Overstayers and Marriage in the UK

Published: 09th May 2011
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Currently any migrant who is in the United Kingdom who is subject to immigration control and does not have indefinite leave to enter or remain in the UK must have a Certificate of Approval in order to be able to give notice to a registrar of their intention to marry or to enter into a civil partnership (unless they entered the UK with a visa for one of these purposes and the visa is still valid).





This requirement does not apply where the parties are marrying in the Anglican Church. The Certificate of Approval for marriage scheme will however come to an end on 9 May 2011. This therefore means that there will be no legal requirement to obtain a certificate of approval after that date. It is important however to note that the requirement to give notice in a designated register office is not affected by the abolition of the certificate of approval scheme. Further, entering into a "sham" marriage does not entitle migrants to any right to remain in the UK. The UK Border Agency have stated that they will continue to investigate suspected abuse and, where possible, disrupt marriages before they take place.





Therefore after 9 May 2011, those without leave to remain and are in genuine relationships may marry without seeking prior approval from UKBA.





However new guidance aimed at preventing "sham" marriages in the Church of England has been sent to clergy and legal officers by the House of Bishops. The guidance can be read at:





http://www.churchofengland.org/about-us/structure/churchlawlegis/guidance:





In summary the Guidance provides that in the case of any intended marriage where a party is a non-EEA national, the clergy should not offer to publish banns; instead the couple should be directed to apply for a common licence. Before a common licence can be issued for the marriage of a non-EEA national, the person responsible for granting the licence will require a letter from the minister who it is intended should conduct the marriage stating that he or she has met both parties (preferably on a number of occasions and at least once in their own home4) and, having discussed the marriage with them, is satisfied that the intended marriage is genuine and that he or she is content to conduct the marriage. If a member of the clergy is not satisfied that the marriage is genuine he or she must make that clear to the person responsible for granting the licence. Should a couple resist applying for a common licence and say that they insist on their banns being published the clergy should among other actions report the matter without delay to the diocesan registry. The Guidance is clear that any member of the clergy who thinks that he or she has been subjected to threats or any other improper pressure in connection with an intended marriage should immediately report the matter to the police, the archdeacon and the diocesan registry.





The Guidance further provides that when an application is made, the registry should open a file for the application and all material relating to the application should be retained in the relevant file. The Guidance proceeds to state that diocesan registry should require those applying to complete an application form (which will be separate from the affidavit that needs to be sworn before a licence may be issued). The purpose of the application form should be to elicit material information from applicants before an application is considered and to ensure that the registry itself processes applications in an efficient and effective manner. The application form should clearly state that any information and/or documents provided in connection with the application may be passed to the UK Border Agency or other Government agency or department for verification. As part of the application process, both of the parties to the intended marriage should be required to attend for interview at the registry or other place directed by the chancellor or registrar (even though only one of the parties need swear the affidavit). This rule should be departed from only where the person responsible for deciding whether to grant the licence is satisfied that there is a good and sufficient reason why one of the parties cannot attend.





As per the Guidance, those who have authority to issue a common licence have a discretion not to do so in certain circumstances. An application should not be considered for the grant of a common licence unless and until the person responsible for granting the licence has received a letter from the minister who it is intended should conduct the marriage stating that he or she has met both parties (preferably on a number of occasions and at least once in their own home5) and, having discussed the marriage with them, is satisfied that the intended marriage is genuine and that he or she is content to conduct the marriage. If the minister states that he or she is not satisfied that the intended marriage is genuine a licence should not be issued. The Guidance states that normal practice should be for applications involving non-EEA nationals to be decided by the chancellor or by the registrar in his or her capacity as a surrogate (if so appointed). Where the chancellor him- or herself does not decide an application and a decision is made to refuse to grant a common licence, an appeal lies from that decision to the chancellor as vicar general.





Further guidance recommends that members of the clergy keep records of identity or nationality when non-British national approach them seeking marriage. Factors which may give rise to a suspicion of a "sham" marriage include either party giving the impression of knowing very little about the other; the couple being unable or struggling to converse in a common language or where an interpreter is present; the couple wishing to marry as soon as possible; the couple leaving separately following the ceremony and where the couple have very few or no guests.





In practical terms, where the marriage does take place, a person must also make an application to UKBA based on the marriage so that consideration can be given to whether they should be granted leave to remain. Even after a marriage has taken place, UKBA can still take action as a marriage does not give a right to live and work in the United Kingdom.





Where the requirements of the Immigration Rules are not met for example because the correct entry clearance is not held and there are genuine reasons which would make return to the country of origin inappropriate, an application can be submitted to UKBA and representations made in relation to the established family life relying on Article 8 of the ECHR. The right to respect for family life protects established family life and relationships from unjustified interference. A person may assert that to refuse him leave to remain and to remove him from the UK would constitute a disproportionate interference with his right to respect for family life.





For some years, UKBA’s policy had been that if there was a procedural requirement requiring a person to leave the UK and make an application for entry clearance from their own country on the basis of their marriage then an applicant would be expected to do so. UKBA’s position was that in these circumstances interference with the family life would be temporary and therefore likely to be proportionate. However, UKBA’s policy position changed following the House of Lords judgment in Chikwamba v Secretary of State for the Home Department [2008] UKHL 40. The Lords stated inter alia that it was only comparatively rarely that it would be lawful to require someone with family here to return home and apply for entry clearance, particularly where children are involved. It is important to be aware that as all cases are considered individually and on their own merits, UKBA may and still do seek to refuse some applications on the basis that it may be proportionate for an applicant to return to his own country to make an application for entry clearance on the basis of the marriage.





Applications of this type normally attract a Home Office processing fee. Current UKBA Guidance on Article 8 claims provides:





"Where a person makes an application for leave to remain on the grounds of Article 8, that application is chargeable under the Immigration and Nationality (Fees) Regulations 2009 (as well as under previous Regulations in force since charging commenced on 1 August 2003).





However, a fee exemption applies where the application for leave to remain is made on the basis that the applicant is:


(a) a person making a claim for asylum which has not been determined or has been granted; or


(b) a person who has been granted Humanitarian Protection under the Immigration Rules; or


(c) a person who has been granted limited leave to enter or remain outside the provisions of the Immigration Rules (including Discretionary Leave) on the rejection of their claim for asylum; or


(d) a dependant of a person referred to in (a), (b) or (c) above.





Since 21 May 2007, any fee payable has had to accompany the application in order for the application to be validly made. There is no power in law to waive the application fee where no exemption applies, and applications have to be made on a form FLR(O) or SET(O) or they will not be valid".





Therefore unless an exemption applies, a fee is payable when submitting the relevant prescribed application form. In current circumstances application FLR(O) needs to be submitted to UKBA with the fee and supporting evidence.





It is essential that relevant supporting evidence in addition to the marriage certificate is submitted with the application in order to show that a family life exists and the marriage is genuine and subsisting. For example where there are children to the relationship, original full birth certificates need to be submitted. Where it is asserted that the parties have lived together for a number of years, tenancy agreements/mortgage documents mentioning names of both parties need to be furnished covering the relevant years. Where bank statements or other official bills are in joint names these need to be provided. Proof of any engagements or customary/religious marriages taking place prior to the registry marriage should be provided including relevant photographs of such ceremonies. Issues in relation to evidence of the relationship may arise where for cultural or religious reasons the parties have not lived together despite being in a lengthy and genuine relationship. In such circumstances, letters(with accompanying stamped envelopes), emails or itemised phone bills may be submitted in order to show contact over the relevant periods. It may also be worth considering obtaining witness statements from friends or relatives attesting to the nature and length of the relationship.





Where an application on the basis of marriage does not meet the requirements of the Immigration Rules but there are genuine reasons that would make removal inappropriate, Discretionary Leave is normally granted by UKBA. The initial grant of Discretionary Leave made to individuals who qualify on the basis of a marriage-based Article 8 claim is usually three years. Where the person continues to qualify for Discretionary Leave at the end of the initial three-year period they are normally granted a further three years. On completion of six years Discretionary Leave they maybe be eligible to apply for indefinite leave to remain.





UKBA’s concern has been to reduce the amount of "sham" marriages taking place. It remains to be seen after 9 May 2011 and following submission of applications for leave to remain after marriages have taken place, whether and to what extent UKBA will introduce further "safeguards" during the application process itself.













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