UK Policy Consulation & Briefing

Marriage Registrar Campaign

JCWI briefing to Parliament on the rules before they were passed in 2004

Person subject to immigration control: procedure for marriage
Amendment to Asylum and Immigration (Treatment of Claimants, etc) Bill
Recommittal in House of Lords on 15 June 2004

The amendment

On 9th June the government tabled an amendment to the AI(TOC) Bill which will be recommitted to a Committee of the whole House of Lords on 15 June 2004. The amendment proposes the insertion of three new clauses (for England and Wales, Scotland, and N Ireland respectively) after the current clause 14.

Special marriage registrars for anyone not settled in the UK

Subsection (2) of each clause proposes that a marriage notice can only be given to designated registrars across the UK if one of the parties to the marriage is “subject to immigration control”. Someone is defined in the amendment as being subject to immigration control if he is a non EEA national who requires leave to enter the UK. In practical terms, the clause applies to any non EEA national in the UK who does not have permanent stay.

Home Secretary’s permission to marry

The registrar will only accept notice of the marriage if the person subject to immigration control has entry clearance as a fiancé(e); or has “written permission of the Secretary of State to marry”; or falls within an excepted class of people (not specified, but to be defined by regulations).

Exactly who the Home Secretary will give permission to marry is not defined in the amendment, but will instead be specified in regulations which will not be subject to parliamentary debate (akin to the current immigration rules).

Consultation and parliamentary scrutiny

The Bill has already proceeded through the House of Commons and is currently being debated in the House of Lords. The amendment will not thus be afforded proper parliamentary scrutiny. The government has not sought to consult with bodies representing those affected; and the Lords have only had limited opportunity for consultation (less than one week). JCWI fears that yet again, where immigration legislation is concerned, the government is seeking to avoid proper debate on laws that affect the basic civic rights of minority groups[1].

Under current law

If a marriage registrar has reasonable grounds for suspecting, upon receiving notice of a marriage, that it will be a sham marriage, he has to report his suspicion to the Secretary of State. [2]

A “sham marriage” is defined as one entered into between a foreign (non EEA) national and another person (whether or not British or an EEA national); and entered into for the purpose of avoiding the effect of one or more provisions of United Kingdom immigration law or the immigration rules.

When this provision was introduced into the 1999 Immigration and Asylum Bill, JCWI contended that the new power was both unnecessary and intrusive. There was little evidence to suggest that sham marriages were widespread. Of the 400 or so cases reported to the Home Office by registrars under older voluntary arrangements, few led to refusal under the immigration rules, which explicitly prevent an extension of stay being granted if the there is no intention amongst the parties to a marriage to live together permanently.

What is intended?

The Home Secretary announced on 22 April 2004,

"We are working closely with registrars to prevent sham marriages and are consulting on plans to designate specialist register offices, with dedicated support from the Immigration Service, to authorise marriages involving foreign nationals. Both parties involved would need to attend one of the specialist register offices in person to obtain authorisation.”

The most recent announcement on 8 June 2004, just prior to the current amendment, stated that the amendment will,

“require non-EEA foreign nationals to demonstrate they have entered the UK lawfully (and have permission to be here) before giving notice of an intended marriage at a designated registry office.”

The actual amendment however goes much further in specifying that those affected will have to additionally obtain permission from the Home Secretary. It is not clear in what circumstances the Home Secretary will issue permission to marry.

What are the implications?

What is clear, however, is that the proposed new measures are far more sweeping than current powers, in that, on any occasion where one party to a marriage is a foreign national, the couple will effectively be singled out for special scrutiny. This time, there will be a specially trained registrar, who will be under a duty to actively question the couple, and in close liaison with the immigration service and Home Office, ensure that the affected person has all the correct documentation in place.

Of even greater concern is the prohibition on all registrars throughout the UK, except for those designated, to refuse to accept notice from a couple where one party is subject to immigration control. This will in practice mean, that all registrars will have to undertake immigration checks on any couple where they suspect one party as falling within this definition.

JCWI has always made it clear that marriage registrars are not immigration officers and should not be used as agents of immigration control.

What justifies this fundamental breach of civic rights?

The power to refuse a marriage from going ahead may amount to a breach of Article 12 of the European Convention on Human Rights (the right to marry and found a family). Preventing an EEA national from marrying a national of another country may also amount to unlawful discrimination contrary to European Treaties.

Although, the right of spouses to live together in the UK has historically been subject to immigration control, never has anyone’s right to actually get married been questioned in this manner, and certainly has never been subject to immigration legislation. This new development is a fundamental one and can only be justified, if at all, in the light of irrevocable evidence that marriage procedures have been subject to widespread and systematic abuse and that this practice is prevalent amongst non EEA nationals in the UK. JCWI is not aware of such evidence and insists that it is produced.

An attack on black and ethnic minority communities

The Home Secretary has already called for a debate on and questioned the practice among many young Black and Asian British citizens to marry people who are not settled in the UK. Without listening to the concerns voiced by these communities, he has already put into place in 2003 a number of measures restricting foreign nationals married to British citizens, from seeking leave to stay in the UK with their spouses, and extending the probationary period of their marriage before they can obtain settlement.

The latest raft of proposed measures simply represent a further attack on the rights of black and ethnic minority individuals to marry those of their own choosing. The civil union of a couple in matrimony is a cause for celebration amongst all communities, and the overarching threat to this celebration posed by the proposed new amendments is unacceptable.

An attack on minority faiths

At present, a civil marriage is often conjoined with the religious ceremony. Many religious officials who perform religious ceremonies are also authorised to register civil marriages. It is not clear from the proposed amendment whether or not those religious officials who are currently permitted to perform both the religious and civil ceremonies will retain their ability to undertake civil ceremonies where one party is subject to immigration control. Given that many of those affected will belong to minority religions, JCWI will be seeking an assurance that the amendment will not prevent the religious and civil ceremonies from taking place concurrently.

Summary concerns:

• The removal of the right to marry without the Home Secretary’s permission is fundamentally retrograde and unjustified; and may be a breach of the ECHR.
• t is not clear in what circumstances permission to marry will be issued by the Home Secretary.
• JCWI remains opposed to the principle of making marriage registrars into agents of immigration control.
• The proposals will result in discrimination against couples where one or both partners is from a black or minority ethnic group
• The proposals also represent an attack on members of minority faiths who may not be able to celebrate the civil and religious ceremonies together
• A burden will be placed on marriage registrars which they will be unable to fulfil given the highly technical nature of immigration law
• And the proposals could add to administrative delays given the potentially high numbers of people who could be directed to apply to a designated marriage registrar in the UK’s cities.
  

The House of Lords is urged to consider the implications and concerns raised in this and other briefing papers seriously.