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Certificates of Approval abolished

Certificates of Approval abolished

Finally one piece of good news to share: the Certificate of Approval (COA) scheme has been abolished and will no 

longer be in place from 9th May 2011.  This was announced on the UKBA website on 7th April 2011 and is very welcome indeed.  Of course, the announcement is slightly dampened by the fact that it took nearly 3 years for this to happen following the House of Lords judgment in Baiai (30th July 2008), which ended MORE THAN 5 YEARS of litigation with the Secretary of State losing all the way (see here for previous relevant posts).

The COA scheme required persons, who were subject to immigration control, did not hold ILR and who wished to marry (other than in the Anglican Church) or register a civil partnership in the UK, to apply to UKBA for prior approval and pay some £135 for the privilege.  When the scheme was introduced – supposedly to prevent “sham marriages” – only those who had more than 3 months remaining of their leave to remain/enter would qualify for this “approval”.  The House of Lords in Baiai found that the scheme was an unlawful interference with the fundamental right to marry as it did not provide for or envisage any investigation at all into whether the proposed marriage was actually genuine or not (apparently too expensive and administratively burdensome) and thus imposed a blanket prohibition on the exercise of the right to marry by all caught under the scheme.

UKBA’s announcement did state that it was seeking to remedy the House of Lords’ judgment but it also said:

“Additionally, changes made following rulings from the courts have weakened the scheme, and it is no longer an effective method of preventing sham marriage.”

Blaming the courts for “weakening the scheme” and making it ineffective?  Uhm maybe it was unlawful and ineffective in the first place ?!  So I continue to pine for the day when UKBA can lose gracefully but with the litigation in Quila going to the House of Lords concerning another blanket ban (re marriage visa age raised in 2008 to 21 years old – see here for previous posts), that might be too much to ask…

The abolishing of the COA scheme was also hotly followed by the announcement on 12th April that UKBA had sanctioned new guidance issued to the Church of England clergy.  This guidance reminds us that:

“Recent experience has demonstrated that there are those who seek to abuse both the system of ecclesiastical marriage preliminaries and the office of Holy Matrimony by contracting marriages solely for the purpose of obtaining an immigration advantage.”

The guidance stipulates that if a person who is a non-EEA national (it does not even go on to distinguish between indefinite or temporary forms of leave) and who wishes to marry, the clergy should not offer to publish banns and the couple should instead be directed to apply for a common licence.  I must confess that I am not sure what publishing banns entails but essentially, the bride and groom-to-be when applying for a common licence will need to swear affidavits and provide in support of their application a letter from their minister confirming that their minister has met them (preferably on a number of occasions and at least once in their own home) and, having discussed the marriage with them, is satisfied that their proposed marriage is genuine and that he or she  is content to conduct the marriage.  For further details see here.

Rather ironic that the Church of England was exempt from the COA scheme in the first place and is now benefiting from the UKBA’s input into its own sham marriage guidance.  I wonder if more guidance will be issued to registrars sometime soon or dare I predict a replacement COA scheme…

Sarah Pinder
Sarah is a specialist immigration barrister at Mansfield Chambers in London. She also practices in family law and has a particular interest in cross-over issues within the two areas of law. Prior to joining the Bar, Sarah worked for 6 years in the not-for-profit sector as a specialist immigration caseworker.

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