House of Commons - Home Affairs

Select Committee on Home Affairs Fifth Report

6 SPECIFIC CATEGORIES

239. In the course of our inquiry we looked at immigration control in relation to three specific categories of applicant where there seemed to be particular concerns: students, children and spouses.

Students

240. It is an important objective of Government policy to encourage overseas students to come to study in the UK. UK institutions are keen to attract overseas students because of the extra fee income they bring, and international students contribute approximately £5 billion a year to the UK economy.[254] The UK is currently the second most popular destination in the world for international students (12% of market share), behind only the United States (28%). Foreign students made up 11.2% of the tertiary education enrolment in the UK in 2003.[255] China (30,690) and Greece (22,485) provided the largest numbers of foreign students in the UK in 2003.[256] The second phase of the Prime Minister's Initiative for International Education aims to attract an additional 100,000 overseas students to study in the UK and encourage partnerships between universities and colleges in the UK and overseas. Therefore the immigration system must provide a good service to those applying to study in the UK. We look at general issues relating to customer service in Chapter 9 below, but particular concerns relating to students were raised by a number of witnesses, including the Chief Executive of UKCOSA,[257] Dominic Scott:

258

241. In a briefing note on student migration from China to the UK, Wei Shen told us that that Chinese students (who, according to the Chinese Embassy numbered 80,000 in 2004-05) contributed nearly £800 million to the UK economy through student fees and housing and other expenses. In 2004, the UK overtook the US to become the single most popular destination for Chinese students. But he commented that increases in visa and extension fees might deter future students or lead to overstaying by those already here, and that lack of co-ordination between different parts of the immigration system also posed practical difficulties for students already here.[259]

242. We recognise that the vast majority of overseas students complete their courses and abide by the conditions of their leave. But at the same time there are concerns that the student visa route is open to abuse by people who are not genuine students. The immigration system clearly has to tackle this if public confidence in the student visa route is to be maintained.

243. We received a great deal of evidence about abuse of the student route. South Yorkshire Police have identified what they describe as a widespread scam that reveals a loophole in legislation and regulation: "Our investigations have revealed that under the guise of providing educational courses some colleges are charging foreign nationals several thousand pounds to facilitate their entry into the UK. The individuals enter the UK as vocational students but the actual educational component of their training is nil. They are, in effect, put to work without work permits on the pretence that this is 'on the job' training".[260] The British High Commission in Pakistan told us that they think about half of the students to whom they grant visas disappear after reaching the UK, although not all of those will have gone to the UK with the intention of dropping out. However, as they did not provide us with evidence to support their assertion we cannot be sure how they reached this conclusion. UCAS, the Universities and Colleges Admissions Service, has told us that there was a five-fold increase in the number of applications cancelled due to missing or forged documents between 2000 and 2005, and that three quarters of applications cancelled for this reason were from people domiciled in Nigeria. In Lagos, entry clearance staff found over 1,000 forged documents in the 6,000 student visa applications verified in 2005.[261] We were told during our visit to Nigeria that Leeds University had 2,500 applications from that country alone for its foundation course, and that about 1,250 of those had been accepted by the university, but that the number who actually turned up was five.[262]

244. The IND told us that although they have extensive data on the sort of abuse detected overseas, "what we have not had is information about how people behave once they are in the country if they have been successful in obtaining a student visa".[263] Dominic Scott, the Chief Executive of UKCOSA, is sceptical about whether there is any significant abuse after entry,[264] but our evidence includes a number of allegations relating for example to non-attendance.[265] Of course, without embarkation controls it is not possible to tell how many students stay in the UK after their leave has expired.

STUDENT IMMIGRATION APPLICATIONS

245. Any non-EEA national who wants to study in the UK for longer than six months must apply for entry clearance before travelling to the UK. Visa nationals require a visa for any period of study in the UK. The number of applications for student visas has been steadily increasing in recent years, but many are unsuccessful. In 2004-05 276,479 people applied for visas to study in the UK, and 66% were successful.[266] Not all of the 34% of applicants who are refused will appeal, but Universities UK report that of those who do, at least 25% are successful.[267]

246. Whether applying from overseas or in-country, the applicant must meet the relevant requirements of the Immigration Rules. Various changes to the Immigration Rules on students have been made recently. Since January 2005 student visas or leave to remain have been issued only when the college is on the Register of accredited education and training providers run by the Department for Education and Skills (though the register provides no assurance of the quality of the education provided). In addition, switching to a non-degree course or to do another short course has been stopped.[268]

247. ECOs told us that it is difficult at present to carry out satisfactory verification of applications for student visas. On our visit to Pakistan we were given an insight into the pressure under which ECOs work, with high numbers of applications and limited information available about many of the institutions from which applicants claim to have received offers. The UK and Australia remain the key overseas destinations for Pakistani students, mainly postgraduates. After the September 2001 terrorist attacks, the US tightened up its student visas rules, and as a consequence applications to the UK have risen by almost 40%. During our visit we saw large numbers of advertisements in the Pakistani press for educational establishments in the UK. We were told by British High Commission staff that many of these operate out of one or two rooms, and that agents approach students at airports offering to get them a degree at half the price their agent charged them. The British High Commission refuses about 70% of student applications. Some British universities have agents in Pakistan who will assist in screening and verifying applications, but the majority of refused applications are to the lower-quality, more disreputable colleges. An ECO will check whether a college is on the DfES register of accredited education and training providers.

248. Entry clearance posts must allow enough time for ECOs to conduct proper checks on student applications. However, it should also be the responsibility of the Department for Education and Skills to ensure that there is a secure system of issuing offers which is not open to fraud.

249. Students will not always be granted a visa which covers the whole length of the course; or they may wish to continue studying when it finishes. They would then have to apply to the Home Office for further leave to remain in the UK. Many universities are now part of the "student batch scheme" under which they collect and co-ordinate applications and then send them to a dedicated team of IND caseworkers for decision. When we visited this team in Croydon the system seemed to be working well. Students at other universities and colleges still have to apply direct to the IND themselves.

250. We were told in Islamabad that a large number of applicants for student visas did not speak English well enough to follow the course for which they were applying. Yet they cannot be refused directly on this ground because the Immigration Rules do not specify language skills as a requirement for student visas. There are several recognised standards for English language skills, including TOEFL (Test of English as a Foreign Language) and IELTS (International English Language Testing System). There should be an English-language requirement for all student entry clearance applications except those relating to English-language courses. It should refer to a recognised standard such as TOEFL or IELTS, and be graded according to the level of course applied for.

NEW IND UNITS

251. In April 2004, following a top-to-bottom review of managed migration routes, the Government set up a Student Task Force with members from various parts of IND and DfES, to carry out visits to educational establishments. It checks whether an institution qualifies to be regarded as bona fide by looking to see if it will:

Maintain satisfactory records of enrolment and attendance of students;

Provide courses which involve a minimum of 15 hours organised daytime study per week;

Ensure a suitably qualified tutor is present during the hours of study to offer teaching and instruction to the students;

Offer courses leading to qualifications recognised by the appropriate accreditation bodies;

Employ suitably qualified staff to provide teaching, guidance and support to the students;

Provide adequate accommodation, facilities, staffing levels and equipment to support the numbers of students enrolled at the institution;

Comply with the latest IND guidance on notification of absent students.[269]

252. Initially the Student Task Force undertook about 1,200 visits to colleges about which there were suspicions, to establish whether or not they should remain on the register. About 25% of these colleges (amounting to about 2% of all colleges on the register) were judged to be non-genuine,[270] and all applications from students to study those institutions were refused.[271] In 2005 the student task force carried out 43 compliance visits; of the colleges visited, 16 were removed from the register.[272]

253. A month later, in May 2004, a new "Managed Migration Intelligence Unit" was established in the IND, focusing on abuse of the student route. It works with the Student Task Force.When we visited it in March 2006 we were told that it investigates only a tiny fraction of allegations made to it. Since September 2005 it had conducted only six operations, leading to the removal of four people, prosecution of two others, and the removal of some colleges from the DfES register.

254. The Managed Migration Intelligence Unit for student applications appears to be an ineffective response to a serious problem and working at an unsatisfactorily low level. We recommend that its resourcing, role and priorities be reviewed and amended so that it can tackle all the allegations made to it, in conjunction with other parts of IND and UKvisas intelligence services.

RESPONSIBILITY OF DFES

255. It is clear that the DfES register of training providers is inadequate at preventing abuse of student immigration to the UK. It is a voluntary register containing about 14,000 entries, of which 13,000 are automatically included and only about 1,000 needed to apply.[273] Although entry on the register is now mandatory for student applications, the IND appears to consider that a number of institutions on the register are not genuine.[274] It seems that information about bogus colleges does not find its way to the DfES - we were told in Islamabad that this sort of information is relayed to UKvisas rather than the DfES. In other cases colleges are on the register even if all they do is provide access to distance-learning courses offered by US institutions. The Chief Executive of UKCOSA (the Council for International Education), Dominic Scott, described the register as "unwieldy, unmanageable and not fit for purpose".[275]

256. The British Council is concerned that the register is not sufficient on its own and that compulsory accreditation of providers through a single national accreditation scheme such as its "English in Britain Accreditation Scheme" for language schools is desirable.[276] The IND is developing proposals for a new register of educational institutions that it would own and maintain. An improved register is welcome, but in our view this should be the responsibility of the education sector rather than the immigration system.

257. The Department for Education and Skills should recognise that it has the responsibility for ensuring that colleges attracting overseas students are genuine and offer an adequate standard of education. It should own and maintain an improved register of colleges on which both students and the immigration authorities can rely to provide a reliable and up-to-date guarantee of quality.

258. Under the new proposals in the Points Based System, students applying for a visa to study in the UK will be required to obtain a certificate of sponsorship from an approved educational establishment at which they have accepted a place. Leave would then be tied to the sponsoring institution, so a fresh in-country application would be needed to change institution. The institution would be required to notify IND if students do not attend a course.[277]

259. We welcome these measures, but there are some practical difficulties. UKCOSA, the council for international education, has suggested that many of the students who do not turn up at the college specified on their visa do so for perfectly valid reasons, for instance receiving multiple offers (especially for a postgraduate course which has no central applications system):

278

260. Under a Joint Notifications Project, providers are already being encouraged voluntarily to report non-enrolment or non-attendance of overseas students to IND. It has found that of the 400 students reported per month the majority have actually enrolled in alternative institutions. The remainder are simply "flagged up in the event that they are encountered for enforcement action".[279] Only 0.4% of students had entered the country but not enrolled and no UK address was known.[280]

261. We welcome the proposals under the Points Based System to tie student visas to particular institutions and to require institutions to notify the IND if students do not attend a course. Having accurate information about the extent of non-attendance would help both to demystify the debate around abuse of student visas and also to target efforts to tackle the problem. However, there must be a straightforward way for students to notify the IND if they change course, and the IND must actively follow up any information it receives on individual students with enforcement activity wherever appropriate.

262. On our visits abroad we heard of various initiatives which helped foreign students gain the benefits of a British education and brought fee income to British colleges and universities, without the student actually coming to the UK. These included: partnerships between British institutions and those overseas; greater use of distance learning; and even British universities and colleges setting up branches overseas. Boris Johnson MP, shadow Higher Education Minister, recently reported for the BBC that Nottingham University has set up a campus in Ningbo in China, and that Liverpool University and Harrow School are following suit.[281] "Building strategic partnerships and alliances" is one of the four strands of the Prime Minister's Initiative for International Education 2006-11.

263. The Government should put particular emphasis on encouraging the education sector to develop partnerships between British institutions and those overseas, including through greater use of distance learning, and on setting up branches of British institutions overseas. These initiatives benefit both the British education sector and foreign students.

Children

264. Many children come to the UK every year in various different categories: as visitors, students, dependants of temporary migrants, or for adoption or for settlement with parents or other relatives. However, there are no figures which show the total number of children who arrive in the UK. The Government should collect comprehensive statistics on the number of children who come to the UK in each category.

265. Immigration control may be the one point at which vulnerable children being brought into the country come into contact with any authority. Therefore the immigration authorities clearly have an important role to play in identifying children who might need protection. But the police and social services must be responsible for following up this information. We have looked at two particular areas where this may arise: trafficking and private fostering. We also received a great deal of evidence about the detention and removal of children.

TRAFFICKING

266. The process of identifying children who are actual or potential victims of trafficking is arguably the most urgent issue which agencies face in tackling trafficking. Until February 2006, children visiting the UK could apply for entry clearance at the same time as other close family members, be granted an entry clearance, and then travel to the UK either alone or in the company of an adult other than one of those who applied for a visa along with them. This allowed children to enter the UK in the company of an adult who was unrelated or indeed anyone with whom they had little connection.

267. In February 2006, the Immigration Rules were changed to provide some extra checks where children are applying to visit the UK.[282] There are two parts to the new Rules. Firstly applications for children travelling alone and applying for entry as visitors now have to show that there are arrangements in place for their arrival in the UK and also need to identify the parent or guardian normally responsible for them in the home country. Secondly, applications for children who are seeking entry as visitors accompanied by an adult, whether a family member or not, have to give details of the accompanying adult so that the nature of the journey and the relationship can be established. Children from countries whose nationals require a visa to enter the UK will have to produce, in order to be admitted, a visa or entry clearance that names the accompanying adult in an identifiable way, and will only be admitted to the UK on the same occasion as this adult.

268. Children coming to the UK for settlement or as dependants of temporary migrants already have to prove they are related as claimed and that they will be adequately acommodated.[283]

269. We welcome the new Immigration Rules relating to children visiting the UK, but are concerned they do not impose any duties on other authorities to follow up the information gathered. Except in the case of children travelling to the UK with their parents or legal guardians, we recommend that children should not be granted entry clearance for any purpose until the information on the arrangements in place for them in the UK has been checked by social services and/or the police.

270. Three years ago, the Metropolitan Police and Immigration Service, together with other government welfare agencies and the NSPCC, piloted an operation known as "Operation Paladin Child" to monitor the arrival of unaccompanied children at Heathrow Airport. Social services were asked to undertake assessments of any child who was a non-EU passport holder, under 18 years of age, who was travelling without a parent, legal guardian or older sibling, and not part of a recognised school, church or sporting group visit.

271. According to the report of that exercise, 1,738 children arrived alone from non-EU countries between August and November 2003, the majority of whom were travelling legitimately for education or holidays. A small number of children gave 'grave cause for concern' and police were subsequently unable to locate 12 of the children.[284]

272. The main difficulty with this exercise is that, although it provides an insight into the wide range of circumstances under which separated or unaccompanied children enter the UK, it tells us very little about trafficking. Neither child protection concerns nor disappearance are verification that trafficking has occurred. The exercise did not include those children who were accompanied on their arrival into the UK, for example by an 'uncle' or other adult. Nor were unaccompanied children travelling on EU passports included in the exercise (Victoria Climbié, whose tragic case we refer to (see paragraph 281) came in through France on an EU passport).

273. Debbie Ariyo of AFRUCA (Africans Unite Against Child Abuse) described some of the ways in which children are being brought into the country illegally, including using other children's European passports and having their details appended to other people's passports.[285]

274. The June 2004 report on Operation Paladin Child set out 26 recommendations.[286] The IND's children's taskforce is looking at a number of these recommendations,[287] but our interpretation of evidence submitted by the Home Office suggests that only seven of them have been fully implemented and a further nine partly implemented.[288] As a result of the report, several hundred Immigration Officers have been trained in interviewing children, which includes the skills needed in order to recognise signs of children at risk.[289] 22 ports now have a specially-trained team of immigration officers known as 'Minors Teams' who deal with all cases of unaccompanied children.[290] A joint working team of Immigration Service and Metropolitan Police staff has been established at Heathrow airport, but social services have not been as closely involved as was recommended. We do not have any information on the practical effects of these measures, for instance how many children are interviewed by specially trained officers and what proportion of child interviews does this entail; how many children are seen by Minors Teams and what proportion is this of all unaccompanied children; and what happens to these children afterwards.

275. The Government must ensure that there are clear methods for assessing the effectiveness of new measures on unaccompanied children, and that these assessments focus on the safety of the children concerned.

276. Oyewo Ekelemu, a social worker for Southwark Social Services who was involved in the assessments following referrals from Operation Paladin Child, felt it was a useful exercise, particularly in highlighting the lack of awareness that social workers and immigration officers have of each others' work. She suggested that it should be extended to all major ports in the UK and to work within the community too, and that it should also cover children arriving on EU passports.[291]

277. The Government is establishing teams of social workers at five ports and asylum screening units this summer, but these are focussing only on unaccompanied asylum-seeking children. They are intended to identify the needs of and develop plans to safeguard their welfare.[292] This suggests that the Government is prioritising asylum cases over non-asylum, even though by no means all children travelling to the UK who are at risk will claim asylum.

278. The Government must ensure that all the authorities concerned implement the recommendations of the report on Operation Paladin Child. In particular, social services must supply teams at ports to help identify and follow up all cases of concern, not just unaccompanied asylum-seeking children.

279. Our colleagues in the Joint Committee on Human Rights are currently conducting an inquiry into Human Trafficking which will no doubt lead to further recommendations relating to immigration control.[293]

PRIVATE FOSTERING

280. There is a growing concern that children and young people may be being brought into the UK under private fostering arrangements which are unsatisfactory or even exploitative, and that the children do not receive the services and protection to which they are entitled.[294] We were told, for instance, that there is a high level of private fostering in Southwark and that the authorities there are concerned that the foster parents are not providing an adequate level of guardianship and care, and that there was even a fear that some of these young people may turn to crime because of a lack of supervision.[295]

281. Many private fostering arrangements are of course completely legitimate, but the risks which can be involved in private fostering received widespread media coverage following the death of Victoria Climbié in 2000 (mentioned above in paragraph 272). Victoria was privately fostered by her great-aunt; Lord Laming's report into her death recommended that the Government review the law regarding registration of private foster carers.[296] This has resulted in calls for a registration and approval system for private foster carers.

282. Local authorities do not formally approve or register private foster carers. However, under the Children Act 1989 there is a scheme for "enhanced notification" of private fostering arrangements, and it is the duty of local authorities to satisfy themselves that the welfare of children who are, or will be, privately fostered within their area is being, or will be, satisfactorily safeguarded and promoted.[297] It is not clear that this is happening,[298] though there are some good examples such as Southwark Council which we were told is working with headteachers, social services and NCH to create an infrastructure for registration of private foster carers. Debbie Ariyo of AFRUCA (Africans Unite Against Child Abuse) told us that none of the 80 people they had asked at a recent series of consultative meetings on child trafficking had heard of the law on private fostering or the requirement to notify.[299] In their written evidence, the British Association for Adoption and Fostering (BAAF) was very critical of the current notification scheme for private fostering.[300] BAAF had actively campaigned for the inclusion of changes in relation to private fostering in the Children Act 2004 but was unsuccessful.

283. AFRUCA's view is that there is a clear need for those communities in the UK in which private fostering is widespread to look at what they can do themselves to protect these children, including challenging cultural assumptions if necessary. It has begun some work on this but suggests more needs to be done.[301]

284. The Government must consider introducing a registration and approval system for private foster carers. It should then explore whether this would allow tighter immigration controls to be placed on chidren entering the country without their own parents. The Government should also provide support for communities where private fostering is common to develop their own ways of protecting privately fostered children.

DETENTION AND REMOVAL

285. Many of our witnesses, including the Children's Commissioners for Scotland and for England, the Children's Society and Save the Children, were very concerned about children being held in immigration detention.[302] There were also particular concerns about the removal of children to unstable countries (we refer to paragraphs 418 to 420) to the concerns raised by Chris Mullin MP over the removal of families with young children who have been in this country for all or most of their lives to countries such as Angola or the Democratic Republic of Congo).

286. A recurrent theme was the UK's opt-out for immigration matters from the United Nations Convention on the Rights of the Child:

"The United Kingdom reserves the right to apply such legislation, in so far as it relates to the entry into, stay in and departure from the United Kingdom of those who do no have the right under the law of the United Kingdom to enter and remain in the United Kingdom, and to the acquisition and possession of citizenship, as it may deem necessary from time to time."

287. The Government's justification for this reservation was set out in an oral evidence session with the Joint Committee on Human Rights, when the then Minister for Children said:

303

288. The Joint Committee did not find this argument persuasive, but the Government maintained its position in its reply to the Joint Committee's report.[304] The Government repeated recently that it has no intention of withdrawing the reservation.[305]

289. Dr John Simmonds, of the British Association for Adoption and Fostering, argued that "the immigration service needs to be brought within the duties of Sections 10 and 11 (particularly 11) of the Children Act 2004, which places a duty on a wide range of public authorities to safeguard and promote the welfare of children". He considers that this would for instance place a responsibility on them to notify the local authority of a child in risky circumstances who is moving into their area, which would be better than depending on the particular training and priorities of individual IOs.[306]

290. We do not propose that the Government withdraw its reservation from the UN Convention on the Rights of the Child, but it should include the immigration authorities in the duty under the Children Act 2004 to safeguard and promote the welfare of children.

Spouses

291. Large numbers of people who are British or settled in the UK form relationships with and marry people who are not. Family settlement has always been an accepted aspect of immigration even when other kinds of immigration were not welcome (see paragraphs 35 to 36 above) and we repeat that the immigration authorities must provide a good service for such applicants.

292. However, the evidence provided to us suggests four particular problem areas in relation to spouses (some of which also apply to other partnerships): difficulty in gaining settlement for genuine spouses; forced marriages; abusive marriages; and sham marriages.

GENUINE MARRIAGE APPLICATIONS

293. There are many situations in which people who wish to stay in the UK on the basis of their marriage to a UK resident must return to their country of origin to apply for the necessary immigration status, rather than being able to make their application in the UK.

294. The Immigration Rules currently stipulate that a person who wishes to 'switch' to a spouse's visa cannot do so unless they have been granted at least six months' leave in another category.[307] This requirement is new - previously switching was possible regardless of the length of time for which the applicant had been allowed into the country.

295. The change was intended to deal with applications which were perceived to be fraudulent, and its main effect is to prevent those who are in the UK as visitors from being able to switch. The Government set out its reasons for changing the rules on spouses and partners in the White Paper Secure Borders, Safe Haven in February 2002.[308] Changes were necessary, the Government argued, because more marriages than had previously been recognised were proving not to be genuine, either because the partner settled here had been tricked or because there was an organised attempt to defraud. That three quarters of those granted leave to remain as spouses in 1999 had entered the UK in some other capacity was (in the Government's view) evidence of abuse of the system.[309] The White Paper suggested (at paragraph 7.13) that consideration would be given to compassionate circumstances where the person applying to remain as a spouse had been in the UK for some time. There is no guarantee that leave will be granted to those who decide to leave the country and apply for entry clearance to return under the Immigration Rules.[310]

296. People without limited leave to remain in the country, for instance failed asylum seekers, cannot switch to a spouse's visa under the Rules. However, a human rights claim may be made to stay in the UK; and family ties must be considered in removal cases.

297. The JCWI refers to difficulties caused by "IND intransigence over rules that foreign nationals who wish to remain in the UK because of partners but who first entered the UK on grounds other than marriage must first return home to obtain entry clearance for marriage even if they were previously in the UK legally and co-operated fully with immigration control". This is a particular problem where the country is not considered safe or where lengthy delays occur in the entry clearance process.[311]

298. In the recent case of Baiai, Mr Justice Silber criticised these rules: "I am concerned by the requirement for the applicants to have to leave the UK for a form of scrutiny which could just as easily take place in the UK without the disruption and expense caused by the need for the parties to have to go abroad, and to apply at which time the genuineness of the marriage would have to be scrutinised."[312]

299. The pressure group "Brides Without Borders" provided us with ample evidence of the difficulties and indeed hardships caused by these rules. For example the husband of one had to return to the Democratic Republic of Congo, where, we were told, his life was under threat, in order to submit an entry clearance request. We also heard that this journey followed a series of frustrating encounters with IND which could have led to the journey being in vain.[313] We heard a similar story about the dangers of an Iraqi Kurd having to return to Jordan.[314] Members of Brides without Borders also argued that it made no sense for an application to be processed by a different British Embassy abroad because the visa section in the applicant's country was closed, as was the case, for example in Iraq.[315] Early Day Motion 1285 of 2005-06, also criticising this policy, has been signed by 57 Members so far.

300. In view of the serious difficulties caused to some applicants by the requirement to return home to apply for permission as a spouse, we recommend that where the Foreign Office advises against all travel to a particular country, applications for leave as a spouse or unmarried partner from nationals of that country who are already living in the UK be decided in the UK with an interview.

FORCED MARRIAGE CASES

301. Although forced marriage (where a marriage is conducted either in the UK or abroad without the valid consent of one or both parties, and duress is a factor) is an issue in only a small number of immigration cases, it is a serious one nonetheless. Evidence put before us by one of the members of the Committee, Ann Cryer MP, sets out some of the issues it can raise: British citizens married abroad who want to prevent their partner from entering the UK; British citizens who wish their foreign-born spouse to be removed from the UK as a result of an incompatible or abusive marriage; British citizens wishing to prevent second wives from entering the country; non-British citizens who have been abandoned by their British spouse in the UK and non-British women seeking indefinite leave to remain under the Immigration Rules on victims of domestic violence.[316]

302. UKvisas identifies three situations where forced marriage may involve visa questions: reluctant sponsors (a married person forced against their will to support a settlement application for their spouse to gain entry to the UK), abandoned spouses (normally a woman who has been issued a visa to settle in the UK for two years and has returned to the country of origin with the spouse for a holiday, but once there the sponsor destroys the spouse's passport and returns to the UK alone) and vulnerable adults (sponsors with learning difficulties or mental health problems who may have been manipulated into supporting applications for entry clearance made by their spouses). During our visit to Islamabad, we were told that an estimated 75% of forced marriage cases they dealt with involved immigration as one of the objectives.

303. The majority of forced marriage cases known to the British authorities affect British nationals with a cultural background in South Asia, though forced marriage is recognised as not being a specifically Muslim issue. Islamabad handles the largest number of forced marriage cases of any UK visa post. As at 8 February 2006 Islamabad had 299 forced marriage cases outstanding, in the following categories:

304. A number of measures have been taken recently to deal with forced marriage cases.[317] In January 2005 the Home Office and FCO established a new joint Forced Marriage Unit which provides confidential support and information, publishes guidelines for professionals in the field and undertakes preventative outreach work amongst professionals and particular communities. The FCO website sets out what help is available for people at risk of forced marriage. Anyone who fears that they, or someone they know, may be forced into a marriage overseas are advised to contact the Forced Marriage Unit, on a confidential basis. On 16 March 2006 the Forced Marriage Unit launched a national publicity campaign involving a series of radio and press adverts, TV fillers and poster campaigns, aimed at increasing awareness of the issues surrounding forced marriage.

305. Five ECOs in Islamabad deal with the immigration side of forced marriage. In addition, we were told, a Consular Immigration Link Team has been established to work in a secure environment to protect vulnerable clients in partnership with a local NGO. The protection system in place includes a refuge in Islamabad (in cooperation with the local NGO) with guards outside. Victims are escorted to the airport and on arrival at Gatwick or Heathrow they are fast-tracked through passport controls as well as being met by an NGO or by the police. Arrangements can be made for them to stay in women's refuges.

306. The IND has specialist expertise in interviewing techniques for cases involving marriage. Forced marriages can be reported to the Managed Migration Intelligence Unit who can mark up files with this information so that it is taken into account in any future application for settlement, but it is not clear whether any positive action is taken to remove people from the UK as a result, partly because those who provide the information are not kept informed of the outcome see (paragraph 315 below).

307. Applications for spouses' visas or leave to remain can be refused on the basis of evidence from a reluctant sponsor, but we were told repeatedly that this is possible only if he or she is willing to make the objections public, which may be very difficult.[318] If an application is refused on the basis of anonymous information it is very hard to uphold on appeal.

308. Publicity is also a problem in appeal hearings. Appeals may be heard in private only in certain very limited circumstances: (a) in the interests of public order or national security; or (b) to protect the private life of a party or the interests of a minor.[319] The AIT should make more use of its power to hold appeals in private, and if need be its rules should be amended to make it clear that forced marriage cases might be appropriate for this procedure.

309. The Danish government has raised the age limit for sponsors and applicants in spouse applications to 24. A similar response has been suggested to us on the grounds that "Added maturity and education assists in empowering individuals to make decisions for themselves rather than simply satisfying the demands of family or community members".[320] The Government has already raised the age at which overseas spouses can join their British spouse from 16 to 18 years on those grounds.[321] Southall Black Sisters argue however that imposing more restrictive immigration controls did not achieve its purpose: "those who are determined to take children abroad for the purposes of marriage, are doing so undeterred".[322] In their view, "it is the relaxation of the immigration controls which will help to address problems of forced marriage, since marriage will not be seen as a route to gaining entry to the UK".[323]

310. It was suggested to us during our visit to India that it might be easier for fiancé(e)s or spouses in forced marriage cases to resist pressure if they were still in the UK at the time the entry clearance application is made. It might also reduce the number of cases in which consular staff have to rescue British citizens who are being held against their will. We recognise however that such a requirement might cause problems for applicants where there is no danger of forced marriage, and that it might not be a proportionate response to the problem.

311. Forced marriage cases are now handled more sensitively than before, but better arrangements should be made for refusing spouses' visas or settlement applications on the basis of confidential information from a reluctant sponsor. The Government should consider further steps which might protect young British people from forced marriages, including interviewing all visa applicants for marriages which have been arranged at short notice. The Government might also consider encouraging visa applications for arranged marriages to be submitted before the British spouse leaves the UK.

ABUSIVE MARRIAGES

312. For some time now the Government has recognised that foreign spouses who have been the victim of domestic violence are in a very vulnerable position. A 'domestic violence concession' has now been incorporated into the Immigration Rules, providing that people in the UK whose marriages ended during the two-year "probationary period"[324] can be granted Indefinite Leave to Remain if they can prove the marriage ended because of domestic violence.[325] However, while their applications under this rule are being considered, they remain subject to all the conditions on their leave, including the requirement that they have "no recourse to public funds". This means that they cannot therefore access emergency local authority accommodation or refuges for victims of domestic violence.

313. Southall Black Sisters welcomes the changes relating to domestic violence but is still concerned about the restrictive nature of the rule, the quality of decision-making within the Home Office on such applications and in particular the effects of the "no recourse to public funds" rule which are raised in about half of the 40 cases and 180 immigration enquiries on domestic violence it handles each year. They argue that "this continuing restriction defeats the very purpose for which the domestic violence rule was introduced".[326] They gave us evidence about problems caused by lack of recourse to public funds and provided a series of case studies to highlight the range of problems encountered by women who cannot access safe accommodation or welfare benefits in the UK to support themselves.[327]According to their survey, about 500 women in the UK subject to immigration control are affected by violence and abuse every year. They suggest that sponsors should pay the costs of providing benefits and housing to women who escape violence and abuse^..[328]

314. The Government should explore the feasibility of recovering the costs of providing support and safe accommodation for those victims of domestic violence who are subject to a public funds restriction.

315. As Ann Cryer MP's evidence suggested to us, some British citizens want their foreign-born spouse to leave the country if the marriage has been abusive.[329] If they contact the IND to tell them that they are no longer living together and therefore the foreign spouse has no continuing basis for being in the UK, or simply to ask if the violent spouse has left the country, they are told that they cannot be given any information because they are a "third party". The IND should re-examine its policy of not providing information to "third parties", with a view to providing information to sponsors (or their representatives) about the immigration status of people they have sponsored. This could provide welcome reassurance to those in fear of domestic violence. Once embarkation controls are in place, the IND will have much better information on whether or not a person has left the country.

SHAM MARRIAGES

316. Sham (or bogus) marriages are a threat to immigration control. Registrars have been concerned for many years about the number of marriages which they suspect are intended to circumvent immigration controls, and they have been frustrated about the lack of legal powers to enable them to prevent such marriages taking place. Changes to the registration process in 2001 apparently made little difference to the abuse of the system: Mark Rimmer, the Brent Registrar, estimates that between 2001 and February 2005 approximately 20% of all marriages in Brent were sham, equating to approximately 250 marriages a year (though this appears to be a particularly high rate).[330] He suggests that the incidence of sham marriages increased dramatically in late 2003 and early 2004 and that marriages between foreign nationals and EEA nationals, which are subject to EU free movement rules rather than UK immigration rules, were a particular problem.[331]

317. In response to registrars' concerns and media coverage of the issue, the Government established a "Bogus Marriage Task Force" in 2004 which included representatives from the Immigration Service, local government, the registration service and IND policy officials. This proposed a new scheme to govern marriages where one or both parties is/are subject to immigration control and does/do not have entry clearance as a spouse or fiancé(e). The new scheme was enacted in section 19 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 [332]and came into force on 1 February 2005. It has several aspects:

Notice to marry must be given by both persons attending together at one of 76 Designated Register Offices in England and Wales or any registry office in Scotland or Northern Ireland
The foreign national must either have entry clearance specifically for the purposes of marriage or apply to the Home Secretary for a Certificate of Approval, at a cost of £135, before being allowed to marry in a civil ceremony (Church of England ceremonies are exempt)
In order to qualify for a Certificate of Approval the applicant must have leave that was granted for more than six months and at least three months of that leave must be remaining at the time of making the application

318. The subsequent marriage does not automatically confer any immigration benefits: the person would still for instance have to apply in the normal way for leave to remain as a spouse.

319. When the new provisions came into force, Brent experienced a drop of 50% in the overall number of marriages taking place.[333] The numbers of reports from registrars of suspicious marriages dropped from 3,740 in 2004 to fewer than 200 between February 2005 and March 2006[334] and Home Office officials told us in March 2006 that from their perspective the new policy was working very well.[335]

320. There are however many objections to the new rules. The Joint Committee on Human Rights, reporting on the Bill which contained these provisions, considered that "there is a significant risk that the new procedures for marriage are incompatible with the right to marry because they introduce restrictions on that right which are disproportionate and which may impair the very essence of the right".[336] The Joint Council for the Welfare of Immigrants (JCWI) argued that the new requirements were in breach of the right to marry (Article 12 ECHR); a "disproportionate and ineffective response to the alleged problem of 'sham' marriages"; and potentially discriminatory on faith grounds. The JCWI told us they receive several phone calls and emails every week from couples affected by the new rules, and their evidence gives several (anonymised) examples.[337]

321. The JCWI recently intervened in a High Court challenge to the rules - the case of Baiai and others v Secretary of State for the Home Department[338] - which the Government lost. The case concerned three couples: an undocumented non-EEA national wishing to marry an EEA national legally resident in the UK; a couple both of whom had been granted exceptional leave to remain; and a pregnant failed asylum seeker wishing to marry an individual granted refugee status in the UK. All the couples were prevented from, or suffered delay in, marrying because of the new rules. Mr Justice Silber said that there was evidence of sham marriages in the UK and the Government was within it rights to try to combat them, but he ruled that section 19 contravened both ECHR Article 12 (right to marry) and Article 14 (right not to be discriminated against for reasons of, inter alia, religion or nationality). The JCWI summarise his ruling thus:

He agreed that there is no necessary or logical connection between the genuineness of a proposed marriage and the length of time which a person has leave to stay in the United Kingdom
It is difficult to see what basis there is for presuming that all marriages in religions other than the Church of England are sham marriages
It fails to take into account a number of factors which could be relevant to considering whether a proposed marriage is sham, such as evidence of a loving and lasting relationship
Under section 19 the only factors considered to be relevant in determining a potential sham marriage in the UK are immigration status and length of outstanding application or appeal
The regime does not allow those without the necessary leave to remain any opportunity to make their case for getting married without first leaving the UK.[339]

Mr Justice Silber said that the section 19 regime "affects the Article 12 rights of substantially very many more people than would be necessary to achieve the legislative purpose of preventing sham marriages."[340]

322. In a subsequent extended judgment issued in June 2006 the judge made a new distinction, saying that section 19 is incompatible with the ECHR as it applies to people who are in the UK lawfully but not those who are here unlawfully.

323. Permission has now been granted for the Home Office to appeal against this judgment on three issues: the compatibility of section 19 with the ECHR, the position of people unlawfully present in the UK and damages.

324. Mark Rimmer, the Brent Registrar, was very concerned at the implications of the High Court ruling:

341

325. Following the ruling the Home Office suspended decisions on those Certificate of Approval for Marriage (COA) applications which would normally fall for refusal under current guidelines. COA applications which meet the criteria have continued to be decided. According to the IND website, the Home Office is still considering the full implications of the judgment and may amend the guidelines.[342] However, it is likely to wait until the outcome of the appeal is known.

326. The Government is right to take measures against sham or bogus marriages. The Bogus Marriage Task Force should be reconvened urgently to produce proposals which are non-discriminatory. Meanwhile all marriage applications should be assessed by specialist teams of caseworkers.

327. Spouses of EEA citizens do not have to apply through the Immigration Rules to come to live in the UK. If the EEA citizen is exercising free movement rights, he or she has the right to be accompanied by family members regardless of their nationality: these family members' rights to enter the UK are therefore governed by European law. [343] There is a growing concern that this route is open to abuse even though European law does not give rights where there is evidence of a sham marriage. For instance, we were told during our visit to Accra that in Ghana there had been 51 applications as the spouse of an EEA national in January to March 2006, compared with 9 in the same period last year.[344] Mark Rimmer told us that most of the abuse registrars found concerned foreign nationals marrying EEA nationals rather than British nationals.[345] The Government must explore what measures it can put in place, without breaching European law, to prevent marriage to an EEA citizen being used as a fraudulent way of entering the UK.

254 Department for Education and Skills press notice, Prime Minister launches strategy to make UK leader in international education, 18 April 2006 Back

255 OECD, Education at a Glance 2005, Chart C3.2and Tables C3.1 and C3.7a Back

256 OECD, Education at a Glance 2005, Chart C3.2 and Table C3.1 Back

257 The Council for International Education Back

258 Q 640, 9 May 2006 Back

259 Ev 309-314, HC 775-III Back

260 Ev 315, HC 775-III Back

261 Q 492, 7 March 2006 Back

262 See also Q 648, 9 May 2006 Back

263 Q 493, 7 March 2006 Back

264 Q 637, 9 May 2006 Back

265 Ev 332-333, Ev 388, HC 775-III Back