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

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Article 2(3)

SCHEDULE 3Amendments to the Civil Partnership Act 2004

This schedule has no associated Explanatory Memorandum

1.  The Civil Partnership Act 2004(1) is amended as follows.

2.  After section 88(2) insert—

Additional information if party not relevant national

88A.(1) This section applies to a notice of proposed civil partnership submitted to a district registrar in accordance with section 88 if one, or each, of the parties to the proposed civil partnership is not a relevant national.

(2) For each party to the proposed civil partnership who is not a relevant national, the notice must be accompanied by whichever of statements A, B or C is applicable to that person.

(3) Statement A is a statement that the person has the appropriate immigration status.

(4) Statement B is a statement that the person holds a relevant visa in respect of the proposed civil partnership.

(5) Statement C is a statement that the person neither—

(a)has the appropriate immigration status, nor

(b)holds a relevant visa in respect of the proposed civil partnership.

(6) If the notice is accompanied by the statement referred to in the first column of an entry in this table, the notice must also be accompanied by the information and photographs referred to in the second column of that entry (insofar as that entry is applicable to the parties to the proposed civil partnership)—

If the notice is accompanied by this statement.......the notice must also be accompanied by....
Statement A (in respect of one or both of the parties to the proposed civil partnership)For each party in respect of whom statement A is made, details of the particular immigration status which that party has
Statement B (in respect of one or both of the parties to the proposed civil partnership)

1. For each party, a specified photograph of that party

2. For each party in respect of whom statement B is made, details of the relevant visa which that party has

Statement C (in respect of one or both of the parties to the proposed civil partnership)

1. For each party, a specified photograph of that party

2. For each party, the usual address of that party

3. For each party who has previously used any name or names other than the person’s name stated in the civil partnership notice, a statement of the other name or names

4. For each party who currently uses, or has previously used, an alias or aliases, a statement of the alias or aliases.

(7) If the notice is accompanied by more than one of statements A, B and C, subsection (6) must be complied with in relation to each of those statements; but where the notice is accompanied by statements B and C, subsection (6) does not require the notice to be accompanied by more than one specified photograph of each party.

(8) If the notice is accompanied by statement C for a party to the proposed civil partnership—

(a)the notice may also be accompanied by a statement (“statement D”) of that person’s immigration position in the United Kingdom;

(b)if the notice is accompanied by statement D for a party to the proposed civil partnership, the person may provide the district registrar with details of his immigration position in the United Kingdom; and

(c)if any such details are provided, the district registrar must record them.

(9) In this section and section 88B—

(a)a reference—

(i)to a person having the appropriate immigration status, or

(ii)to a person holding a relevant visa,

is to be construed in accordance with section 49 of the 2014 Act;

(b)a reference to the particular immigration status which a person has is a reference to the immigration status set out in any of paragraphs (a) to (c) of section 49(2) of that Act which the person has;

(c)a reference to a person’s immigration position in the United Kingdom includes a reference to the person’s not being entitled to be in the United Kingdom.

(10) In this section “specified photograph” means a photograph that is in accordance with regulations made by the Secretary of State under section 54(2) of, and paragraph 3 of Schedule 5 to, the 2014 Act (and for this purpose “photograph” includes other kinds of images).

Additional evidence if party not relevant national

88B.(1) If a notice of proposed civil partnership to which section 88A applies (“the notice”) is accompanied by statement A (referred to in section 88A(3)), and accordingly is also accompanied by details of the particular immigration status which a party to the proposed civil partnership has, the notice must also be accompanied by specified evidence of that status.

(2) If the notice is accompanied by statement B (referred to in section 88A(4)), the notice must also be accompanied by specified evidence of the holding of the relevant visa by the party to the proposed civil partnership.

(3) If, in accordance with section 88A(6), the notice is accompanied by the usual address of a party to the proposed civil partnership, the notice must also be accompanied by specified evidence that it is that party’s usual address.

(4) If the notice is accompanied by statement D (referred to in section 88A(8)), the notice may also be accompanied by evidence of the person’s immigration position in the United Kingdom.

(5) If subsection (1) or (2) applies to the notice, and the notice is not accompanied by the specified evidence required by that subsection, the notice must be accompanied by—

(a)photographs and addresses of the kinds referred to in paragraphs 1 and 2 in the relevant entry in section 88A(6);

(b)as respects the usual address of each party that is provided in accordance with sub-paragraph (a), specified evidence that the address provided is that party’s usual address; and

(c)names and aliases of the kinds referred to in paragraphs 3 and 4 in the relevant entry in section 88A(6) (insofar as those paragraphs are applicable to the proposed civil partnership).

(6) In this section—

“relevant entry in section 88A(6)” means the second column of the last entry in the table in section 88A(6);

“specified evidence” means evidence that is in accordance with regulations made by the Secretary of State under section 54(2) of, and paragraph 3 of Schedule 5 to, the 2014 Act.

Declaration to accompany information and evidence

88C.  Where the notice of proposed civil partnership is accompanied by—

(a)information provided in accordance with section 88A, and

(b)information and evidence provided in accordance with section 88B,

that information and evidence must also be accompanied by a declaration in writing and signed by the party who makes it that the party believes all of the information and evidence accompanying the notice to be true.

Rejection of false information or evidence

88D.(1) A district registrar may reject—

(a)any evidence relating to a party’s nationality provided in accordance with section 88(8)(3),

(b)any information or photograph provided under section 88A or 88B, or

(c)any evidence provided under section 88B,

if (in particular) the district registrar has reasonable grounds for suspecting that the information, photograph or evidence is false.

(2) If the district registrar rejects any information, photograph or evidence, the district registrar may proceed under this Act as if the rejected information, photograph or evidence had not been provided.

(3) This section does not limit the powers of the district registrar to reject anything provided under any other enactment.

(4) In this section “enactment” includes an enactment comprised in, or an instrument made under, an Act of the Scottish Parliament.

Notice of proposed civil partnership: treated as not given

88E.(1) Where any of the requirements imposed by or under any of the provisions of this Act mentioned in subsection (2) is applicable but not complied with by either or both parties to the proposed civil partnership, the parties are to be taken not to have submitted notice under section 88.

(2) The provisions are—

(a)section 88(8);

(b)section 88A(2) to (7);

(c)section 88B(3) or (5);

(d)paragraph 9 of Schedule 23.

Referral of proposed civil partnership to the Secretary of State

88F.(1) On every occasion when notice of proposed civil partnership is submitted under section 88, a district registrar must decide whether or not each of the parties to the proposed civil partnership is an exempt person.

(2) But this section does not apply if section 96 applies to the proposed civil partnership.

(3) In making a decision under subsection (1) about a party to a proposed civil partnership, a district registrar may rely on any advice given in relation to that decision by the Secretary of State.

(4) In a case where—

(a)section 88A applies to the notice of proposed civil partnership, and

(b)specified evidence required by section 88B(1) or (2) in relation to a party to the proposed civil partnership is not produced in accordance with that section,

the district registrar must decide that that party to the proposed civil partnership is not an exempt person.

(5) If the district registrar decides that either of the parties is not an exempt person, or that both of the parties are not exempt persons, the registrar must—

(a)refer the proposed civil partnership to the Secretary of State;

(b)notify the parties to the proposed civil partnership that the proposed civil partnership must be referred to the Secretary of State;

(c)give the parties to the proposed civil partnership prescribed information about—

(i)the effects of the referral;

(ii)the requirement under regulations to notify the Secretary of State of changes of address.

(6) The district registrar must act in accordance with regulations when complying with the duty in subsection (5)(a) to refer a proposed civil partnership to the Secretary of State.

(7) If the district registrar refers the proposed civil partnership to the Secretary of State, this Act has effect in relation to the proposed civil partnership subject to the modifications in Schedule 10A.

(8) In this section—

(a)a reference to a person being an exempt person has the same meaning as in section 49 of the 2014 Act;

(b)“prescribed information” means information prescribed in regulations;

(c)“regulations” means regulations made by the Secretary of State under section 54(2) of, and Schedule 5 to, the 2014 Act.

3.  After Schedule 10 (forbidden degrees of relationship)(4) insert—

section 88F(7)

SCHEDULE 10AModifications if proposed civil partnership referred under section 88F

Introduction

1.(1) These are the modifications subject to which this Act has effect if the district registrar refers a proposed civil partnership to the Secretary of State.

(2) In this Schedule “referred civil partnership” means the proposed civil partnership referred to the Secretary of State.

No civil partnership schedule to be completed until decision about investigation etc

2.(1) The duty under section 94 (civil partnership schedule)(5) to complete a civil partnership schedule in respect of the referred civil partnership does not apply unless and until one of the following events occurs.

(2) Event 1 occurs if—

(a)the Secretary of State gives the district registrar the section 48 notice, and

(b)the notice is of a decision not to investigate whether the referred civil partnership is a sham.

(3) Event 2 occurs if—

(a)the relevant statutory period ends, and

(b)the Secretary of State has not given the district registrar the section 48 notice.

(4) Event 3 occurs if—

(a)the Secretary of State gives the district registrar the section 48 notice,

(b)that notice is of a decision to investigate whether the referred civil partnership is a sham,

(c)the Secretary of State gives the district registrar the section 50 notice, and

(d)that notice is of a decision that both of the parties to the referred civil partnership have complied with the investigation.

(5) Event 4 occurs if—

(a)the 70 day period ends, and

(b)the Secretary of State has not given the district registrar the section 50 notice.

(6) Event 5 occurs if the Secretary of State gives the district registrar notice that the duty under section 94 is applicable.

(7) The Secretary of State may give a notice for that purpose only if—

(a)the Secretary of State has given the district registrar the section 48 notice,

(b)that notice is of a decision to investigate whether the referred civil partnership is a sham,

(c)the Secretary of State has given the district registrar the section 50 notice, and

(d)that notice is of a decision that one or both of the parties to the referred civil partnership have not complied with the investigation.

(8) This paragraph applies in addition to any other requirements applicable to the completion of the civil partnership schedule.

(9) This paragraph is subject to paragraph 4.

(10) In this paragraph—

“70 day period” has the same meaning as in section 50(11) of the 2014 Act;

“relevant statutory period” has the same meaning as in section 62(6) of the 2014 Act;

“section 48 notice” means notice under section 48(8D)(7) of the 2014 Act;

“section 50 notice” means notice under section 50(7) of the 2014 Act.

Civil partnership to be investigated: extension of 28 day period to 70 days

3.(1) The modifications in this paragraph have effect if the Secretary of State gives the district registrar notice under section 48(8D) of the 2014 Act of a decision to investigate whether the referred civil partnership is a sham.

(2) Section 91(1)(8) has effect as if—

(a)for the words from “being” to “section 90” there were substituted “being a date before the expiry of the relevant 70 day period”, and

(b)the words from “; and if a date” to the end were omitted.

(3) Section 94(9) has effect as if for paragraph (b) there were substituted—

(b)the relevant 70 day period has expired,”.

(4) In sections 91 and 94 (as modified by this paragraph) and in paragraph 4 “relevant 70 day period” means the period—

(a)beginning the day after the particulars of the proposed civil partnership are entered in the civil partnership book in accordance with section 89 (civil partnership notice book), and

(b)ending at the end of the period of 70 days beginning with that day.

(5) This paragraph is subject to paragraph 4.

Effect of reducing statutory period

4.(1) Where—

(a)either—

(i)a district registrar is authorised to fix a date for the date of registration of the referred civil partnership that is 28 days or fewer after publicisation by the district registrar under section 90(1), or

(ii)in the case of a referred civil partnership to which paragraph 3 applies, the district registrar is authorised to fix a date for the date of registration before the expiry of the relevant 70 day period, and

(b)the authorisation mentioned in sub-paragraph (i) or, as the case may be, (ii) of paragraph (a) is given at a time when the duty under section 94 to complete a civil partnership schedule in respect of the referred civil partnership has not arisen in accordance with paragraph 2,

the duty under section 94 to complete the civil partnership schedule arises on the giving of the authorisation, subject to any other requirements applicable to the completion of the schedule being met.

(2) But the requirements of paragraph 2 are not applicable in such a case.

(3) The Secretary of State is not prevented from deciding to conduct, conducting, or continuing, an investigation if the civil partnership schedule is completed as mentioned in sub-paragraph (1).

(4) But in such a case, nothing in the 2014 Act requires the Secretary of State to decide whether to conduct, or to continue, an investigation.

(5) In this paragraph “investigation” means an investigation, conducted following a decision by the Secretary of State under section 48 of the 2014 Act, whether a proposed civil partnership is a sham.

4.  In section 89(10) (civil partnership notice book), after subsection (3) insert—

(4) Subsection (1) is subject to section 88E.

5.—(1) Section 91 (early registration) is amended as follows.

(2) After subsection (1) insert—

(1A) Unless subsection (1B) applies, if a proposed civil partnership is referred to the Secretary of State under section 88F(11) (“the referred civil partnership”) the Registrar General may not authorise the district registrar to fix the specified date mentioned in subsection (1) as the date for registration of the referred civil partnership without the consent of the Secretary of State.

(1B) This subsection applies if the request made under subsection (1) is made because a party to the referred civil partnership is gravely ill and not expected to recover.

6.  After section 94 insert—

Notice of proposed civil partnership: false information or evidence

94A.(1) A district registrar may refuse to complete a civil partnership schedule under section 94 in a case where—

(a)a civil partnership notice has been submitted under section 88(1), and

(b)the district registrar has reasonable grounds for suspecting that a relevant decision was made incorrectly because of the provision of false information or evidence in or accompanying that notice.

(2) If the district registrar refuses to complete a civil partnership schedule under subsection (1), the parties to the proposed civil partnership are to be taken not to have submitted a notice of proposed civil partnership under section 88; but that does not prevent criminal proceedings from being brought against either party, or any other person, in relation to the submission of notice.

(3) This section is without prejudice to any other powers of district registrars to refuse to complete a civil partnership schedule.

(4) In this section—

“evidence” includes a photograph or other image;

“exempt person” has the same meaning as in section 88F;

“relevant decision” means a decision of a district registrar that a party to the proposed civil partnership is an exempt person.

7.  In section 126(1) (regulations) after “Chapters 2” insert “(except in section 88F)”.

8.  In section 135(1) (interpretation) in the appropriate places insert—

(a)“2014 Act” means the Immigration Act 2014(12);;

(b)“relevant national” has the same meaning as in section 30A(13);.

(2)

Subsections (1), (2) and (5) were amended by, and subsection (5A) inserted by, section 52 of the Local Electoral Administration and Registration Services (Scotland) Act (asp 14); subsections (7) to (10) were inserted by sections 24 and 25 of the Marriage and Civil Partnership (Scotland) Act 2014 (asp 5).

(3)

Section 88(8)-(10) was inserted by section 25 of the Marriage and Civil Partnership (Scotland) Act 2014 (asp 5).

(4)

Amendments have been made to this Schedule but they are not relevant to this Order.

(5)

Section 94 has been amended by section 24(12) of the Marriage and Civil Partnership (Scotland) Act 2014 (asp 5).

(6)

The definition of “relevant statutory period” contained in section 62 is amended by Schedule 4 to this Order and Schedule 4 to the Referral and Investigation of Proposed Marriages and Civil Partnerships (Northern Ireland) Order 2015 (S.I. 2015/395).

(7)

Section 48D is inserted by paragraph 2 of Schedule 4 to this Order.

(8)

Subsection (1) was amended by and subsection (2) inserted by section 24 of the Marriage and Civil Partnership (Scotland) Act 2014 (asp 5) (“2014 Act”).

(9)

Subsection (1) was amended by, and subsection (2) inserted by, section 24 of the 2014 Act.

(10)

Subsection (3) was inserted by section 24 of the Marriage and Civil Partnership (Scotland) Act 2014 (asp 5).

(11)

Section 88F is inserted by paragraph 2 of Schedule 1 to this Order.

(13)

Section 30A was inserted by section 52 of, and paragraph 27 of Schedule 4 to, the Immigration Act 2014 (c. 22).

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