Immigration Bill (HC Bill 110)

(a) a person who under Part 4A of the Financial Services and Markets Act
2000 has permission to accept deposits;

(b) an EEA firm of the kind mentioned in paragraph 5(b) of Schedule 3 to
that Act that has permission under paragraph 15 of that Schedule (as a
5result of qualifying for authorisation under paragraph 12(1) of that
Schedule) to accept deposits.

(3) A reference in subsection (2) to a person or firm with permission to accept
deposits does not include a person or firm with permission to do so only for the
purposes of, or in the course of, an activity other than accepting deposits.

(4) 10“Bank” does not include—

(a) a building society;

(b) a person who is specified, or is within a class of persons specified, by an
order under section 38 of the Financial Services and Markets Act 2000
(exemption orders);

(c) 15a credit union within the meaning given by section 31(1) of the Credit
Unions Act 1979 or by Article 2(2) of the Credit Unions (Northern
Ireland) Order 1985;

(d) a friendly society within the meaning given by section 116 of the
Friendly Societies Act 1992.

(5) 20In sections 35 and 36, and in subsection (4), “building society” means a building
society incorporated (or deemed to be incorporated) under the Building
Societies Act 1986.

38 Power to amend

(1) The Treasury may by order amend any of sections 35 to 37 so as—

(a) 25to alter the categories of financial institution to which those sections
apply;

(b) to alter the categories of account to which the prohibition in section
35(1) applies;

(c) to include provision defining a category of account specified in that
30section.

(2) In subsection (1) “account” includes a financial product by means of which a
payment may be made.

Work

39 Appeals against penalty notices

35In section 17 of the Immigration, Asylum and Nationality Act 2006 (appeal), for
subsections (4) and (5) substitute—

“(4A) An appeal may be brought only if the employer has given a notice of
objection under section 16 and the Secretary of State—

(a) has determined the objection by issuing to the employer the
40penalty notice (as a result of increasing the penalty under
section 16(4)(c)),

(b) has determined the objection by—

(i) reducing the penalty under section 16(4)(b), or

(ii) taking no action under section 16(4)(d), or

(c) has not informed the employer of a decision before the end of
the period that applies for the purposes of section 16(5)(b).

(4B) An appeal must be brought within the period of 28 days beginning with
the relevant date.

(4C) 5Where the appeal is brought under subsection (4A)(a), the relevant date
is the date specified in the penalty notice issued in accordance with
section 16(5)(c) as the date on which it is given.

(4D) Where the appeal is brought under subsection (4A)(b), the relevant date
is the date specified in the notice informing the employer of the
10decision for the purposes of section 16(5)(b) as the date on which it is
given.

(4E) Where the appeal is brought under subsection (4A)(c), the relevant date
is the date on which the period that applies for the purposes of section
16(5)(b) ends.”

40 15Recovery of sums payable under penalty notices

In section 18 of the Immigration, Asylum and Nationality Act 2006
(enforcement), for subsections (1) and (2) substitute—

“(1) This section applies where a sum is payable to the Secretary of State as
a penalty under section 15.

(1A) 20In England and Wales the penalty is recoverable as if it were payable
under an order of the county court.

(1B) In Scotland, the penalty may be enforced in the same manner as an
extract registered decree arbitral bearing a warrant for execution issued
by the sheriff court of any sheriffdom in Scotland.

(1C) 25In Northern Ireland the penalty is recoverable as if it were payable
under an order of a county court in Northern Ireland.

(1D) Where action is taken under this section for the recovery of a sum
payable as a penalty under section 15, the penalty is—

(a) in relation to England and Wales, to be treated for the purposes
30of section 98 of the Courts Act 2003 (register of judgments and
orders etc) as if it were a judgment entered in the county court;

(b) in relation to Northern Ireland, to be treated for the purposes of
Article 116 of the Judgments Enforcement (Northern Ireland)
Order 1981 (S.I. 1981/226 (N.I. 6)S.I. 1981/226 (N.I. 6)) (register of judgments) as if it
35were a judgment in respect of which an application has been
accepted under Article 22 or 23(1) of that Order.”

Driving licences

41 Grant of driving licences: residence requirement

(1) In section 97 of the Road Traffic Act 1988 (grant of licences), in the opening
40words of subsection (1), after “who” insert “meets the relevant residence
requirement (see section 97A) and”.

(2) After that section insert—

“97A Residence requirement

(1) For the purposes of an application under section 97, a person meets the
relevant residence requirement if, on the date the application is made—

(a) 5in the case of an application that is made by virtue of section
89(1)(ea) (application by holder of Community licence), the
applicant is lawfully resident in the United Kingdom and is also
normally resident in the United Kingdom or has been attending
a course of study in the United Kingdom during the period of
10six months ending on that date;

(b) in the case of an application that is made by virtue of section
89(1)(f) (application by holder of exchangeable licence), the
applicant is normally and lawfully resident in Great Britain but
has not been so resident for more than the prescribed period;

(c) 15in the case of an application that is made by virtue of section
97(2) (application for provisional licence), the applicant is
lawfully resident in Great Britain and the Secretary of State is
satisfied that the applicant will remain so for not less than 185
days; and

(d) 20in any other case, the applicant is normally and lawfully
resident in Great Britain.

(2) For the purposes of subsection (1) a person is not lawfully resident in
Great Britain or the United Kingdom if the person requires leave to
enter or remain in the United Kingdom but does not have it.”

(3) 25In Article 13 of the Road Traffic (Northern Ireland) Order 1981 (S.I. 1981/154S.I. 1981/154
(N.I. 1)) (grant of licences), in the opening words of paragraph (1), after “who”
insert “meets the relevant residence requirement (see Article 13A) and”.

(4) After that Article insert—

“13A Residence requirement

(1) 30For the purposes of an application under Article 13, a person meets the
relevant residence requirement if, on the date the application is made—

(a) in the case of an application that is made by virtue of Article
5(1)(ea) (application by holder of Community licence), the
applicant is lawfully resident in the United Kingdom and is also
35normally resident in the United Kingdom or has been attending
a course of study in the United Kingdom during the period of
six months ending on that date;

(b) in the case of an application that is made by virtue of Article
5(1)(f) (application by holder of exchangeable licence), the
40applicant is normally and lawfully resident in Northern Ireland
but has not been so resident for more than the prescribed
period;

(c) in the case of an application that is made by virtue of Article
13(2) (application for provisional licence), the applicant is
45lawfully resident in Northern Ireland and the Department is
satisfied that the applicant will remain so for not less than 185
days; and

(d) in any other case, the applicant is normally and lawfully
resident in Northern Ireland.

(2) For the purposes of paragraph (1) a person is not lawfully resident in
Northern Ireland or the United Kingdom if the person requires leave to
enter or remain in the United Kingdom but does not have it.”

42 Revocation of driving licences on grounds of immigration status

(1) 5In section 99 of the Road Traffic Act 1988 (duration of licences)—

(a) after subsection (3) insert—

“(3ZA) Where it appears to the Secretary of State that a licence holder is
not lawfully resident in the United Kingdom, the Secretary of
State may serve notice in writing on that person revoking the
10licence and requiring the person to surrender the licence and its
counterpart forthwith to the Secretary of State, and it is the duty
of that person to comply with the requirement.

(3ZB) For the purposes of subsection (3ZA) a person is not lawfully
resident in the United Kingdom if the person requires leave to
15enter or remain in the United Kingdom but does not have it.”;

(b) in subsection (5), after “(3)” insert “, (3ZA)”;

(c) in subsection (7ZZA)—

(i) after “(3)” insert “, (3ZA)”;

(ii) after “subsections and” insert “, except in the case of a licence
20and counterpart surrendered in pursuance of subsection
(3ZA),”.

(2) In section 100 of that Act (appeals)—

(a) in subsection (1)(c), after “99(3)” insert “, (3ZA)”;

(b) at the end insert—

“(4) 25In any proceedings under this section about the revocation of a
licence in pursuance of section 99(3ZA) (revocation on grounds
of immigration status), the court or sheriff is not entitled to
entertain any question as to whether—

(a) the appellant should be, or should have been, granted
30leave to enter or remain in the United Kingdom, or

(b) the appellant has, after the date that the Secretary of
State served notice under section 99(3ZA), been granted
leave to enter or remain in the United Kingdom.”

(3) In Article 15 of the Road Traffic (Northern Ireland) Order 1981 (S.I. 1981/154S.I. 1981/154
35(N.I. 1)) (duration of licences)—

(a) after paragraph (5) insert—

“(5ZA) Where it appears to the Department that a licence holder is not
lawfully resident in the United Kingdom, the Department may
serve notice in writing on that person revoking the licence and
40requiring the person to surrender the licence and its counterpart
forthwith to the Department, and it is the duty of that person to
comply with the requirement.

(5ZB) For the purposes of paragraph (5ZA) a person is not lawfully
resident in the United Kingdom if the person requires leave to
45enter or remain in the United Kingdom but does not have it.”;

(b) in paragraph (7), after “(5)” insert “, (5ZA)”.

(4) In Article 16 of that Order (appeals)—

(a) in paragraph (1)(c), after “15(5)” insert “, (5ZA)”;

(b) at the end insert—

“(4) In any proceedings under this Article about the revocation of a
5licence in pursuance of Article 15(5ZA) (revocation on grounds
of immigration status), the court is not entitled to entertain any
question as to whether—

(a) the appellant should be, or should have been, granted
leave to enter or remain in the United Kingdom, or

(b) 10the appellant has, after the date that the Department
served notice under Article 15(5ZA), been granted leave
to enter or remain in the United Kingdom.”

Part 4 Marriage and civil partnership

CHAPTER 1 15Referral and investigation of proposed marriages and civil partnerships

Investigation

43 Decision whether to investigate

(1) This section applies if—

(a) a superintendent registrar refers a proposed marriage to the Secretary
20of 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.

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

(3) 25The 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) 30neither 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) 35In the case of a proposed marriage, 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 superintendent registrar who referred the proposed marriage to the
Secretary of State.

(8) In the case of a proposed civil partnership, 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
5to 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.

(9) The Secretary of State must make the decision, and give the notice, required by
10this section within the relevant statutory period.

44 Exempt 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) 15has 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—

(a) has a right of permanent residence in the United Kingdom by virtue of
20an enforceable EU right or of any provision made under section 2(2) of
the European Communities Act 1972;

(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).

(3) 25The 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
30of 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.

45 35Conduct 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) 40As 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”).

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

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

(6) Within the 70 day period, the Secretary of State must—

(a) decide the compliance question; and

(b) 5give notice of that decision to the persons to whom the Secretary of
State gave the section 43 notice relating to the proposed marriage or
civil partnership.

(7) 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 (6) must
10include a statement of the Secretary of State’s reasons for reaching that
decision.

(8) 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
15to comply with a relevant requirement;

(b) the consequences of a relevant party’s failure to comply with a relevant
requirement.

(9) The provision that may be made under subsection (8)(b) includes provision for
the compliance question to be decided (in whole or in part) by reference to a
20relevant party’s compliance or non-compliance with one or more relevant
requirements.

(10) In this section—

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

• 25“investigation” means an investigation, conducted following a decision
  by the Secretary of State under section 43, 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;

• 30“relevant requirement” means any requirement imposed by law,
  including a requirement imposed by—

  (a)

  regulations under section 46;

  (b)

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

  (c)

  regulations under section 28D of that Act;

  (d)

  35section 8A, or any of sections 9 to 9B, of the Civil Partnership
  Act 2004.

46 Investigations: supplementary

(1) A section 43 notice which states that the Secretary of State has decided to
investigate whether a proposed marriage or civil partnership is a sham must
40include—

(a) notice that the compliance question must be decided within the period
of 70 days mentioned in section 45(6);

(b) notice of the date on which that period will end; and

(c) prescribed information about the investigation.

(2) 45The section 43 notice may also include such other information as the Secretary
of State considers appropriate.

(3) For the purposes of subsection (1)(c) “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) 5requirements 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) 10the consequences of those outcomes.

(4) The Secretary of State may, by regulations, impose on relevant parties
requirements relating to the conduct of investigations.

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

(a) 15a requirement to be present at a particular place at a particular time;

(b) a requirement to be visited at home;

(c) a requirement to be interviewed;

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

(e) a requirement to provide photographs;

(f) 20a 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
25investigate such marriages or civil partnerships).

(7) In this section “investigation”, “relevant party” and “compliance question”
have the same meanings as in section 45.

Referral

47 Referral of proposed marriages and civil partnerships in England and Wales

30Schedule 4 (referral of proposed marriages and civil partnerships in England
and Wales) has effect.

Scotland and Northern Ireland

48 Extension of scheme to Scotland and Northern Ireland

(1) The Secretary of State may, by order, make such provision as the Secretary of
35State considers appropriate for extending the referral and investigation scheme
to any of the following—

(a) proposed marriages under the law of Scotland;

(b) proposed civil partnerships under the law of Scotland;

(c) proposed marriages under the law of Northern Ireland;

(d) 40proposed civil partnerships under the law of Northern Ireland.

(2) An order under this section may—

(a) make provision having a similar effect to the provision made by section
52, Schedule 4, or Parts 1, 2 and 4 of Schedule 5;

(b) confer functions on any person, including, in the case of persons
exercising functions in Scotland or Northern Ireland in relation to
5marriage or civil partnership, power to make relevant administrative
provision by subordinate legislation;

(c) amend, repeal or revoke any enactment (including an enactment
contained in this Act).

(3) The power under subsection (2)(b) to confer functions includes power to
10impose a duty of referral on persons exercising functions in Scotland or
Northern Ireland in relation to marriage or civil partnership.

(4) But an order under this section may not impose that or any other duty, or
otherwise confer functions, on—

(a) the Scottish Ministers,

(b) 15the First Minister and deputy First Minister in Northern Ireland,

(c) a Northern Ireland Minister, or

(d) a Northern Ireland department.

(5) In this section—

• “duty of referral” means a duty to refer a proposed marriage or proposed
  20civil partnership to the Secretary of State in a case where—

  (a)

  one of the parties is not an exempt person, or

  (b)

  both of the parties are not exempt persons;

• “enactment” includes—

  (a)

  an enactment contained in subordinate legislation within the
  25meaning of the Interpretation Act 1978;

  (b)

  an enactment contained in, or in an instrument made under, an
  Act of the Scottish Parliament;

  (c)

  an enactment contained in, or in an instrument made under,
  Northern Ireland legislation;

• 30“referral and investigation scheme” means the provision made by sections
  43 to 46;

• “relevant administrative provision” means administrative provision
  relating to proposed marriages or civil partnerships.

CHAPTER 2 Sham marriage and civil partnership

49 35Meaning of “sham marriage” and “sham civil partnership”

(1) The Immigration and Asylum Act 1999 is amended in accordance with this
section.

(2) In section 24 (duty to report suspicious marriages), for subsection (5)
substitute—

“(5) 40A marriage (whether or not it is void) is a “sham marriage” if—

(a) either, or both, of the parties to the marriage is not a relevant
national,

(b) there is no genuine relationship between the parties to the
marriage, and

(c) either, or both, of the parties to the marriage enter into the
marriage for one or more of these purposes—

(i) 5avoiding the effect of one or more provisions of United
Kingdom immigration law or the immigration rules;

(ii) enabling a party to the marriage to obtain a right
conferred by that law or those rules to reside in the
United Kingdom.

(6) 10In subsection (5)—

• “relevant national” means—

  (a)

  a British citizen,

  (b)

  a national of an EEA state other than the United
  Kingdom, or

  (c)

  15a national of Switzerland;

• “United Kingdom immigration law” includes any subordinate
  legislation concerning the right of relevant nationals to move
  between and reside in member States.”.

(3) In section 24A (duty to report suspicious civil partnerships), for subsection (5)
20substitute—

“(5) A civil partnership (whether or not it is void) is a “sham civil
partnership” if—

(a) either, or both, of the parties to the civil partnership is not a
relevant national,

(b) 25there is no genuine relationship between the parties to the civil
partnership, and

(c) either, or both, of the parties to the civil partnership enter into
the civil partnership for one or more of these purposes—

(i) avoiding the effect of one or more provisions of United
30Kingdom immigration law or the immigration rules;

(ii) enabling a party to the civil partnership to obtain a right
conferred by that law or those rules to reside in the
United Kingdom.

(5A) In subsection (5)—

• 35“relevant national” means—

  (a)

  a British citizen,

  (b)

  a national of an EEA state other than the United
  Kingdom, or

  (c)

  a national of Switzerland;

• 40“United Kingdom immigration law” includes any subordinate
  legislation concerning the right of relevant nationals to move
  between and reside in member States.”.

50 Duty to report suspicious marriages and civil partnerships

(1) The Immigration and Asylum Act 1999 is amended in accordance with this
45section.

(2) In section 24 (duty to report suspicious marriages), in subsection (1)—