The Referral and Investigation of Proposed Marriages and Civil Partnerships (Scotland) Order 2015

EXPLANATORY NOTE

(This note is not part of the Order)

This Order extends the referral and investigation scheme for sham marriages and civil partnerships contained in the Immigration Act 2014 (c. 22) to proposed marriages and civil partnerships in Scotland.

The Scheme is principally extended by way of amendments to the relevant legislation that applies in Scotland.

Schedule 1 to the Order amends the Marriage (Scotland) Act 1977 (c. 15) (“1977 Act”). Paragraph 2 inserts new sections 3A to 3F. Sections 3A to 3C require those who are not relevant nationals (a definition of relevant national is inserted by paragraph 8) to provide specified information and evidence at the same time as they submit notice of intention to marry and declare in writing that that information and evidence is true. Section 3D permits the district registrar to reject that information or evidence, or any evidence that may have been required by the district registrar in respect of a person’s nationality, if it is suspected to be false. Section 3E treats notice as not submitted if certain information or evidence has not been provided. Section 3F requires a district registrar to refer a proposed marriage to the Secretary of State for possible investigation if the district registrar has decided that one or both of the parties is not an exempt person. An exempt person is a person who is a relevant national, is a non-EEA national with an EU right of permanent residence, is exempt from immigration control, is settled in the United Kingdom or has a relevant visa. What constitutes a relevant visa will be specified in regulations made by the Secretary of State. Section 3F(7) also introduces new Schedule 1A to the 1977 Act. This Schedule sets out the modifications that will apply to the 1977 Act when a marriage has been referred to the Secretary of State under section 3F. In particular, this Schedule makes provision for an extended waiting period whereby a marriage schedule may not be completed (and thereby the marriage may not go ahead) if the Secretary of State gives notice that she intends to investigate whether the proposed marriage is a sham.

Paragraph 5 inserts a new section 6(4ZA) and (4ZB) and paragraph 7 inserts a new section 19(1ZA) and (1ZB). Where a proposed marriage has been referred to the Secretary of State under section 3F, any request to reduce the period in which the marriage schedule may be completed (section 6) or issued (section 19) may only be authorised by the Registrar General with the consent of the Secretary of State, unless the request is made because one of the parties is gravely ill and not expected to recover.

Paragraph 6 inserts a new section 6A which will enable a district registrar to refuse to complete a marriage schedule where he or she has reasonable grounds for suspecting that the decision that a party to the marriage was an exempt person (see above) was made incorrectly because of the provision of false information or evidence.

Schedule 2 makes consequential amendments to section 21 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19) (“2004 Act”), whereby a marriage notice may only be submitted to the district registrar in a prescribed registration district. Unless both parties to a proposed marriage are exempt from immigration control or relevant nationals they will be required to submit their marriage notice to such a district registrar (up until now it was those subject to immigration control who were subject to this requirement).

Schedule 3 makes the equivalent amendments to those made by Schedules 1 and 2 and described above to Part 3 of the Civil Partnership Act 2004 (c. 33). Except that the equivalent amendments to the provisions contained in section 21 of the 2004 Act, which are contained in Schedule 23 to the Civil Partnership Act 2004, are made by the Referral and Investigation of Proposed Marriages and Civil Partnerships (Northern Ireland and Miscellaneous Provisions) Order 2015 (S.I. 2015/395).

Schedule 4 amends Part 4 of the Immigration Act 2014 to give effect to the referral and investigation scheme established by that Part to proposed marriages and civil partnerships under the law of Scotland (and referred to the Secretary of State by virtue of the amendments made to the 1977 Act and Part 3 of the Civil Partnership Act 2004 by Schedules 1 and 3 of this Order).

Schedule 5 makes provision for the disclosure of information where a proposed marriage or civil partnership is referred to the Secretary of State and for immigration purposes. It permits the disclosure of information to the Secretary of State by district registrars and the Registrar General for Scotland and from the Secretary of State to district registrars and the Registrar General for Scotland. It makes equivalent provision to that made by Parts 1, 2 and 4 of Schedule 6 to the Immigration Act 2014 in respect of England and Wales.

No impact assessment has been produced for this Order but an impact assessment was produced for the proposals now contained in Part 4 of the Immigration Act 2014 and which considered many aspects on a UK-wide basis. It is published at https://www.gov.uk/government/publications/immigration-bill-part-4-marriage-and-civil-partnership.