19. Supplementary memorandum
submitted by the Joint Council for the Welfare of Immigrants
JCWI BRIEFING TO THE HOME AFFAIRS SELECT
COMMITTEE ON EFFECTS OF THE NEW MARRIAGE RULES (SECTION NINETEEN—AITOC
(ASYLUM AND IMMIGRATION (TREATMENT OF CLAIMANTS) ACT) 2004
The JCWI (Joint Council for the Welfare of Immigrants)
is an independent, voluntary organisation, working in the field
of immigration, asylum and nationality law and policy. Established
in 1967, JCWI actively lobbies and campaigns for changes in law
and practice and its mission is to eliminate discrimination in
this sphere of policy. As well as campaigning, JCWI provides individual
and specialist advice by telephone, carries out legally aided
casework and where appropriate is involved in strategic legal
challenges.
We have intervened, and are awaiting a judgement
in a High Court challenge to the new marriage rules introduced
by Section 19 of AITOC. Under Section 19 of AITOC, any party to
an intended marriage who is a non-EEA foreign national and who
cannot show evidence of entry clearance for the purposes of marriage
to a specially designated marriage registrar must apply for a
Certificate of Approval from the Home Secretary before being allowed
to marry in a legally recognised civil ceremony. 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 remaining at the time of making the application.
Any marriage involving a foreign national from outside the EU
who does not fulfil these conditions will not normally be granted
permission for a legally recognised civil ceremony. Section 19
is in addition to the pre-existing immigration rules on entry
to, and stay in, the United Kingdom on the basis of marriage.
JCWI OPPOSES SECTION
19 FOR THE
FOLLOWING REASONS:
1. It is a fundamental breach of Article 12 of
the European Convention on Human Rights: the right of men and
women to marry in a legal ceremony and have their marriage and
family recognised according to national law.
2. It is a disproportionate and ineffective response
to the alleged problem of "sham" marriages, given that
while occasionally high-profile court cases feature in the press,
evidence of the scale of such marriages has never been produced;
that marriage in a legally recognised ceremony in the UK does
not in any case confer automatic immigration benefit ie leave
to remain in the UK; and that therefore preventing participation
in a legal marriage ceremony in the UK does not prevent "sham
marriages" being entered into for immigration benefit.
3. The rules are potentially discriminatory on
faith grounds and therefore contrary to Article 14 (ECHR) Prohibition
on Discrimination given that persons marrying in the Church of
England are exempted from the requirement to present documentation
showing leave to remain as a condition of marrying.
4. Given that the desire to have one's marriage
legally and formally recognised by British society is an explicit
indication of an individual's desire to integrate, preventing
an individual from realising this wish would appear to conflict
with Government objectives on social cohesion, and integration.
5. JCWI receives several phone calls and e-mails
each week from couples, who suffer stress and inconvenience because
of the complexity, bureaucracy and delays occasioned by the rules;
couples involving a British national who feels outraged that s/he
is being discriminated against for taking a foreign partner; or
couples who have been completely frustrated in their wish to marry
in the UK. Couples invariably remain determined to marry even
when they are reminded that it will obtain no immigration benefits
for any of the parties. This for us indicates that they are genuine.
We do not have permission from other legal representatives
to go into the details of the couples involved in the three cases
which have been heard as part of the High Court challenge to the
new marriage rules in which we are intervening. However we are
able to say that they involve an undocumented non-EEA national
wishing to marry an EEA national legally resident in the UK; two
asylum seekers granted exceptional leave to remain, but originally
denied a Certificate of Approval; and a failed asylum seeker wishing
to marry an individual granted refugee status in the UK. It is
relevant that the above cases involve Muslims whose religious
ceremony is not legally recognised and for whom marrying in the
Church of England was not an option. A judgement is expected in
April.
A number of couples have contacted us directly and
we quote from some of their correspondence which we have anonymised
by removing names of people and countries. At least from the point
of view of failed asylum seekers and their partners it is unrealistic
to expect that they will return to their country of origin to
obtain entry clearance for marriage purposes. R, who contacted
us, is a British national in a relationship with a G, a failed
asylum seeker, the father of her new-born baby. She has two sons
by a previous partner who insists that they are brought up in
a particular religion. She is the owner of the property in which
she lives with her current partner and the sole breadwinner. The
couple had been unable to marry prior to the introduction of the
new marriage rules because R was awaiting a divorce from her previous
partner. R was extremely concerned at being unable to obtain a
Certificate of Approval to marry in the UK
"As you are aware—If G returns to X the
authorities will find some excuse to put him in prison . . .
moreover, if he does manage to stay out of prison and has the
opportunity to try for the paperwork, he will be blocked at every
opportunity to get the necessary paperwork to marry me. We know
from experience that the authorities in X do not take kindly to
failed asylum cases."
"If I believed G might be safe, I would be willing
to go to X with him, but at what price . . . If I go to X to
be with him, I will lose my two older children because my ex-husband
will not allow them to leave the UK—my house, job and so
on will be lost—once I get there unless I have the governments
permission to work in X, I will have to stay as a tourist . .
. under this visa, I can only stay in X for two months at a time
and I cannot afford to keep leaving and re-entering the country."
In the end R, after some weeks of negotiation with
her local Church of England priest, managed to marry G under the
Church of England exemption on condition that she consented to
baptism of her child who is accordingly, nominally at least, of
a different religion to her other two children. However, for some
weeks—the latter weeks of her pregnancy—R clearly
believed that legal recognition of her relationship with G and
family life was in jeopardy and this caused her great distress
in addition to her expectations that G might be deported shortly.
It should also be remembered, that even where couples are prepared
to be married in the Church of England, marriage there is at the
discretion of the local priest and the option is not open to couples
of other religions. It should be also noted that while the Home
Office has stated to us that pregnancy is a compassionate factor
which is taken into account when deciding whether to grant applications
for certificates of approval, this by no means applies in all
cases and would not have applied in R's case, because as the Immigration
and Nationality Directorate has noted: "Where pregnancy has
been given as a compassionate reason, but it is not the pregnant
party who is required to travel abroad to obtain entry clearance,
or there is sufficient time before the due date to travel and
return having obtained the correct entry clearance, the application
will be refused."
Even where there would appear to be compelling "compassionate"
grounds, such as a child produced by the union, permission to
marry is not automatically granted as the excerpt from correspondence
below demonstrates. As this excerpt also shows, individuals whose
record of co-operating with immigration control in the UK is faultless
do not understand why they are denied the opportunity to marry
here.
"I have Refugee status. Last year we applied
to Home Office for Marriage approval certificate. My fiancée
was a long-term student then (2.5 years student visa which expired
two months and one week after we submitted application). However
because the HO requirement is three months till visa expires—that
application was refused. We send another letter asking them to
reconsider because of compassionate and compelling grounds—we
have stateless undocumented child born last year who can not leave
UK if the mother would be applying for clearance from abroad.
As a recognised refugee I can not go to the country of origin
of my fiancée (we are both from X) and marry her there.
It is five months now since we submitted the second application—and
all we hear from the Home Office—"it is under consideration".
We believe our case is amongst the most obvious to point at the
inadequacies of Marriage Approval legislation. It was created
against sham marriages but is seemingly used as a tool against
long established families with children and without any problematic
immigration background."
In the excerpt below a UK national relates how in
November 2005 IND despite the arrival of a newborn daughter—born
October 2005—that his wife, a foreign national, return to
her home country to obtain entry clearance first.
"I wonder if you could either assist or advise
with regard to the refused application for Marriage Approval of
myself to Miss RH. I have outlined below the relevant timescales
as we best remember them.
— Miss RH, on a working holiday visa, and
I meet—February 2004.
— Received application forms for the certificate
for approval middle to end of April 2005.
— Sent forms back beginning of September,
they were returned as the quoted bank details did not match the
address on the form.
— Our daughter was born—October 2005
— I returned the application forms 10 October
with a letter explaining our movements since the end of April
and a copy of our daughter's birth certificate.
— Acknowledgement received 12 October.
— Refusal letter received 24 November.
"To fill in the gap between receiving the forms
and actually sending them off, I was working as a relief catering
manager for a major chain from April to the end of August 2005. During
this time I managed three different premises throughout the UK,
with each premises being our base; we were not in any place long
enough for the proposed 13-week application period."
While the new marriage rules are responsible for
some of this distress, their effects must be seen in tandem with
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.
For example, last year JCWI was informed of the case
of a former asylum applicant, a man who had fled to the UK as
a minor and obtained leave to remain in the UK in the care of
a local family until his 18th birthday. As an adult he married
a British woman before the introduction of the new marriage rules.
Later his asylum claim was dismissed. In order to apply for entry
clearance to the UK he was compelled to return to his home country,
(since deemed safe for that country's nationals to return to though
still unstable) even though the British Embassy in his home country
turned out to be closed to visa applicants. He then flew to another
country which he considered less dangerous and where he thought
he could access a British Embassy. Following refusal of entry
by the authorities there, he travelled to a third country where
in order to arrange his visa he lived for several weeks at some
personal expense in a hotel room even though he had no connection
with this country, but every connection with the UK given his
marriage. Eventually, he was granted leave to enter and a period
of stay the UK but his local newspaper, who have followed his
fortunes and championed his welfare since he arrived in the UK
as a youth, was so astonished that he should have to travel so
extensively to obtain entry clearance that they contacted JCWI
for comment. The story is illustrative of the lack of flexibility
shown to an individual with a UK partner. This individual is well-known
in his local area. If the authorities were concerned that his
marriage might not be genuine grounds for giving him leave to
remain why did they not impose the two-year probation period which
is a normal condition of entry clearance for marriage rather than
encouraging him to return to an unstable country—where the
embassy was not open in any case—to apply for entry clearance?
Even where returning to country of origin to obtain
entry clearance and leave for the purposes of marriage may seem
reasonable from the point of view of country safety, there are
other quite rational reasons why applicants may feel unhappy about
having to do so. It is well-known that the entry clearance procedure
that many couples face is often a long drawn out one. Applicants
for spouse entry clearance who have a previous "immigration
history", often have their applications put on hold while
Entry Clearance Officers refer the matter to the Home Office.
Such cases are not prioritised by the Home Office and it is at
this stage where lengthy delays occur in the process. The situation
is exacerbated by longer than average waiting times to process
applications in busy posts such as New Delhi, Bombay, Dhaka or
Islamabad where the target time for queues can be nine months
(see Commons Hansard Written Answers for 16 February 2006
column 2363).
The rigidity of the immigration rules which demand
the return of those who have less than six months leave to remain
therefore causes lengthy separation where the UK spouse remains
in the UK to work or look after family. The Home Office will only
exercise discretion in limited circumstances where the marriage
itself is over two-years-old and no enforcement action has taken
place (Policy DP 3/96). The alternative is to seek a High Court
ruling that the Home Office's actions are in breach of Article
8, which is a restricted right, and this legal option simply may
not be readily available to many affected.
There may also be good personal reasons why it is
preferable why an applicant should not have to return to home
country as demonstrated by the excerpt below in which a British
national writes that he wishes to be married to a woman with whom
he studied at college and who as the daughter of foreign nationals
previously working legally in the UK, (since returned home) had
been here since 1987:
"We met in our first year at university back
in 2000 and have lived together since July 2001. We have experienced
difficulties with her case as her parents who oppose our marriage
will not allow it to take place. My fiancée's father is
a very powerful man in X and we do not wish for L to go back there
because she has no means of supporting herself financially while
there and would be completely dependent upon her father. We are
uncertain, and very apprehensive, about what his reaction might
be in this situation.
"We got engaged in November of 2004, but thought
it better for L to finish her studies before we wed, unaware of
the impending change in legislation. We were also holding out
some hope that my partner's family would approve of our union;
however this has not been the case. We are not allowed to get
married as her Student Visa has expired and she has completed
her course at University. I currently work, having graduated from
University in 2003, but am not allowed to marry due to the recent
change in the law. I do see this as an infringement of my human
rights. Though I would normally be happy to go to her country,
the current situation with my fiancée's family means that
it is too problematic to do so at the moment for her and me.
"We recently received notice that the HO has
rejected her application for a student visa and are now looking
to deport her back to the country. We are looking to apply for
leave for her to remain under the long term residency concession
because she has lived in the country since 1987.This situation
is rapidly turning into a nightmare for us. It would be good to
try and fight this legislation that denies us the right to be
married. I and my fiancé are in our twenties, we both studied
at the same college and we both wish to be married and have planned
to do so for a long time."
L has since returned home to visit her family in
her home country to try to resolve the issue of her marriage with
them and to apply for a fiancé visa. However, as her British
fiancé feared, her parents remain opposed to the marriage—primarily
on religious grounds—and he is concerned that they will
now create difficulties for her in returning to the UK.
Others who have contacted JCWI are simply appalled
by the inconvenience of the new rules. As the following excerpts
illustrate, they are willing to consider leaving the UK to marry
but do not understand why they should have to do so.
"I've just read with interest your articles
on the new 2005 immigration laws that affect my rights to get
married, the reason for my interest being the fact that my fiancée
from X and I have been trying to wade through the new and complex
rules to enable us to wed and her to join me in the UK.
"There seems to be so many overlapping laws,
that even assuming permission to marry is granted there is such
a short window for all the notices to be given, a vacant date
found at the small number of Registry offices and before the visa
runs out and then in time to apply for Leave to Remain that I
would be surprised if anyone has managed it!
"At the moment it looks like the easiest way
for us to wed is in X where they have no such stifling laws and
then apply for a visa once that is done. Unfortunately this is
far cry from the UK wedding we had in mind. To this end I would
like to add my voice to your campaign against this ridiculous
and poorly thought through legislation."
"Having read the article on the BBC website:
Asylum laws `cut wedding numbers' I would like to say that contrary
to what Mr Mark Rimmer says, the new regulations introduced this
year have made it completely impossible for genuine couples like
us to get married in the UK. I am an EU citizen and I have been
working in the UK for over five years. My fiancée is from
the US but we cannot marry in the UK because of a catch-22-like
situation: in order to apply for a marriage licence we need to
show we have been living together for at least six months. However,
six months is the maximum amount of time she is allowed in the
country as a tourist. Since I am not a British citizen, she was
told she would be unable to apply for a UK fiancée visa.
As a result, our only option is to get married abroad.
"Good luck with your campaign to change these
idiotic rules."
Others believe the rules are demeaning as well as
inconvenient like this young Caribbean professional who is known
to JCWI and was interviewed by the BBC in February 2005:
"I came to the UK about three years ago as a
student. When I later got a job here my employer applied for a
work permit for me, which came through last year. My fiancée
and I met while I was at university. We've been living together
now for three years and plan to get married in July at a Catholic
church. When my partner and I contacted the priest we were told
we should go to the register office to give notice to marry about
four months in advance of the wedding day. But after I heard about
the rule changes I contacted the local office and was told I'd
come under the new scheme.
"It's so demeaning having to apply for permission
from the Home Secretary to get married. It's de-humanising, it's
like saying that I am a second-class citizen.
"The difficulty for us specifically is firstly
that it's an added cost, marriages are already expensive, we're
looking at around £12,000 for our wedding and now we have
to pay another £135 for a certificate of approval. And it
is only valid for three months, so if I apply for it too early
it will expire before I get married. Also we're planning to go
abroad on honeymoon so I need to get a visa for that. So our concern
is when my passport goes off to the Home Office how long will
it take before I get it back, everything is in jeopardy if they
don't return it on time. I pay my taxes like everybody else and
I don't have access to many benefits that British people may have
because of my status."
This individual is of the view that the fees for
a Certificate of Approval from the Home Secretary are a money-making
machine for the Government. Figures seen by JCWI suggest that
applications for certificate of approval are generating £1.6
million a year despite the fact that, albeit in a minority of
cases, IND is taking up to three months to process them. In the
meantime there is no evidence that so-called "sham marriages"
are being prevented by IND's inflexible attitude, law-abiding
couples in apparently genuine and subsisting relationships like
those quoted here are experiencing real distress and inconvenience
and the intransigence of IND is highly damaging to public perception,
both among foreign and UK nationals, of its activity.
Rhian Beyon
Communications Officer
27 February 2006
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