This Act was approved by Parliament on 14th May 2014, but as yet the provisions are not in force. Over the next few weeks members of the Immigration Team at Drummond Miller will be posting commentary on its provisions, but today we highlight some of the main changes made law by the Act. We also flag up some points of interest for those who are planning to get married/enter into a civil partnership in the UK.
Looking at the Act in general, it's part 2 of the Act and the changes to rights of appeal (at sections 15-19) to which anyone considering making an application to the Home Office (or overseas to a British Embassy or Consulate) should pay heed. Remember though, these provisions are not yet in force. They are on their way but as yet we do not know the exact date when they will become applicable law. In a nutshell, in the not too distant future, should your application be refused by the Home Office or the Entry Clearance Officer then you will only be able to appeal to the Immigration and Asylum Chamber on asylum or human rights grounds. In those cases where a person is denied a right of appeal the government have introduced something called "administrative review" whereby Home Office and Entry Clearance Officer decisions will be subject to an internal review. Administrative review is something this blog will return to shortly in future postings. These reviews will be important though in so far as they will build a person's case for a challenge by way of judicial review, which will be the only remedy available to those with no right of appeal. It is something we will return to.
There are changes to removal of family members where one family member is subject to removal, bail applications, biometrics and provisions which will oblige landlords to check an individual's immigration status before granting a tenancy, attempts to limit access to health care from the National Health Service and accessing driving licences from the DVLA.
What then of the new provisions on "sham" marriages and civil partnerships. These are found at sections 48-58 of the Act (section 53 provides for the Secretary of State to extend the scheme to Scotland, as yet we are not clear on when that order will be made).
The Act says that a registrar can refer a marriage to the Home Office for investigation and the Home Office will investigate the marriage if:-
a) They have reasonable grounds for suspecting that your proposed marriage or civil partnership is a sham AND
b) Only one of you is an EXEMPT person or neither of you are EXEMPT persons,
The next question to consider then is what is an EXEMPT person for these purposes?
An exempt person is: a) a British citizen b) a national of the EEA or Switzerland c) someone who has permanent residence in the UK under EU law d) a person who is exempt from immigration control (eg if you are a foreign national in the armed forces) e) someone with indefinite leave to remain f) a person with a visa issued to enter into a marriage or a proposed civil partnership.
Let's look at some examples: two British citizens getting married would both be EXEMPT and therefore their proposed marriage/civil partnership would not get investigated. A British citizen marrying a person with indefinite leave to remain would also not meet the criteria for an investigation. But what of a British Citizen marrying someone with Tier 4 leave, someone with no status, someone with the right to reside under EU law but who has not yet acquired permanent residence (unless you are a citizen of the EEA). These proposed marriages/civil partnerships would look ripe for investigation if there were also reasonable grounds for suspecting that the proposed marriage or civil partnership is a sham.
This is all very much hot off the press and practitioners are still trying to understand the implications of the Act. We will seek to post commentary over the next few weeks but the need to take timely advice on immigration problems has become even more pressing in the light of this Act. Do please contact the Immigration team of Drummond Miller LLP in Edinburgh and Glasgow should you need assistance.