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The legal restrictions on immigrants getting married
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The legal restrictions on immigrants getting married

A migrant’s marital status can make a huge difference to their right to be in the UK. The spouse of an EU national exercising treaty rights in the UK will automatically have a right to reside in the UK. The spouses of British or settled citizens do not acquire such rights automatically, but they are recognised as “partners” under the Immigration Rules, and can apply to remain in the UK on that basis.

In recent years the government has made it increasingly complicated for a migrant to get married in the UK. Home Office officials now demand to be made aware of a migrant’s intention to marry and can look into the genuineness of contracted or to-be-contracted marriages.

Immigrants must, therefore, be familiar with the practicalities of getting married or entering in a civil partnership in the UK and the alternatives to marriage or civil partnership for couples wishing to live together in the UK.

As a preliminary note: marriages and civil partnerships are no different for the purposes of immigration law. Throughout this post, wherever the word “marriage” is used, it is interchangeable with “civil partnership”, and vice versa.

Getting married in the UK

Who can get married?

Some categories of people simply cannot lawfully enter into marriage in the UK. They include:

  • Those under the age of 16
  • Those in a “prohibited degree of relationship” (i.e. too closely related)
  • Those who are already married

Those categories of people will need to:

  • wait until they become of age
  • marry someone else, or
  • ensure they are divorced

Anyone else has a right to marry, protected by article 12 of the European Convention on Human Rights.

Giving notice

A couple who can and want to get married must start by “giving notice” at a Register Office. Where a member of the couple is a non-EEA national, and subject to immigration control, they must give notice at a designated Register Office. These are equipped to deal with the paperwork for foreign nationals.

Notice can only be given after both members of the couple have lived in the UK for at least seven days.

The couple must attend the Register Office with:

  • Proof of address
  • Proof of their name, age and nationality. The easiest document to provide is a passport or refugee travel document, but for some British citizens (those born in the UK before 1 January 1983), a birth certificate could work. EEA nationals can provide their identity cards. A combination of documents may also work, for example a birth certificate showing name and age; and a certificate of naturalisation confirming nationality.
  • For those who have been married previously, a divorce certificate or their previous spouse’s death certificate.
  • When one of the members of the couple is a non-EEA national, a passport-size photograph.

The couple will also need to confirm when and where they intend to marry and the immigration status of the non-EEA national (providing evidence of the same, if available).

Giving notice costs £35 for British and settled citizens, European nationals, and those who have a valid marriage visitor visa or a fiancé(e) visa. It costs £47 for anyone else.

Top tip

Many think that a passport will be the only acceptable evidence of identity to give notice. Although this is indeed the easiest document to provide, any document or combination of documents which shows name, age and nationality should be accepted. The practices of different Register Offices vary, though, and couples would be advised to contact their chosen office in advance to enquire as to which document they would accept. If your client does not have a passport, it is worth asking if they have alternative evidence.

If there is no alternative evidence, and the client’s passport is with the Home Office already (for example because it was submitted to the Home Office in a previous application), it is possible to (1) ask for the passport back; or, if the Home Office is not willing to return the passport (2) ask the Home Office to liaise with the Register Office and provide a copy of the passport, which it will accept if it comes from the Home Office. Be warned that this second option may request a lot of patience and chasing letters!

Once a couple has given notice, it will be publicly displayed in the Register Office for 28 days. This means they must wait for 28 days before they are allowed to marry. This applies to any couple, regardless of the nationality and immigration status of its members.

However, since 2 March 2015, under the Immigration Act 2014 the Register Office must inform the Secretary of State if one or both of the members of the couple are not “exempt”. Those exempt are:

  • British citizens
  • EEA or Swiss nationals,
  • People with permanent residence/indefinite leave to remain
  • People exempt from immigration control
  • People with a valid marriage visitor or fiancé/proposed CP visa

Investigation

So, when at least one of the members of the couple is not “exempt”,  the Register Office will inform the Home Office that the couple have given notice of their intention to get married. This is so that the Home Office can investigate the genuineness of the marriage, which it can do if it has “reasonable grounds” to suspect that it is a sham. We will look in more detail at sham marriage investigations in a separate post. For now, it is enough to note that an investigation is possible and to canvass some alternatives to getting married in the UK for those whose immigration status might give the Home Office cause to investigate it.

Alternatives to marriage in the UK and other considerations

For some couples, marrying abroad might be easier than marrying in the UK, provided the marriage is recognised in the UK. A person who will become the spouse of an EEA national exercising treaty rights in the UK will then immediately have a right to enter the UK. (That is, unless there are public policy or public security reasons to refuse entry, which is a high test to meet.)

The spouse of a British or settled citizen may be able to make an application as a spouse from abroad, under Appendix FM of the Rules. However, some factors must be taken into consideration before taking the decision to leave and apply from abroad, including:

  • Are the other requirements of Appendix FM met, including the financial requirement? If not, then the person will not be able to re-enter the UK.
  • Does the applicant have a poor immigration history, and could they be caught by the suitability requirements of Appendix FM, and/or paragraph 320(11) of the Immigration Rules?

Leaving the UK and returning with a marriage visit visa or a fiancé(e) visa

Some applicants might not be able to marry abroad, for example because they are a same-sex couple and the non-British/EU national comes from a country which does not provide for same-sex marriages. Other couples might just want to marry in the UK for understandable sentimental reasons.

It is possible to enter the UK as a fiancé(e) or as a marriage visitor (the latter only if it is the intention to come to the UK to marry and then leave the UK).

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When considering an application for a fiancé(e) or marriage visitor visa, the Home Office will want to be satisfied that the couple is in a genuine relationship, so it is important to provide extensive evidence of the relationship. However, once the visa is granted, the Home Office should not investigate the genuineness of the relationship again.

Those who have marriage visitor visas or fiancé(e) visas will be able to give notice once they have lived in the UK for seven days. They will then be considered “exempt”, such that their notice period will be 28 days, and cannot be extended to 70 days (and they will not be investigated by the Home Office, which will have accepted that the couple is in a genuine relationship when granting the visa).

Long-term partners/durable partners

The Immigration Rules give the same rights as spouses to “unmarried couples”, defined as those who have cohabited in a relationship akin to marriage for two years or more. Therefore, if a couple has cohabited for two years, they will gain no advantage in getting married, and may decide to make an application as “unmarried partners”.

Under European law, “durable partners” can also apply to join their EEA partner, although this is not an automatic right like it is for spouses. Durable partners only acquire the right to join or remain with their EEA partner once the Secretary of State has accepted that they are durable partners by granting an EEA Family Permit or an EEA Residence Card. There is no definition of “durable partners” under the EEA Regulations and the Home Office tends to equate them to unmarried partners under the Immigration Rules, therefore requiring a two-year cohabitation. But it can grant a document to a couple who have lived together for less than two years, for example when they have children.

Conclusion

Getting married in the UK is not always straightforward. It can be a journey full of obstacles, especially for those who do not have leave and might come to the attention of the Home Office, or not have the required proof of identity (typically because their passport is with the Home Office). Sometimes, taking another route might be easier.

Nath Gbikpi

Nath is a solicitor and has worked with Wesley Gryk Solicitors since June 2014. Nath read Development Studies and Politics at the School of Oriental and African Studies (SOAS), before obtaining an MSc in Refugee and Forced Migration Studies at the University of Oxford and an LLB at the University of London.

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