obligations on immigration officers to registrars who will now be obliged to report to the Home Office. This could result in person being detained and possibly removed to prevent the marriage taking place.

Those of us who have been around long enough in the immigration field will recall the Home Office brought in a scheme requiring all non-EEA nationals to obtain a certificate of approval (COA) for marriage from the Home Office. That law was struck down as unlawful in 2011 after 5 years of litigation, and the scheme was abolished. It would seem that this new obligation imposed on registrars is a backdoor to reintroducing an obligation to notify the Home Office of any potential marriage. It is likely there will be litigation relating to whether these new provisions breach a persons right to marry afforded by Article 12 of the European Convention on Human Rights.