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

Baroness Smith of Basildon Excerpts

Tuesday 24th February 2015 Grand Committee

[Baroness Williams of Trafford (Con)]

My Lords, I shall speak also to the Referral and Investigation of Proposed Marriages and Civil Partnerships (Northern Ireland and Miscellaneous Provisions) Order 2015 and the Proposed Marriages and Civil Partnerships (Conduct of Investigations, etc.) Regulations 2015.

Part 4 of the Immigration Act 2014 constitutes the biggest reform of marriage preliminaries in a generation. It provides for a new referral and investigation scheme in England and Wales, aimed at tackling sham marriages and civil partnerships entered into for the purpose of circumventing the UK’s immigration controls. We are committed to dealing with those who seek to use marriage or civil partnership as a means of cheating their way into staying in the UK. The referral and investigation scheme will give us a much stronger platform for effective, systematic action to disrupt and deter sham marriages and civil partnerships, and prevent them gaining an immigration advantage.

The draft orders extend the referral and investigation scheme to proposed marriages and civil partnerships in Scotland and Northern Ireland. The operation of the scheme on a UK-wide basis will ensure that there is a robust response in place to the problem of sham marriage and avoids any risk of displacement of the problem from one part of the UK to another. We are grateful for the support of colleagues in the devolved Administrations for these measures.

The conduct of investigations regulations make provision for how we will conduct an investigation into whether a proposed marriage or civil partnership referred under the scheme is a sham. They set out the requirements with which the parties must comply as part of an investigation and the basis for the decision as to whether they have complied. If the parties do not comply with an investigation under the scheme, they will be unable to marry or enter into a civil partnership on the basis of that notice. The scheme will be implemented across the UK on 2 March. From this date, all marriages following civil preliminaries and civil partnerships in England and Wales will be subject to a minimum notice period of 28 days. This will also be the case in Scotland and Northern Ireland, under changes to devolved marriage and civil partnership laws.

Any couple including a non-EEA national wishing to marry in the Anglican Church in England and Wales will be required to complete civil preliminaries and give notice at a register office before their marriage. This will ensure that all couples within the scope of the scheme are correctly identified. Also from 2 March, registration officials will be required to refer to the Home Office all couples involving a non-EEA national who could gain an immigration advantage from the proposed marriage or civil partnership—for example, because they do not have evidence that they have settled status in the UK. Where a couple is referred to the Home Office under the scheme, we will be able to extend the notice period from 28 to 70 days where we suspect a sham and decide to investigate the genuine nature of the relationship.

By extending the notice period and channelling to us all proposed marriages and civil partnerships that could bring an immigration benefit, the new system will give us much more time and information to identify and act against shams before they happen. Where they go ahead, we will have the evidence that we need on file to be able to refuse any subsequent immigration application. The new scheme will provide the platform needed for us to tackle sham marriages and civil partnerships more effectively, and crack down on the abuse of our marriage and civil partnership laws, and of our immigration system. I beg to move.

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the noble Baroness for her explanation of and information about these orders, and I think she knows that they have our full support. We expressed that support during the passage of the Immigration Bill, which was a long Bill that produced considerable debate—but, interestingly, this part did not provoke particularly long debates. There was widespread support in your Lordships’ House for the view that something had to be done to tackle those who seek to gain an immigration status in the UK on the basis of a marriage ceremony that is not a genuine marriage. I appreciate that it is seriously difficult to investigate and understand how often this happens, and there is now a reliance on those who conduct marriages to seek further information and to make a judgment, based on that information, about whether the marriage is fraudulent for the purposes of immigration or is a genuine relationship. We supported the measures then and we support them now.

Not only are these sham ceremonies wrong in principle and unfair to British citizens, they are also unfair on those in mixed nationality relationships that are genuine and do lead to marriage. We can have confidence in those marriages if we deal with sham marriages that are not genuine. I have a few questions, some of which are simply to refresh my memory on a couple of things in the Immigration Bill that relate to this issue. Earlier I was thinking about whether it is a duty on those conducting a marriage ceremony to refer any marriage they suspect of being sham or is it something that they may do? I know that there is information that they have to check, but that can be provided fraudulently anyway, which indeed has been part of the problem. Is it an actual duty on those conducting the marriage?

One reason I ask this relates to the news at the moment about the three young London girls who flew to Turkey and are now feared to have gone to Syria. A problem there is that the Government have in some ways outsourced the checking procedures from those who would have been responsible, such as the then UK Border Agency. It is now the responsibility of the airline to check whether they are able to leave the country. Now we have a situation where we expect those who conduct marriage ceremonies to check whether a couple are genuine. I am curious as to whether it would be an offence if the person did not conduct adequate checks, and what training, support, advice and guidance is being given to those who conduct marriages to help them make the correct assessment? That is key to making sure that we get this right. It is all very well to pass a law saying that something should happen, but unless we know that it will happen appropriately, we should still have some concerns.

I have to say that I did not find the Explanatory Memorandum very helpful at all. It refers to consultations, but the only ones it mentions are those which were conducted on the measures that are in the Bill itself, not those set out in this secondary legislation. One thing that always concerns me about secondary legislation is that often it is about the implementation of policies that have already been agreed. For a policy to be effective, its implementation often matters more than what was decided as the policy. I would have liked to have seen some consultation; some soundings and advice taken from those who are going to be at the sharp end of implementing the legislation to see if they are content with the tools they have in place. I went back to the original consultation, but it did not help much in that regard. If the Minister could tell me what conversations and discussions have been held with those who will be responsible for implementing the legislation, it would be quite helpful.

At the time the legislation was being passed, it was estimated that there were something between 4,000 and 10,000 applications to remain in the UK being made each year by those who we believed were party to a sham marriage. That is a huge range, and we said at the time that there has to be more intelligence gathering and an intelligence-based approach to this problem. Has anything more been done on that since then? If this is to be a referral-only mechanism to investigate sham marriages, I am concerned that we may be missing some of the sham applications that will be made as a result unless the appropriate training and guidance is given to those who are to conduct such marriages.

These are not concerns about the policy or the principle, but about how the law is going to work in practice. Are the tools and the funding in place? Those are the issues. In principle, however, we support these orders, just as we supported the legislation. However, if the noble Baroness is able to say something about the points I have raised, I would be most grateful to her.

[Baroness Williams of Trafford]

I thank the noble Baroness, as always, for her constructive comments. She asked three main questions, the first of which was on a duty to report. There is an existing duty to report on registration officials who suspect that a sham marriage or civil partnership has taken place or is about to take place. They currently have a duty to report that to the Home Office, and there will now also be a duty to refer all couples who are in scope of the scheme for the Home Office to make a decision about whether to investigate or not. That is where the extended period to investigate comes in.

The noble Baroness also asked about guidance and training. Statutory guidance for Home Office staff on the operation of the new scheme is being developed, alongside the requisite operational procedures for dealing with proposed marriages and civil partnerships which have been referred to the Home Office under the scheme. The guidance is expected to cover decisions about whether to investigate whether a proposed marriage or civil partnership is a sham, how the investigation may be conducted and whether a couple have complied with an investigation. The parameters for the guidance are set out in secondary legislation before the Committee, in the draft conduct of investigations regulations, and in the explanatory paper on the new scheme that the Government published in November 2013 to support parliamentary consideration of the relevant provisions in the Immigration Bill.

The noble Baroness talked about training, and help and advice for registrars. I understand that significant training has been provided to local registration staff to help them identify forged documents. That is not a perfect solution but it is the best that we have at our disposal at this point in time. Intelligence has also been shared with registration staff so that they are aware of the profile of a likely sham and what sort of pointers would indicate one.

The noble Baroness talked about consultation. We have consulted publicly, and consulted the devolved Administrations and their registrars on the scheme.

[Baroness Smith of Basildon]

I am grateful for that, which was helpful, although I was asking about consultation on these regulations, not on the Bill. The Explanatory Memorandum says that,

“no public or other consultation was held … on the Regulations”.

Perhaps she is talking about the Bill, not the regulations.

[Baroness Williams of Trafford]

Perhaps I need to come back to the noble Baroness on that. I had it in my mind that there had been both a public consultation and extensive discussions with the devolved Administrations. Rather than give her duff information from the Dispatch Box, I will get back to her. We have also worked closely with the Anglican Church on the changes that might affect the church. I will write to the noble Baroness on the specific point, but unless she has any other questions, I commend the regulations to the Committee.