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Mr. Kirkhope: We all appreciate the sincerity with which supporters of the amendments have spoken this evening, particularly the hon. Members for Leyton(Mr. Cohen), for Walthamstow (Mr. Gerrard) and for Stratford-on-Avon (Mr. Howarth), but frankly it is simply not a sensible or practical approach to set out the interpretation of the United Nations convention in domestic primary legislation.
With reference to amendment No. 58, it is ultimately for the courts to determine the interpretation of the convention rather than the Government. Sexual orientation is taken into account in the assessment of individual asylum claims where relevant, but our approach is not to make an abstract judgment as to whether homosexuals or any other set of people might or might not be regarded as a social group. Claims are considered on their individual merits in the light of all the circumstances of a particular case, and in Committee my hon. Friend the Minister of State wrote to the hon. Member for Liverpool, Mossley Hill (Mr. Alton) on a number of points, including on the question of homosexuals in relation to convention criteria. She set out the Government's position fully. The correspondence was made available to all members of the Standing Committee, and copies were placed in the Vote Office before Report began.
Mr. Alton:
I had hoped that the Minister would refer to that letter. As he said, many of the issues, including the cases that, quite properly, were raised today, were referred to in Committee, and the letter was sent by the Minister of State on 31 January. It might be helpful to hon. Members if the letter were published so that they can see it properly. Members of the Committee found it helpful.
Mr. Kirkhope:
I am sure that there would be no problem about having the letter placed in the Library, if that is the hon. Gentleman's wish.
I shall deal first with the drafting of amendments Nos. 1 and 2 and then set out some of the policy issues that they raise.
The acceptance of these amendments would result in common-law and homosexual relationships, which involve two people living together with a mutual commitment to a shared life, being accorded the same status as those who are married, for the purpose of immigration. The only objective test for the strength of a relationship in an immigration context is marriage. The concept of an interdependent partner is vague and ill-defined. These amendments would allow any person to claim that he or she was involved in a genuine and lasting relationship and consequently qualified for leave to remain in the United Kingdom without making the commitment to the relationship that is implicit in marriage. The introduction of the concept of an interdependent partner to the Immigration Act and immigration rules would cause difficulties of interpretation, would result in an increase in contested cases and would make the administration of immigration control more difficult than at present.
Mr. Kirkhope:
I shall continue for a moment.
I said that the amendments raise policy issues. Therefore, for the convenience of the House, I shall set out details of a change in policy that we intend to make to the way in which applications for leave to enter or remain as a partner in a heterosexual common-law relationship are considered. This point arises directly from the amendments, and it seems right for us to bring it before the House on the suitable occasion of the debate on these amendments.
The number of foreign nationals seeking to remain here on the basis of a common-law relationship has increased from about 400 in 1991 to about 900 now. There is evidence that some foreign nationals are seeking to prolong their stay here by claiming to be partners in common-law relationships. The immigration rules provide for the admission of married couples and fiances who are expected to marry within a reasonable period. The rules do not provide for the admission of foreign nationals who are partners in common-law relationships. In the light of the figures to which I have referred, my right hon. and learned Friend the Home Secretary has decided that the requirements of the immigration rules should be henceforth strictly applied.
A foreign national who wishes to join or remain here with a person settled here must be married to that person, except for those who qualify under the immigration rules as fiances or fiancees. Foreign nationals who apply to enter or remain on the basis of a common law relationship can, with immediate effect, expect to have their applications refused.
It is not our intention to apply these new requirements retrospectively. But any foreign national refused leave to remain on the basis of a common-law relationship who does not leave the United Kingdom voluntarily may normally expect deportation action to be taken against him. In deciding whether deportation is the appropriate course, consideration will be given to any compassionate factors that may be present.
I shall give the House some examples of the sorts of case which have caused us concern. An applicant who was admitted as a working holidaymaker sought leave to remain as a common-law spouse. Checks of the evidence provided in support of the application revealed that the applicant was simply sharing a house with a British citizen and that no relationship existed.
In another case, a visitor sought leave to remain as a common-law spouse. Inquiries into the evidence produced suggested that what was intended was a prolonged visit so as to enable the applicant to earn sufficient money to marry in her own country.
Mr. Alan Howarth:
No Opposition Member is arguing that the forms of abuse that the Minister has so recently illustrated should be condoned or that the law should be amended to enable such practices to occur.
I take up the Minister's argument that he cannot accept the amendments because they are unrealistic and impracticable. Will he comment on the fact that Australia, Canada, Denmark, Finland, the Netherlands, Norway, New Zealand, Spain, Sweden and South Africa all include provision for lesbian and gay relationships in their immigration rules and accept the concept of the
interdependent partner, in whatever language those countries choose to use? If they find it feasible, what is the Minister's objection in principle?
Mr. Kirkhope:
The hon. Gentleman must realise that we use as the basis for our immigration rules in these cases the institution of marriage--in other words, the fact that there is a marriage. It does not necessarily have always to be a United Kingdom marriage, but a marriage that is legitimate in all respects in the country where it was celebrated. We see no reason to change that position.
It was argued throughout consideration of the Bill in Committee that in our immigration rules and regulations we should look for clarity. Our proposals and my remarks this evening underline our commitment to clarity and to avoidance of doubt and misunderstanding.
Mr. Straw:
I take up a separate but important issue. The Minister has said that the rules allow for settlement in appropriate circumstances of people who are already married or who are coming here to be married as fiances or fiancees. Will he make it clear that nothing in the changes that he has announced is intended to discriminate against people who are fiances or fiancees with the intention of marriage?
In my constituency there is a view--I try constantly to disabuse my constituents of it--that it is necessary to marry before application for settlement has been accepted so as to facilitate that application. That often leads to an application for good reasons being rejected and the woman having to remain married.
Mr. Kirkhope:
I assure the hon. Gentleman that we intend to continue the arrangement that couples should be married or that there should be a fiance or fiancee involved, with an intention to marry in the near future.
Mrs. Maria Fyfe (Glasgow, Maryhill):
If a woman is seeking entry into the United Kingdom and she says, "I have proof that I have had a common-law relationship with Mr. X for several years", it seems that no attention will be paid to her assertion. If, however, she says, "I am engaged to Mr. X and here is my engagement ring", it seems that that will be all right. That does not make sense to me.
Mr. Kirkhope:
We have made it clear that we accept the status of a fiance or a fiancee if that is what she or he is shown to be. As I have said, marriage is the institution which we recognise in these circumstances. It provides the only safe way, and international way, in which we can deal fairly with these matters.
Amendment No. 19 provides for the inclusion in the Immigration Act 1971 of one of several concessions, which exist outside the immigration rules, allowing people to come to the United Kingdom for various types of employment. As such, the concession sought is already covered by the reference in section 1(4) of the 1971 Act to
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"persons coming for the purpose of taking employment".
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