Do the sham marriage provisions in the new bill comply with human rights conventions?
Amid the debates around the new Immigration Bill 2013-14 – currently centred on deportation and the removal of citizenship – also sit a raft of new measures on sham marriages and civil partnerships.
Measures on sham marriages are of supreme interest for a number of reasons: civil liberties, religious beliefs, the reasonable power of government. In this instance they are perhaps even more interesting, as the new bill attempts to replace previous regulations found in breach of the European Convention on Human Rights (ECHR).
In 2004 Section 19 of the Asylum and Immigration Act 2004 set out the Certificate of Approval scheme (COA). The scheme was intended to guide UK law on sham marriages and civil partnerships, and outline the methods of dealing with cases of infringements.
In 2008, however, the COA scheme was found to be incompatible with Articles 12 and 14 of the ECHR. Forced to reconsider its position, the state has consequently included sham marriage provisions in the new Immigration Bill. Having just passed its third reading in the House of Commons, the bill seeks regulatory change, and to execute legally most of the aims originally set by the COA.
The provisions have, therefore, come under scrutiny. Do the new regulations indicate a new focus? What do they look like? And will they be found compatible with the ECHR?
Why the COA scheme was illegal
Section 19 of the Asylum and Immigration Act 2004 set out the COA scheme controlling right to marry. Section 19 was not itself found incompatible with the right to marry, but the Home Office’s internal guidance, which detailed the scheme, was.
In Baiai,  UKHL 53, the House of Lords found that the COA scheme constituted disproportionate interference with the Article 12 right to marry because it restricted the right to marry to a greater extent than restricting sham marriages. It prohibited people from exercising the right to marry on the basis of their immigration status. The COA scheme was not rationally aimed at preventing sham marriages or a proportionate response to the legitimate aims of a fair and firm immigration policy. Illegal migrants, those who were granted less than six months’ leave and those with less than three months’ leave remaining at the time of applying for a COA were all prohibited from marrying under the COA scheme, regardless of the genuineness of the proposed marriage.
The COA scheme was also incompatible with Article 14 (discrimination) because the exemption from the scheme for parties to Anglican marriages is discriminatory against everyone who is excluded from Anglican marriage.
The Immigration Bill
Right to marry
The Immigration Bill provisions on sham marriages and civil partnerships are likely to withstand a challenge that they are incompatible with the ECHR right to marry, because the bill does not propose to prevent any marriages. Rather, the marriage or civil partnership can go ahead but the Home Office will not grant immigration leave on the basis of a marriage or civil partnership that it has concluded is a sham.
To the extent that the Immigration Bill provisions interfere with the right to marry, they address the problems the House of Lords found with the COA scheme.
First, the Immigration Bill focuses on sham marriages and civil partnerships. Under the proposed primary legislation, the secretary of state can only conduct an investigation as to whether a marriage is one of convenience if she has reasonable grounds to suspect that the proposed marriage is a sham.
Second, the Immigration Bill prohibits the secretary of state from overtly requiring a visa of a particular duration or an extant duration of leave. However, a version of the requirement for three months of extant leave could be revived in practice because of the permitted 70-day duration of the investigation. Migrants could effectively be prevented from marrying or entering into civil partnerships in the UK where they have less than 70 days’ leave at the time of registering their intent to marry, because they should leave the UK if their leave expires whilst the investigation is ongoing.
Third, the Immigration Bill provides for delaying a proposed marriage and a national authority’s ability to do so is established in case law.
Fourth, the Immigration Bill requires parties to provide documentation, at the time of registering notice of intent to marry, of whether they are a relevant national (British, EEA or Swiss national), have the appropriate immigration status (permanent residence, settlement or exempt status) or have a relevant visa (fiancé or proposed civil partnership visa). This is likely to be seen as what the House of Lords referred to as the imposition of reasonable conditions.
The parties can be refused the right to marry or enter into a civil partnership if they fail to comply with the investigation. This is likely to be seen as what the House of Lords referred to as the imposition of reasonable conditions.
In a clear change to the previous regulations, the Immigration Bill does not exempt Anglican marriages or marriages under any other faith from the proposed scheme to prevent an immigration advantage being gained from a sham marriage. Therefore, the new scheme is unlikely to be found discriminatory.
The legality of the new scheme could be challenged on the regulations to be drafted for the bill regarding the determination of whether there is a genuine relationship between the parties.
It is therefore significant for migrant partners that the government seeks to substantially narrow Article 8 rights under the Immigration Bill. The bill requires a court or tribunal to have regard to public interest consideration when determining whether a decision is in breach of Article 8. Public interest considerations listed in the bill include that migrants speak English and are financially independent. The bill also states that little weight should be given to private life or a relationship formed when a person is in the UK unlawfully, or to private life formed when a person’s immigration status is precarious.
Should the sham marriage provisions in the bill be enacted and supported by regulation, the courts’ views on their compatibility with the ECHR are sure to fuel the ongoing wider debates on immigration.
Samar Shams is a practice development lawyer in the employment, reward and immigration team at Lewis Silkin LLP