PART 4Marriage and civil partnership

CHAPTER 1Referral and investigation of proposed marriages and civil partnerships

Investigation

48Decision whether to investigate

(1)

This section applies if—

(a)

a superintendent registrar refers a proposed marriage to the Secretary of State under section 28H of the Marriage Act 1949, or

(b)

a registration authority refers a proposed civil partnership to the Secretary of State under section 12A of the Civil Partnership Act 2004.

F1(1A)

This section also applies if—

(a)

a registrar refers a proposed marriage to the Secretary of State under Article 3E of the Marriage (Northern Ireland) Order 2003, or

(b)

a registrar refers a proposed civil partnership to the Secretary of State under section 139E of the Civil Partnership Act 2004.

F2(1B)

This section also applies if—

(a)

a district registrar refers a proposed marriage to the Secretary of State under section 3F of the Marriage (Scotland) Act 1977, or

(b)

a district registrar refers a proposed civil partnership to the Secretary of State under section 88F of the Civil Partnership Act 2004.

(2)

The Secretary of State must decide whether to investigate whether the proposed marriage or civil partnership is a sham.

(3)

The Secretary of State may not decide to conduct such an investigation unless conditions A and B are met.

(4)

Condition A is met if the Secretary of State is satisfied that—

(a)

only one of the parties to the proposed marriage or civil partnership is an exempt person, or

(b)

neither of the parties are exempt persons.

(5)

Condition B is met if the Secretary of State has reasonable grounds for suspecting that the proposed marriage or civil partnership is a sham.

(6)

In making the decision whether to investigate, regard must be had to any guidance published by the Secretary of State for this purpose.

(7)

In the case of a proposed marriage F3referred to the Secretary of State as mentioned in subsection (1)(a), the Secretary of State must give notice of the decision made under this section to—

(a)

both of the parties to the proposed marriage, F4...

(b)

the superintendent registrar who referred the proposed marriage to the Secretary of State F5, and

(c)

if different, the superintendent registrar responsible for issuing the marriage schedule under section 31 of the Marriage Act 1949 in relation to the proposed marriage.

(8)

In the case of a proposed civil partnership F6referred to the Secretary of State as mentioned in subsection (1)(b), the Secretary of State must give notice of the decision made under this section to—

(a)

both of the parties to the proposed civil partnership,

(b)

the registration authority who referred the proposed civil partnership to the Secretary of State, and

(c)

if different, the registration authority responsible for issuing the civil partnership schedule under section 14(1) of the Civil Partnership Act 2004 in relation to the proposed civil partnership.

F7(8A)

In the case of a proposed marriage referred to the Secretary of State as mentioned in subsection (1A)(a), the Secretary of State must give notice of the decision made under this section to—

(a)

both of the parties to the proposed marriage, and

(b)

the registrar who referred the proposed marriage to the Secretary of State.

(8B)

In the case of a proposed civil partnership referred to the Secretary of State as mentioned in subsection (1A)(b), the Secretary of State must give notice of the decision made under this section to—

(a)

both of the parties to the proposed civil partnership, and

(b)

the registrar who referred the proposed civil partnership to the Secretary of State.

F8(8C)

In the case of a proposed marriage referred to the Secretary of State as mentioned in subsection (1B)(a), the Secretary of State must give notice of the decision made under this section to—

(a)

both of the parties to the proposed marriage, and

(b)

the district registrar who referred the proposed marriage to the Secretary of State.

(8D)

In the case of a proposed civil partnership referred to the Secretary of State as mentioned in subsection (1B)(b), the Secretary of State must give the notice of the decision made under this section to—

(a)

both of the parties to the proposed civil partnership, and

(b)

the district registrar who referred the proposed civil partnership to the Secretary of State.

(9)

The Secretary of State must make the decision, and give the notice, required by this section within the relevant statutory period.

49Exempt persons

(1)

A person who is a party to a proposed marriage or civil partnership is an exempt person if the person—

(a)

is a relevant national;

(b)

has the appropriate immigration status; or

(c)

holds a relevant visa in respect of the proposed marriage or civil partnership.

(2)

A person has the appropriate immigration status if the person—

F9(a)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)

is exempt from immigration control; or

(c)

is settled in the United Kingdom (within the meaning of the Immigration Act 1971 — see section 33(2A) of that Act).

F10(2A)

“Retained enforceable EU right” means a right that—

(a)

was created or arose by or under the EU Treaties before the coming into force of this subsection, and

(b)

forms part of retained EU law by virtue of section 3 or 4 of the European Union (Withdrawal) Act 2018,

as that right is modified from time to time.

(3)

The question of whether a person is exempt from immigration control is to be determined in accordance with regulations made for this purpose by the Secretary of State.

(4)

A person holds a relevant visa if the person holds a visa or other authorisation that is of a kind specified for this purpose in regulations made by the Secretary of State.

(5)

The Secretary of State may not specify a visa or other authorisation under subsection (4) unless the Secretary of State considers that the purpose of issuing that kind of visa or authorisation is, or includes, enabling a person to enter or remain in the United Kingdom to marry or form a civil partnership.

50Conduct of investigation

(1)

An investigation must be conducted in accordance with any regulations made by the Secretary of State for this purpose.

(2)

In conducting an investigation, regard must also be had to any guidance published by the Secretary of State for this purpose.

(3)

A relevant party must comply with a requirement specified in regulations made under section 51(4) if—

(a)

the section 48 notice given to the relevant party states that he or she must do so, or

(b)

the Secretary of State subsequently notifies the relevant party (orally or in writing) that he or she must do so;

and the relevant party must comply with that requirement in the manner stated in the section 48 notice or in the Secretary of State's notification (if such a manner is stated there).

(4)

As part of an investigation, the Secretary of State must decide whether or not each of the relevant parties has complied with the investigation (the “compliance question”).

(5)

The compliance question must be decided in accordance with any regulations made by the Secretary of State for this purpose.

(6)

In deciding the compliance question, regard must also be had to any guidance published by the Secretary of State for this purpose.

(7)

Within the 70 day period, the Secretary of State must—

(a)

decide the compliance question; and

(b)

give notice of that decision to the persons to whom the Secretary of State gave the section 48 notice relating to the proposed marriage or civil partnership.

(8)

If the Secretary of State's decision is that one or both of the relevant parties have not complied with the investigation, the notice under subsection (7) must include a statement of the Secretary of State's reasons for reaching that decision.

(9)

Regulations made under this section may, in particular, make provision about—

(a)

the circumstances in which a relevant party is to be taken to have failed to comply with a relevant requirement;

(b)

the consequences of a relevant party's failure to comply with a relevant requirement.

(10)

The provision that may be made under subsection (9)(b) includes provision for the compliance question to be decided (in whole or in part) by reference to a relevant party's compliance or non-compliance with one or more relevant requirements.

(11)

In this section—

“70 day period” means the period of 70 days beginning with the day on which the relevant statutory period begins;

“investigation” means an investigation, conducted following a decision by the Secretary of State under section 48, whether a proposed marriage or civil partnership is a sham;

“relevant party” means a person who is a party to a proposed marriage or civil partnership that is the subject of an investigation;

“relevant requirement” F11in relation to a proposed marriage or civil partnership under the law of England and Wales, means any requirement imposed by law, including a requirement imposed by or in accordance with—

(a)

subsection (3);

(b)

section 27E, 28B or 28C of the Marriage Act 1949;

(c)

regulations under section 28D of that Act;

(d)

section 8A, or any of sections 9 to 9B, of the Civil Partnership Act 2004.

F12“relevant requirement” in relation to a proposed marriage or civil partnership under the law of Northern Ireland, means any requirement imposed by law, including a requirement imposed by or in accordance with—

(a)

subsection (3);

(b)

regulations under paragraph 4 of Schedule 5;

(c)

Article 3A or 3B of the Marriage (Northern Ireland) Order 2003;

(d)

Article 5 of the Marriage (Northern Ireland) Order 2003 so far as that requirement relates to nationality;

(e)

section 139A or 139B of the Civil Partnership Act 2004;

(f)

section 141 of the Civil Partnership Act 2004 so far as that requirement relates to nationality.

F13“relevant requirement” in relation to a proposed marriage or civil partnership under the law of Scotland, means any requirement imposed by law including a requirement imposed by or in accordance with—

(a)

subsection (3);

(b)

regulations under paragraph 4 of Schedule 5;

(c)

section 3(4A), 3A or 3B of the Marriage (Scotland) Act 1977;

(d)

section 88(8), 88A or 88B of the Civil Partnership Act 2004.

51Investigations: supplementary

(1)

A section 48 notice which states that the Secretary of State has decided to investigate whether a proposed marriage or civil partnership is a sham must include—

(a)

notice that the compliance question must be decided within the period of 70 days mentioned in section 50(7);

(b)

notice of the date on which that period will end;

(c)

notice that a relevant party may be required to comply with one or more requirements imposed by the Secretary of State subsequently in accordance with section 50(3); and

(d)

prescribed information about the investigation.

(2)

The section 48 notice may also include such other information as the Secretary of State considers appropriate.

(3)

For the purposes of subsection (1)(d) “prescribed information” means information prescribed by the Secretary of State by regulations; and the information that may be prescribed includes information about—

(a)

the conduct of the investigation;

(b)

requirements with which the relevant parties must comply in relation to the investigation;

(c)

the consequence of a failure to comply with those or any other requirements;

(d)

the possible outcomes of the investigation;

(e)

the consequences of those outcomes.

(4)

The Secretary of State may, by regulations, specify requirements relating to the conduct of investigations which may be imposed on a relevant party by the section 48 notice or by the Secretary of State subsequently in accordance with section 50(3).

(5)

Regulations made under subsection (4) may, in particular, specify any of the following requirements—

(a)

a requirement to make contact with a particular person or description of persons in a particular way (including by telephoning a particular number) within a particular time period;

(b)

a requirement to be present at a particular place at a particular time;

(c)

a requirement to be visited at home;

(d)

a requirement to be interviewed;

(e)

a requirement to provide information (whether orally or in writing);

(f)

a requirement to provide photographs;

(g)

a requirement to provide evidence.

(6)

The provisions of this Part, and any investigation or other steps taken under those provisions (including the decision of the compliance question), do not limit the powers of the Secretary of State in relation to marriages or civil partnerships that are, or are suspected to be, a sham (including any powers to investigate such marriages or civil partnerships).

(7)

In this section “investigation”, “relevant party” and “compliance question” have the same meanings as in section 50.