UK immigration rules on marriage, domestic servants

UK immigration rules on marriage, domestic servants

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By Taffy Nyawanza

MANY people in the UK will remember the much reported events that led to the resignation of David Blunkett, the previous Home Secretary in December 2004.

His woes were compounded; if not centred around the fast-tracking of his girlfriend’s domestic servant from the Filippines. Domestic workers, one way or another, have been the cause of many a headache.

As a result, and particularly in light of recent changes to immigration laws, the issue has got to be handled right. I will address this issue in response to a related inquiry from Zoe, a nurse in the NHS with Indefinite Leave to Remain (ILR). Zoe wants to arrange for her Zimbabwean domestic worker to come to the UK. Zoe also has a Zimbabwean fiancé who is currently in the UK on a visitor’s visa. She is planning to marry him shortly.

I will address the domestic servant issue first. The Immigration Rules 395 now make provision for Domestic Workers in Private Households. A domestic worker is regarded as a person providing a personal service linked to the running of the employer's household. Examples include chauffeurs, gardeners, cooks and nannies. In the past, Domestic Workers were provided for only in relation to Diplomatic Households. There is now formal recognition in the Rules for domestic Workers in private households.

According to the Rules, a Domestic Worker must be aged between 18 and 65.
For entry clearance purposes, they must have been employed as a domestic worker for one year or more immediately prior to the application for entry clearance, and living under the same roof as their employer. Alternatively, they should show that they have been working in a household that the employer uses for themselves on a regular basis, and there must be evidence that there is a connection between employer and employee. The rules also permit the Domestic Worker to travel in the company of their employer, or in the company of the employers' minor child.

Once admitted to the UK in this capacity, there is a prohibition on taking employment other than as a domestic worker in a private household. There is the usual prohibition on reliance on public funds for both maintenance and accommodation requirements. However, Domestic Workers can in fact change employers, provided they entered originally with entry clearance in this capacity. As with all other workers in approved employment with work permits, Domestic Workers too may apply for Indefinite Leave to Remain after 4 continuous years in the UK in this capacity.

It is important for Zoe to get it right, especially in light of proposed changes to the law. Whilst the employment of unauthorised workers has always been illegal, the Government has now upped the ante by proposing a spot fine of £2000 for knowingly using illegal workers under the new Immigration, Asylum and Nationality Bill which has received its second reading in the House of Commons. It is important to note that although the government is on record as saying that this law will apply primarily to large businesses, it will also apply to the emplyment of domestic workers.

On another note, it is to be noted that it is a criminal offence to hold the passport of a domestic worker without their permission and refuse to return it upon demand. Equally, there are strict rules against the abuse of domestic workers, such as keeping them under lock and key against their will, having sex with them without their consent, and behaving violently towards them. An organisation known as Kalayaan UK assists people in such situations.

The other issue that Zoe raises concerns her plans for marriage to her fiancé who is temporarily in the UK. With effect from the 1st February 2005, all persons subject to immigration control, meaning anyone without permanent status in the UK such as Zoe’s fiancé, will no longer be able to marry in the UK unless prior permission is obtained from the Secretary of State. Permission is sought by application on a prescribed form and the payment of prescribed fees, currently £135 per person. The permission if granted, will be in the form of a Certificate of Approval (Marriage) from the Home Office.

Exempt persons under this requirement include EEA nationals, people with Indefinite Leave to Remain (ILR), persons who came to the UK with entry clearance as fiancés and persons marrying in the Church of England (where the strict requirements amount to the same thing). Visitors will clearly not be eligible for approval. Zoe’s fiancé will therefore have to travel to Zimbabwe and obtain clearance as a fiancé in order to marry Zoe in the UK, unless he is here on a visit-marriage visa. In that event, he would be expected to marry Zoe, leave the UK before the visit-marriage visa expires, and apply to return as a spouse.
Alternatively of course, Zoe can travel to Zimbabwe with her fiancé, marry him, and then become her new husband’s sponsor in an application for entry clearance as a spouse. Such application would be lodged at the Embassy in Harare, together with the required documentary evidence which includes evidence to show that both parties have met. This might be photographs of each other since knowing each other, letters written to each other, e-mails and telephone bills showing phone calls to each other, the marriage certificate, amongst others.

They must also intend to live permanently with each other after the marriage. Recent changes in the rules now clarify that entry clearance will be refused where either spouse, or party to the proposed marriage is under the age of 18. Interestingly, especially in the context of Zimbabwean culture, entry clearance as a spouse will be refused if the marriage is polygamous, although a spouse in such a marriage may be granted a visitor’s visa.

These changes, especially relating to Approval certificates, are an attempt by the government to stem the rise in sham marriages and marriages of convenience. In particular, this seems to be directed at plugging the loophole which has been used over the years by failed asylum seekers who got married to people who are settled in the UK. This is no longer possible. The possibility of a legal challenge to forced removals of people in such situations under the European Convention of Human Rights remains however. In the meantime, all Registrars of Marriages are under legal obligation to report any suspicious conduct on the part of the couple, especially as to motive for the marriage. To this end, there is in place a set of regulations pertaining to the Reporting of Suspicious Marriages to the Intelligence Section of the Immigration Service.

Where a couple are able to navigate past these regulations and qualify for approval, they will be issued with a Certificate which is valid for 3 months. If the marriage does not happen within this period, the Certificate will lapse. Another point to note is that a Certificate of Approval will not be issued where leave to remain of either party to the marriage is less than 3 months. Once a Certificate of Approval has been granted, notice must be given to the registrar of at least 15 days before the date of the wedding.

Most Zimbabweans are Christians and insist on a church wedding and the blessing of their pastor. Which is commendable. Two things to bear in mind though. Most religious ceremonies in the UK will not be valid unless a civil ceremony has also been carried out by a registrar. For the purposes of the law, it is this civil ceremony which counts. Secondly, under the marriage regulations, only approved premises can be used a marriage venues. This could be a register office, or approved premises in England and Wales, or a registered religious building, apart from an Anglican Church.

Taffy Nyawanza is accredited by the OISC and writes in his personal capacity. He can be contacted at profettaffy@yahoo.co.uk

Disclaimer: This article only provides general information and guidance on immigration law. It is not intended to replace the advice or services of a solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information
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