Draft Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Remedial) Order 2010

Debate between Lord Avebury and Baroness Neville-Jones

Monday 4th April 2011 Lords Chamber

[The Minister of State, Home Office (Baroness Neville-Jones)]

My Lords, the purpose of this draft remedial order is to abolish the certificate of approval scheme to prevent sham marriages. A certificate gives migrants written permission from the Home Office to marry. I am grateful to the Joint Committee on Human Rights for its support in this matter.

In its first report on the order published on 16 November 2010 the JCHR agreed that the scheme should be abolished. It also agreed with the Government’s approach in using this order to achieve abolition. The Government laid a revised order in December 2010 making minor technical changes recommended by the JCHR. In its second report published on 14 March the JCHR recommended that Parliament now approve this order.

The Government want to bring this order into force subject to your Lordships’ agreement. We are doing so for two reasons. First, the domestic courts have declared that the scheme is incompatible with the European Convention on Human Rights. Abolishing the scheme will remove this incompatibility. Secondly, changes made following rulings from the domestic courts have weakened the scheme and the Government do not consider it any longer to be an effective method of dealing with sham marriages.

The certificate of approval scheme was introduced in 2005 by our predecessors to protect the immigration system and marriage laws from abuse, in particular from those entering into sham marriages. The scheme did not and still does not apply to Anglican marriages taking place in England and Wales and this different treatment for non-Anglicans is at the heart of the judgments against the scheme. The House of Lords ruled the scheme unlawful in the case of Baiai by making a declaration of incompatibility relating to the discrimination between civil and Anglican marriages.

The scheme has been modified in several ways to comply with court rulings. This included allowing people who had been excluded from the original scheme to apply for permission to marry—for example, illegal immigrants—and we also suspended the application fee. However, the current scheme is now frankly a shadow of its former self. It is ineffective as a means of preventing sham marriages and we believe that there is no merit in continuing with it. The Government therefore intend to end the scheme, subject to approval, on 9 May. Your Lordships may ask what the effect will be. Indeed, it is hard to know. There is a risk that reports of sham marriages from registrars will rise when the scheme ends. Common sense indicates that this could well be the case. The Government will do their level best to combat the risk with the remaining powers at their disposal, which I am about to outline.

Reports of sham marriages are already rising. In 2009, there were 561 reports of suspected sham marriages; in 2010, there were 934 such reports. We do not know the extent to which this constitutes a real rise or simply better reporting. Either way, there is a problem here to tackle, which must be of concern to everyone in this House. Therefore, when the scheme is abolished, the UK Border Agency will use the powers it still has to tackle sham marriage abuse. It is looking at ways in which it can use them more effectively to stop what is obviously covert immigration. It will obtain sham marriage information from the register office.

The registrars will play a very important role in the future. It is already a key role and it will become even more important. Civil registrars will continue to exercise their duty to report any suspicious marriage to the UK Border Agency, under Section 24 of the Immigration and Asylum Act 1999. The existing rise in the number of reports reflects the work that is already being undertaken by registrars to focus on tackling this abuse. This work will be intensified. It will also ensure that migrants will still be permitted only to give notice to marry at one of a number of designated register offices throughout the UK. This will mean that the UKBA can focus resources on a limited number of locations.

The UK Border Agency will also act on information so that immigration officers will be able to disrupt sham marriages scheduled to take place in churches. The UKBA is building on existing relations with the Anglican Church so that suspicions about sham marriages are reported by clergymen and clergywomen. The UK Border Agency has developed training for members of the clergy to help them identify potentially suspicious marriages. Immigration officers and police will continue to work together to arrest facilitators, brides, grooms, witnesses and guests—anybody who is involved—at ceremonies across the country that are, in fact, sham.

The aim will be to destroy a criminal business if one is taking place. We have already had some notable successes. In the north-west, for instance, seven Czech nationals were recently sentenced to between 16 months and five years for their part in facilitating sham marriages, some of which were also bigamous. Two of the group also received custodial sentences. An operation in the Midlands has so far seen 13 people convicted, with sentences totalling 20 years. Last month the agency mounted its largest sham marriage operation to date, which saw officers swoop on geographically spread addresses in London, Birmingham, Nottingham, Devon and Kent, while a simultaneous operation took place with the Dutch police in Rotterdam and Tilbury. There have also been a number of successful operations where churches have supplied information when they believed a marriage might be suspect. This included the conviction of an Anglican vicar, Alex Brown, and his two co-conspirators, who were recently found guilty of facilitating more than 300 sham marriages.

The UK Border Agency will also prevent a person who has entered into a sham marriage acquiring any immigration rights. The legal position is clear. Those who enter into sham marriages are not able thereby to rely on that marriage to obtain leave to remain or to acquire the right to reside in the UK as the spouse of an EEA national. Third-country nationals wishing to enter the UK on the basis of a marriage to a British citizen or person settled here are and will remain subject to our Immigration Rules. If we believe a marriage to be a sham, an application for leave to remain under the Immigration Rules will be refused. That still has to happen. Those who are discovered taking part in, or facilitating, sham marriages will be prosecuted.

We are closely scrutinising the marriage route to the right to remain and looking at measures to tighten it. We have already announced that we intend to consult on extending the spouses’ probationary period before settlement beyond the current two years. An additional period would allow a longer time to test the genuineness of the relationship. As I said, the Government will do their best to combat the abuse of immigration through sham marriage. I commend the order to the House.

[Lord Avebury]

My Lords, of course we welcome this order, which corrects a serious error of judgment by the previous Government. We also welcome the Minister’s careful explanation of its purpose and consequences. She said that there was evidence of an increase in the number of sham marriages in the figures for 2009 to 2010. If I have the correct figures, the number of sham marriages increased from 561 in the first of those years to 934 in the second. However, is it not a fact that people do not acquire any additional rights to remain as a result of a marriage when they have entered the country for some other purpose? It would be interesting to find out what the subsequent immigration experience of the people was whose marriages were reported as possibly being sham. I am sure that the UK Border Agency carefully followed up all the reports that the Minister has mentioned. For future reference it would be useful to know how many of the people were subsequently prevented from remaining in the country because it was established that the marriages were not only suspected of being sham but were actually false.

The Minister also spoke about the experience of the police in detecting particular cases. She mentioned the Czechs who were convicted and sentenced to between 16 months and five years for facilitating sham marriages, and said that in some cases those marriages were proved to have been bigamous. Obviously, an offence was committed by those people quite apart from the immigration offence and they would have quite properly been convicted for that reason.

When the Labour Government introduced certificates of approval for marriages between people, either or both of whom were subject to immigration control, there were immediate warnings from those with experience of immigration law and the European Convention on Human Rights that the scheme was discriminatory. The Immigration Law Practitioners’ Association briefing to your Lordships for the Third Reading of the Asylum and Immigration (Treatment of Claimants, etc.) Act said that the provisions on sham marriages did not apply to those who marry in the Church of England and were therefore discriminatory against all other religions, a point that was taken up by the Joint Committee on Human Rights in its report of 30 June 2004 and by every single court that subsequently ruled on the matter.

The incompatibility with the convention was identified by the domestic courts as early as 2006, so the remedial order that we are now considering, which is intended to be “fast track” corrective action following a declaration of incompatibility, has taken five years to mature. Not surprisingly, the Joint Committee on Human Rights regrets the substantial delay. Having set out their intention to use a non-urgent remedial order under Section 10 of the Human Rights Act 1998, this Government acted as quickly as possible to abolish the certificate of approval scheme in response to the House of Lords judgment in the case of Baiai, which had been delivered on 30 July 1998. Will my noble friend say whether it would have made any difference if the matter had been treated as urgent? Does she think that there is any way of speeding up the process generally in any future cases, of which, fortunately, there have been very few so far?

The lesson to be learnt from this episode, however, is that it is dangerous to rush solutions to immigration problems through Parliament towards the end of the proceedings on a Bill without any consultation and in the face of reasoned criticism. The clauses embodying the certificate of approval scheme were introduced on recommitment, a wholly unsuitable mechanism for radical proposals that affect the very institution of marriage, as we said at the time. We were not satisfied that the scheme was effective, proportionate and compatible with the ECHR. The failure of the previous Labour Government to listen to the warnings by the Liberal Democrats, the JCHR and the Immigration Law Practitioners’ Association has cost the taxpayer perhaps hundreds of thousands of pounds in litigation and compensation, and there may be further claims still to come. In particular, there is one case before the European Court of Human Rights, and the JCHR proposed in its 31st report of Session 2007-08 that where there are multiple claims for compensation, the Government should adopt an approach that minimises the burden on the court and expense for the taxpayer. The Government do not consider that there is a significant risk of multiple repeat cases because potential litigants have had plenty of time to challenge the certificate of approval scheme since it was ruled to be unlawful.

There was a scheme for reimbursement of the certificate of approval fee of £295, or £590 where both partners to a marriage were subject to immigration control, but only where the payment caused the applicants real financial hardship at the time of payment. Of the 1,213 requests for repayment of the fee, only 170 had been granted and 49 remained outstanding at the end of January this year. In his letter to the JCHR of 21 December 2010, the Minister said that ILPA was wrong to say that the test for repayment was difficult to satisfy, because anyone able to meet the financial hardship test would qualify. However, the point that ILPA was making was that there was a four-and-a-half year interval between the introduction of the scheme and the date on which the UKBA first made arrangements to reimburse those who had suffered financial hardship. Most people do not keep records for that length of time and might well be unable to produce the evidence required. It does not seem to have occurred to the Minister that this could partly explain the relatively small number of applications for repayment and the 82 per cent failure rate of the ones that were made. I would be grateful if the Minister could comment on that measure.

Immigration: Home Office Procedures

Debate between Lord Avebury and Baroness Neville-Jones

Tuesday 23rd November 2010 Lords Chamber

[Baroness Neville-Jones]

My Lords, the aim of the 2006 regulations, which were brought into effect by our predecessors, appears to have been to cut down on fraudulent claims to the right of abode by ensuring that the validity of the certificate of entitlement which applicants have to have was limited to the lifetime of the passport to which it was attached. Requiring new certificates of entitlement enables a further check on the genuineness of the eligibility to take place. As regards the Canadian lady, on the basis of the press reports—and I have no other information—it would appear that this lady, who was allowed into the country, will be able to claim her right of citizenship through descent. I think that she will have no problem in doing that, and of course she will not have to pay.

[Lord Avebury]

My Lords, will my noble friend put copies of all the paperwork in the case of Anwar and Adjo in the Library, including the judgment of Lord Justice Sedley in which he said that “a shameful decision” had been made—the effective criminalising and enforced removal of an innocent person without either worthwhile evidence or the opportunity to answer? Lord Justice Sedley went on to request that the misuse of the powers of one of the great offices of state should be drawn to the attention of the Home Secretary. Has that been done, and what remedies is the Home Secretary providing for this misuse of powers?

Immigration: Detention of Children

Debate between Lord Avebury and Baroness Neville-Jones

Monday 11th October 2010 Lords Chamber

[Baroness Neville-Jones]

My Lords, I do not accept that. We are going to keep this promise. We are trying to go upstream of the previous procedures for requiring families to leave by encouraging voluntary return. We are engaged in that pilot with the help of NGOs. We will, and must, honour an undertaking that we have given.

[Lord Avebury]

My Lords, bearing in mind that the Royal College of Paediatrics and others have said that significant harm is caused to children detained for immigration control purposes, why has this process not been brought to an end? Will the noble Baroness give a date when the facilities at Yarl’s Wood and other places of detention are to be dismantled so that such detentions cannot happen again?

[Baroness Neville-Jones]

My Lords, I wish I could give a date. We cannot do that because, as things stand, we are taking seriously the whole business of how we bring about a situation whereby it is no longer necessary to detain children. It requires time to get the right procedures in place and, if I may put it this way, it is an earnest of our seriousness that we are going into considerable detail to get the right procedures.

Afghanistan: Child Asylum Seekers

Debate between Lord Avebury and Baroness Neville-Jones

Thursday 10th June 2010 Lords Chamber

[Baroness Neville-Jones]

My Lords, part of the service of providing assistance for reintegration will be to find these children’s families if they have not found them and to attempt to get them a job and an education. Actually, these young people are being helped to be put in a position that they might not have been in when they left their country. I do not think that we are doing them a disservice. On the question of wider immigration and deportation arrangements, that will obviously depend on the circumstances of each country, as the noble Lord knows.

[Lord Avebury]

My Lords, will my noble friend the Minister invite the organisations that have expressed concern about whether these arrangements are in the best interests of the child, including the UNHCR, Refugee and Migrant Justice, the Refugee Council and the Children’s Society, to a meeting so that she can explain the provisions and reassure them? Secondly, given that Sweden, Denmark and the Netherlands are all planning to return children to Afghanistan, while Norway is building a hostel similar to the one that we propose, would not pan-European arrangements for the reception of these children in Afghanistan be better than every state making its own arrangements?

[Baroness Neville-Jones]

My Lords, we have a memorandum of understanding with the Afghan Government about the return of such individuals, to which the UNHCR is party. We work with all the parties to ensure that the terms that I am trying to set out are observed. The noble Lord referred to other interested organisations. My understanding of the position of Refugee Action is that, provided that the conditions are right, which is the proviso that we are trying to meet, it does not have any principled objection to the return of children of this age in the circumstances that are being provided. As for other interested parties, of course I am happy to meet Refugee Action and I intend to make that part of my duties.

Immigration

Debate between Lord Avebury and Baroness Neville-Jones

Thursday 3rd June 2010 Lords Chamber

[Baroness Neville-Jones]

My Lords, as the House will be aware, the Chilcot commission is conducting its work but has not yet finished it. I have had discussions on this and I am quite satisfied that the serious work being done by the Chilcot commission needs to be concluded. As the noble Lord knows, we would like to be able to introduce intercept evidence but we have to await the outcome of that work. We will come back to the House.

[Lord Avebury]

In the SIAC judgment to which the Question refers, was there not a substantial discussion of the risk that these two people, if sent back to Pakistan, would be subjected to torture or inhuman or degrading treatment and that therefore it would have been a breach of the ECHR? However, did not SIAC also add that if the two people who went back voluntarily were not subjected to treatment of that kind, the question of whether the two individuals the subject of the Question might be deported could be revisited?

[Baroness Neville-Jones]

My Lords, the individuals who returned voluntarily did so many months ago, before the hearing. That fact is relevant to the subsequent consideration of the individuals referred to in the Question. The fact that they returned and were not ill treated was one of the reasons for the Government considering that Nasser and Khan would not be ill treated on return. However, the court took the view that this was not sufficiently reliable in their case. The ability to return the two men can be revisited if circumstances change, and we are working on creating the circumstances in which that might be possible.

Immigration: Detention of Children

Debate between Lord Avebury and Baroness Neville-Jones

Wednesday 2nd June 2010 Lords Chamber

[Baroness Neville-Jones]

The noble Baroness makes an important point. All I can say at the present stage is that in the guidelines that we agree consideration should be given to cases of this kind in which an individual problem needs extra help.

[Lord Avebury]

My Lords—

--- Later in debate ---

[Baroness Neville-Jones]

That is the formal case. However, in current circumstances, the average time for which children are being detained is only about 11 days. We are trying to bring that figure down. I pay tribute to the previous Government who did great work in bringing the timescale of these detentions down. I entirely agree that it is a problem. We are trying to make the system as humane as possible.

[Lord Avebury]

My Lords, perhaps I may ask my noble friend about the consultations which on 12 May Mr Damian Green said had already started. Stakeholders, such as the Children’s Society, do not seem to be aware of that. Is it the intention to complete the consultation in six weeks, as we have heard? Will that be in time for them to incorporate any necessary amendments to the Secretary of State’s powers to look after these children under alternative arrangements in the Borders, Citizenship and Immigration Act which will come before your Lordships?

[Baroness Neville-Jones]

My Lords, I will look into that point. I cannot give the noble Lord a definitive answer. All I can say is that we intend to proceed with this really fast. This review will not take very long. I hope that that timescale can be met.