A Guide to Home Office Marriage Investigations
In This Article
1. Understanding Home Office Marriage Investigations
2. Referral and Investigation Criteria Under the Immigration Act 2014
3. What Are Sham Marriages?
4. The Marriage Investigation Process: What to Expect
5. Obligations During an Investigation: Compliance Is Key
6. The Compliance Decision and Its Implications
7. Consequences of Non-Compliance
8. Key Takeaways on Home Office Marriage Investigations
9. Contact Our Immigration Barristers
10. Frequently Asked Questions
11. Glossary
1. Understanding Home Office Marriage Investigations
Part 4 of the Immigration Act 2014 (‘the 2014 Act’) introduced a number of measures aimed at tackling so-called ‘sham marriages’, entered into for the purposes of circumventing UK immigration rules and obtaining permission to enter or stay in the UK. These included the introduction of a scheme for the referral of proposed marriages and civil partnerships to the Home Office for investigation. This article will consider the process and content of marriage investigations under the 2014 Act.
2. Referral and Investigation Criteria Under the Immigration Act 2014
The changes brought in through the Immigration Act 2014 require the relevant registration authorities to refer all proposed marriages or civil partnerships in which one or both of the parties are not exempt persons to the Home Secretary.
Exempt persons are relevant nationals (British or Irish citizens, or persons with status under the EU Settlement Scheme or with a pending application or appeal under the Scheme, where the application was submitted prior to 01 July 2021), persons with settled status or those exempt from immigration control, and persons who hold a valid marriage or civil partnership visitor visa or a valid fiancé(e) visa or proposed civil partner visa.
The Home Office will then make a decision whether to investigate the proposed marriage or civil partnership during an extended notice period (the period after the couple have given notice of their intention to marry/enter a civil partnership in accordance with the relevant legislation and before the marriage/civil partnership is able to take place). If a decision is made to investigate, the notice period will be extended from 28 days to 70 days.
Section 48(3) of the Immigration Act 2014 provides that the Home Secretary may only decide to make an investigation if two conditions, specified in sections 48(4) and 48(5), are met. These are that:
- The Home Secretary is satisfied that either or both of the parties are not exempt persons; and
- The Home Secretary has reasonable grounds for suspecting that the proposed marriage or civil partnership is a sham.
3. What Are Sham Marriages?
The Home Secretary has set out statutory guidance, which includes a list of risk factors which may (though not automatically) lead to a finding that there are reasonable grounds for suspecting that the proposed marriage or civil partnership is a sham. These include where either party to the proposed marriage or civil partnership:
- is an immigration overstayer or absconder or otherwise in breach of the conditions of their leave;
- entered the UK illegally, or has been removed from the UK and should not be here;
- has been convicted of a criminal offence or there is other evidence of links to criminality;
- is recorded as deceased;
- is currently or has previously been the subject of a section 24/24A [of the Immigration Act 1999] report;
- has previously obtained leave, or sought to do so, on the basis of deception or of false or forged document;
- has an outstanding immigration application based on their relationship with another spouse/partner, or has previously sponsored, or been sponsored by, another spouse/partner to come to or remain in the UK;
- has a factor(s) in their immigration history which, based on a current analysis of immigration intelligence, casework and enforcement operations, otherwise gives rise to a reasonable ground to suspect that the proposed marriage or civil partnership may be a sham.
The guidance emphasises that cases are reviewed by trained decision-makers who should take into account all the information available to them, and that the risk factors above are to inform, but not determine, the assessment of whether there are reasonable grounds. Even where both conditions are met (and reasonable grounds have thus been identified), the Home Secretary is not obliged to launch an investigation, and the guidance makes clear that decisions may be informed by “matters of operational prioritisation and workflow management within the resources available at the time the decision is made.”
4. The Marriage Investigation Process: What to Expect
Once the decision to carry out a marriage investigation is made, the Home Secretary is required to give notice of that decision to the parties (as well as the registration authorities): section 48(7)-(9) of the Immigration Act 2014. Statutory instruments (for England and Wales and for Scotland and Northern Ireland) set out how such notice is to be given, and under which circumstances notice is presumed to have been received.
As part of the investigation, the Home Office may require a couple to:
- Provide information or evidence, including about their relationship, living arrangements, and future plans.
- Contact the Home Office via specified means within a timeframe set out in the notice to arrange an interview.
- Attend an interview, whether in-person (this can be at home or at Home Office premises, or via telephone call or video conference).
- Providence documents or photographs.
Such requirements can be imposed either in the original notice that an investigation is being undertaken under section 48 or in a subsequent notification, made by the Home Secretary verbally or in writing (s 50(3) Immigration Act 2014).
It is also important to note that parties subject to a marriage investigation by the Home Office are required to notify the Home Office of any changes to their usual address. Or, where the proposed marriage or civil partnership is to be contracted in England and Wales, their contact address, if one was provided, or to provide a UK contact address if either party’s usual address changes to one outside the UK while the marriage investigation is ongoing. The section 48 notice should set these obligations out in full.
5. Obligations During an Investigation: Compliance Is Key
It is for those subject to a marriage investigation to ensure that they comply with the requirements imposed on them. The Home Secretary may inform a party that they are in non-compliance with a requirement and require them to make contact with the Home Office to address the issue, but there is no requirement to do so, and the Home Secretary is entitled to make a ‘compliance decision’ whether or not such a notification has been issued.
If no investigation is launched, the marriage or civil partnership can take place after the regular 28 day notice period, subject to all other formalities and legal requirements being complied with. However, it is important to note that, as the Home Office guidance sets out:
“A decision by the Secretary of State not to investigate a proposed marriage or civil partnership does not constitute a determination as to the genuineness of the relationship on which it is based. If the marriage or civil partnership takes place, any decision taken on an application under the Immigration Rules, to stay in the UK which is made on the basis of the marriage or civil partnership will continue to involve an assessment by the Home Office of the genuineness of the couple’s relationship.”
6. The Compliance Decision and Its Implications
Within the extended 70-day notice period, the Home Secretary is required to decide whether the parties subject to an investigation have complied with it. If the Home Secretary decides that the parties have complied with the investigation, then the marriage or civil partnership can take place at the end of the notice period, provided there are no other legal reasons preventing it.
A party may be found to have not complied with the marriage investigation if they have failed to comply with a requirement imposed during that investigation without reasonable excuse. This includes refusing to answer questions during an interview, or not complying with the requirements to notify the Home Office of changes in the parties’ usual/contact address(es).
The guidance explains that a reasonable excuse may include the following:
- there are compelling, compassionate reasons for failing to comply with the requirement;
- there are reasons beyond the control of the relevant parties which prevented them from complying with the requirement;
- there has been administrative failure by the Home Office.
Importantly, where the parties decide not to go ahead with the planned marriage or civil partnership during the investigation, this is deemed to amount to non-compliance with the investigation.
At the same time, the guidance emphasises that the purpose of a marriage investigation is to determine whether a relationship is genuine. Thus, if it is possible for the decision-maker to confirm the genuineness of the relationship despite non-compliance with a request or requirement, the decision-maker must consider whether there was a reasonable excuse, as outlined above. Where the requirement in question relates to the provision of documents, they must also ask themselves whether the documents in question “would make a fundamental difference to the outcome of the genuineness assessment.” If that is not the case, it is likely to be unreasonable to find that the parties have not complied with the investigation.
The Home Secretary is required to give reasons where she finds that either or both parties have failed to comply with the investigation.
7. Consequences of Non-Compliance
If the parties are found to have failed to comply with the marriage investigation, they will not be able to proceed with their proposed marriage or civil partnership on the basis of the notice they have given (though this does not prevent them from giving notice again in the future).
It is important to note that the determination of whether a proposed marriage or civil partnership is a sham is a separate matter. A finding that someone has been involved in, or attempted to enter, a sham marriage or civil partnership can have a number of consequences, including the refusal of an immigration application, cancellation of permission, and enforcement action. Additionally, those involved in sham marriage may incur criminal liability, depending on the circumstances. These matters are beyond the scope of this article.
8. Key Takeaways on Home Office Marriage Investigations
This article summarised the basis for, and conduct of, marriage and civil partnership investigations by the Home Office under the scheme introduced by the 2014 Act. Once notice of a decision has been given to a couple, their obligation to comply with any requirements which may be imposed in the investigation is of paramount importance. Should enforcement action be taken against either or both parties after conclusion of the investigation, expert legal advice will be crucial in mitigating or avoiding negative outcomes.
Finally, it should be noted that not all investigations into the genuineness of a relationship take place within the context of the scheme created by the 2014 Act. The genuineness of a (proposed) marriage or civil partnership may be investigated following an immigration application having been made, as a result of intelligence available to the Home Office, or as part of a criminal investigation into offences related to sham marriages. While the parameters and procedure of investigations under the 2014 Act are regulated by the Act as well as relevant statutory instruments and the statutory guidance, investigations outside of the scheme may be conducted differently. For instance, ‘non-scheme’ investigations may include measures such as unannounced visits at a couple’s residential address.
9. Contact Our Immigration Barristers
For expert advice and assistance in relation to making a UK immigration application, contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.
