In newly issued guidance published 19th August, the Home Office set out their interpretation and practice regarding perceived sham marriages and details the criminal offences which can result. A sham marriage (or civil partnership ) is one where the relationship is not genuine but one party hopes to gain an immigration advantage from it. There is no subsisting relationship, dependency, or intent to live as husband and wife or civil partners.
Under sections 24 and 24A of the Immigration and Asylum Act 1999, as amended by section 55 of the Immigration Act 2014, a sham marriage ( or civil partnership ) is one in which:
- one or both of the parties is not a British citizen or an EEA or Swiss national
- there is no genuine relationship between the parties
- either or both of the parties enter into the marriage or civil partnership for the purpose of circumventing (avoiding) UK immigration controls, including under the Immigration Rules or the Immigration (EEA) Regulations 2006.
Under European Union (EU) law marriages of convenience are defined as marriages contracted for the sole purpose of obtaining a right of free movement and residence under Directive 2004/38/EC (‘the Free Movement Directive’) to which someone would not otherwise be entitled. The key factor in a marriage of convenience is the absence of intention of the married couple to be involved in a genuine and subsisting marriage or relationship akin to marriage and the creation of a family unit.
Entering into a sham marriage does not entitle migrants any right to remain or reside in the UK.
With effect from 2 March 2015 a new referral and investigation scheme to tackle sham marriages and civil partnerships was introduced across the UK.
The new scheme, as provided for by part 4 of the Immigration Act 2014, requires all proposed marriages and civil partnerships in the UK involving a non-EEA national who could benefit in immigration terms to be referred to the Home Office and to be investigated under an extended notice period of 70 days.
The Immigration Act 2014 makes a major reform of the preliminaries (preparations) for marriage and civil partnership. With effect from 2 March 2015 the Immigration Act 2014 extended the notice period from 15 days to 28 days for all couples wishing to marry following civil preliminaries. Where the Home Office has reasonable grounds to suspect a sham and at least one of the parties is not exempt from the scheme, a decision to investigate whether the marriage or civil partnership is a sham will be taken. Notification of that decision to the relevant registration official will have the effect of extending the notice period from 28 days to 70 days.
It is not a mandatory 70 days period of investigation in all cases where a person is subject to immigration control.