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

The Committee consisted of the following Members:

Chair: †Mr Philip Hollobone 

† Bottomley, Sir Peter (Worthing West) (Con) 

Campbell, Mr Ronnie (Blyth Valley) (Lab) 

Cunningham, Mr Jim (Coventry South) (Lab) 

† Docherty, Thomas (Dunfermline and West Fife) (Lab) 

† Drax, Richard (South Dorset) (Con) 

† Esterson, Bill (Sefton Central) (Lab) 

† Evans, Graham (Weaver Vale) (Con) 

† Green, Damian (Minister for Immigration)  

† Hopkins, Kris (Keighley) (Con) 

† Hunter, Mark (Cheadle) (LD) 

† Huppert, Dr Julian (Cambridge) (LD) 

† Nokes, Caroline (Romsey and Southampton North) (Con) 

† Rutley, David (Macclesfield) (Con) 

† Shannon, Jim (Strangford) (DUP) 

Sheerman, Mr Barry (Huddersfield) (Lab/Co-op) 

† Smith, Angela (Penistone and Stocksbridge) (Lab) 

† Sutcliffe, Mr Gerry (Bradford South) (Lab) 

† Wharton, James (Stockton South) (Con) 

Lydia Menzies, Alison Groves, Committee Clerks

† attended the Committee

Fifth Delegated Legislation Committee 

Tuesday 29 March 2011  

[Mr Philip Hollobone in the Chair] 

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

10.30 am 

The Minister for Immigration (Damian Green):  I beg to move, 

That the Committee has considered the draft Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (Remedial) Order 2010. 

It is a pleasure to serve under your chairmanship, Mr Hollobone. 

The order was first laid before Parliament in July 2010. It will remove the requirement for persons subject to immigration control to obtain the Secretary of State’s written permission to marry in the UK. That requirement, which is commonly referred to as the certificate of approval scheme, was introduced through section 19(3) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. The requirement applies to those wanting to marry in England, Wales, Scotland and Northern Ireland, and it was extended to the Isle of Man by an Order in Council. 

Our reasons for removing the scheme are twofold. First, the domestic courts have declared that the scheme is incompatible with the European convention on human rights, and abolishing it will remove that incompatibility. Secondly, changes made following rulings from the domestic courts have weakened the scheme, so we do not consider it to be an effective method of dealing with sham marriages. The certificate of approval scheme was designed as a means of combating marriage abuse when the purpose of the marriage is to circumvent immigration control. The scheme does not apply to marriages that take place according to the rites of the Church of England or Church in Wales. 

Since the scheme was introduced in 2005, it has been subject to legal challenge, notably in the case of Baiai v. Secretary of State for the Home Department. The House of Lords ruled the scheme unlawful by making a declaration of incompatibility on the discrimination between civil and Anglican marriages. The scheme has been amended in numerous ways to comply with court rulings, including by allowing those who had been excluded from the original scheme to apply for permission to marry and removing the application fee. The current scheme now bears little relation to the original scheme. We consider that there is no merit in continuing to operate the scheme in such a weakened format that fails to tackle the problem of sham marriage. 

This remedial order will repeal the legislation that allows the certificate of approval scheme to operate. The intention is to bring the scheme to an end on 9 May, subject to final parliamentary approval. The Joint Committee on Human Rights has recommended that Parliament approves the order. 

Tackling sham marriage is a top priority for the Government. We are not anticipating a single measure to replace the certificate of approval scheme. Instead, we are pursuing a range of actions and measures that together will form an effective response to the problem. 

Civil registrars will continue to have a duty to report any suspicious marriage to the UK Border Agency under section 24 of the Immigration and Asylum Act 1999. Those reports give an indication of the size of the sham marriage problem. In 2004, there were 3,570 reports of suspected sham marriages. The reporting of suspicious marriages fell following the introduction of the certificate of approval scheme in 2005, and the number of reports stayed below 400 cases each year until 2009, when 561 reports were made. There were 934 reports of suspected sham marriages in 2010, which shows that the certificate of approval scheme was becoming less effective, as well as the success of our crackdown on sham marriage and the subsequent publicity. Such an increase was expected, and it reflects the work that we have undertaken with registrars to focus on tackling this abuse. 

Our first objective is to continue to build on our existing partnerships with civil registrars and the Anglican Church to combat abuse. Registrars and members of the clergy play a key role in identifying sham marriages and bringing them to our attention. We have undertaken considerable operational activity to tackle sham marriages in register offices. Those subject to immigration control are required by law to give notice to marry at a designated register office. That requirement remains and is not affected by the order. For marriages that do not require civil preliminaries, we are working closely with the Anglican Church to tackle the problem of marriage abuse. 

Our second objective is the disruption and deterrence of sham marriages by UKBA enforcement colleagues. Our immigration crime teams carry out targeted, intelligence-led operations against criminal groups that profit from organising sham marriages. Our main aim is to identify the organisers and destroy their criminal business. Offenders are often involved in other forms of criminality. 

We will continue to disrupt sham marriages, and to arrest facilitators, brides, grooms, witnesses and guests at ceremonies across the country once the scheme ends. We have carried out more than 130 operations in the past 10 months, and they have led to more than 150 arrests. Notable successes in this area include 10 arrests as a result of an operation with South Yorkshire police involving Pakistani, Czech and Slovak nationals. Those arrested are believed to be part of an international organised crime group conducting sham marriages with Pakistani grooms outside the UK. In the north-west, seven Czech nationals were sentenced to between 16 months and five years for their part in facilitating sham marriages, some of which were also bigamous. Two beneficiaries of that group also received custodial sentences. An operation in the midlands region has led to the conviction of 13 people with sentences totalling 20 years. 

We have also undertaken a number of successful operations in which churches have supplied information when they believe a marriage may be suspect. That included the conviction of an Anglican vicar, Alex Brown, and his two co-conspirators, who were found guilty of facilitating more than 300 sham marriages. 

Our third objective is to enforce the law by pursuing prosecutions and making casework decisions. The legal position is clear. Third country nationals wishing to enter the UK on the basis of a marriage to a British citizen or person settled here are subject to our immigration rules. The rules for those marrying European economic area nationals are set out in European law. In either case, those who enter into sham marriages are unable 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. If we uncover marriages that are not genuine, we will challenge them and prosecute when possible. Our ability to enforce the law here is unchanged by the abolition of the scheme. 

Our fourth objective is to create new and effective policies. We are closely scrutinising the whole marriage route and looking at measures to tighten it. We have already announced that we intend to consult on extending the probationary period before settlement for spouses beyond the current two years. An additional period would give us a longer time to test the genuineness of a relationship. We will be making further proposals affecting marriage as an immigration route later this year. I commend the order to the Committee. 

10.37 am 

Mr Gerry Sutcliffe (Bradford South) (Lab):  It is a great pleasure to serve under your chairmanship, Mr Hollobone. I give my best wishes to your football team, Kettering Town, which I had the pleasure of watching with you last year. 

I am grateful to the Minister for setting out the details about the certificate of approval scheme. He rightly pointed out that since the scheme was introduced in 2005 by the previous Labour Government, it has been ruled unlawful. The scheme was intended to deal with sham marriages. If we look at the size of the problem, we see that, during the life of the scheme, there were 120,000 applications for a certificate of approval, of which 5,463 were refused. We are talking about a significant problem, so there is a need to tackle sham marriages. 

I fully understand and agree with the work that is being done by registrars and the UK Border Agency, as the Minister outlined, but the reporting of sham marriages compared with the number of applications for a certificate of approval is disproportionate. Will the Minister talk about that and the ways in which can try to ensure that we are dealing with sham marriages? 

The work undertaken by UKBA and the registrars is vital, but the Minister also pointed out that many sham marriages are linked to wider criminal activities. Will he say something about the work that needs to be done between the police, the UKBA and other agencies in relation to the wider criminal context? 

We support the remedial order and believe that the Government are right to introduce it. There are some compensation issues relating to the order, so will the Minister address some of the points about repayments and their costs? As the Minister said, the Anglican Church was excluded from the certificate of approval scheme, and the work continues. 

We agree with the order in the context that we all want to tackle sham marriages. We felt that the certificate of approval was a way forward, but the scheme has been

ruled unlawful. Given all the problems that the various agencies will face due to cuts and reduced resources, is the Minister happy that dealing with sham marriages will be a priority because, as we know, they are a route for illegal immigration? 

10.40 am 

Sir Peter Bottomley (Worthing West) (Con):  The hon. Member for Bradford South has been helpful, and my hon. Friend the Minister might want to set out the last paragraph of the explanatory memorandum on the suspension of fees and the rebates so that it is at least on the record. 

Do registrars have an active duty to consider whether a sham marriage is about to take place, or do they just have the responsibility to report when it is blindingly obvious that there is a sham marriage? I pay tribute to the registrars, who are more active now than they were, and to the UK Border Agency, which has the unenviable task of trying to stop people from coming to join this country when they are not authorised to do so. It is one of the curiosities of the world that some of the anarchists in the streets who object to what we do in this country seem to forget that most people around the world who do not live in a democracy want to come to live here or in the United States. That is a tribute to us, in a rather back-handed way. 

There is one thing that I would quite like to know, although my hon. Friend might want to send me a letter about it. We know about the position in the Isle of Man, but I would be grateful to know what will happen with the Channel Islands. I know that they are outside the EU, but are they affected by the considerations that have led to our highest courts to reach a view on the incompatibility of the existing arrangements with the European convention? 

I pay tribute to my hon. Friend the Minister for the way that he is managing immigration problems. I agree with the decision that he and the Government have reached that these changes should be made by order rather than through primary legislation, which I know was considered. We would often expect primary legislation in such circumstances, but in this case the judgment was right that it was better not to delay and therefore to take the order through both Houses. 

10.41 am 

Jim Shannon (Strangford) (DUP):  I am not someone who watches “Coronation Street”, but as I am married to a lovely lady who is, I know that sham marriages are a topic of some interest at the moment. I welcome the tightening of the law because I am aware of some problems in my constituency due to sham marriages. The UK Border Agency has taken the lead on investigating those cases. With that in mind, I want to ask a couple of questions 

First, the explanatory memorandum suggests that there has been direct contact with the devolved Administrations, including the Northern Ireland Assembly. Will the Minister give us some indication of what feedback has come from the Northern Ireland Assembly about this matter? 

Secondly, as the hon. Member for Bradford South said, this is a time of reduced resources, both financial and in terms of staffing. I am aware that there has been

a reduction in the staffing of the UK Border Agency in Northern Ireland. In my part of the country, we have to look out for the smuggling of oil across the border—I am digressing slightly, Mr Hollobone, but I hope you will bear with me—and cigarette smuggling through airports and ports. Does the Minister feel that the UK Border Agency is in a position to enforce the new policy, which I welcome and look forward to becoming law? 

10.43 am 

Dr Julian Huppert (Cambridge) (LD):  It is going to be fairly complex and rather expensive to create the certificate of approval process, to start implementing it, to take it to the courts, to lose the case and to get rid of it. It is a shame that nobody actually foresaw that problem. As a member of the Joint Committee on Human Rights, I should point out that when the JCHR studied the original proposals it expressed concerns on exactly the grounds on which we are now reversing this measure. I suspect that we could work out how much time and effort would have been saved, had the JCHR been listened to. 

I have a question for the Minister. Given the JCHR’s comments about a range of other issues, will he take greater care to look at its recommendations and concerns to avoid anything like this happening again? 

10.44 am 

Kris Hopkins (Keighley) (Con):  On the doorstep for the last few years during elections, the big issue has been immigration, certainly in Keighley, where we unfortunately had Nick Griffin standing for election in 2005. It became a huge battle to give people confidence that the mainstream parties were taking immigration seriously. When legislation fails and it has to be taken off the statute book, it is important that we demonstrate why we are doing that. We need robust legislation, and we need to give the populace confidence that mainstream parties take the issue seriously and that people do not have to resort to nasty fascist organisations as an alternative. My predecessor did a huge amount of work on forced marriage. How does the order relate to that, and what legislation might we introduce to stop that disgraceful activity? 

10.45 am 

Damian Green:  I am grateful for not only the supportive comments of the hon. Member for Bradford South, but for the helpful interventions by colleagues on both sides. I shall first deal with the detailed questions. 

On the number of compensation claims and whether that number was disproportionate, the total number of refund applications was 1,215, of which 177 were granted. That figure is not insignificant. 

Various Members asked about reporting and about the actions of registrars. Civil registrars have a duty to report any suspicious marriage to the UK Border Agency under section 24 of the 1999 Act, but members of the clergy have no such statutory duty, which is why the UKBA and our immigration enforcement teams are working with the Church so that it can better spot possible sham marriages. The Church is deeply concerned and wishes to improve its performance, and I have met the bishop in charge of its activity in this area. 

Sir Peter Bottomley:  My inquiry was a stage further back than that. Does a registrar have a duty to make checks, or only to report if it becomes obvious that there might be a sham marriage? 

Damian Green:  It is a duty to report, and the checks are then made by trained UKBA enforcement officers. We do not wish to make the life of the registrar too onerous, but conscientious registrars want the checks to be made. One of the more encouraging things I have heard recently was from a registrar in London, where much of the activity inevitably is. She told me that she used regularly to report what she thought were attempts at sham marriages and that nothing much happened, but that she had seen a significant increase in the UKBA’s responsiveness. That will mean that more registrars will be encouraged to do their part of the business. 

Perhaps this is a good time to address the point about resources, made by the hon. Member for Bradford South and others. The UKBA, like every other part of the public sector, has significantly to reduce its expenditure and we are dealing with that, but we are hopefully enhancing our services in a range of ways, rather than just holding them. The first way is the much better use of technology, which makes a huge difference in other parts of the business. The UKBA is still in the relatively early stages of the computerisation of activities that other public and private sector bodies went through in the 1990s, so there is a lot of catching up to do there. 

The second way is targeting, which addresses the point about public confidence, which my hon. Friend the Member for Keighley rightly said was important. We want to show people, particularly the criminals involved, that we are literally on the case. That is why there has been so much very public disruption of sham marriages, and why we are not only arresting brides and grooms at the altar, but ensuring that TV cameras are there. It is not particularly aimed at people in this country, although the TV companies are always grateful for it. I want those pictures to be shown around the world, so that the criminal gangs who facilitate such activities know that the British Government are on to them, and that we will take effective action against them. That is one way in which the UKBA can become more effective. 

Jim Shannon:  Does the Minister feel that the penalties now in place on the back of the legislation are adequate to ensure that people do not go ahead with sham marriages, and that if they do, that the law will be substantial enough to deal with that? 

Damian Green:  In my introductory remarks I mentioned some of the sentences that have been imposed. In particular, the people who are facilitating this activity will end up in jail for a considerable period. Sufficient penalties are therefore available to enable us to make the enforcement effective. 

The hon. Member for Bradford South rightly said that a more joined-up approach is needed, which is one reason why, under the umbrella of the national crime agency, we will have a border command. That will enable us to have a single point where serious, organised immigration crime can be combated by a body that brings together the strengths of the police and of the border agency’s enforcement activities. 

Turning to some of the other points that were raised, the COA scheme does not apply to the Channel Islands. We do not currently intend to replace this scheme with a like-for-like scheme, as I mentioned in my introductory remarks, because we consider the other methods we are adopting to be more effective. 

The hon. Member for Strangford asked about direct contact with the devolved Administrations. We held a consultation with the offices in the devolved countries and regions of the United Kingdom, and there was widespread support from all parts of the UK. I was also asked about future policy on forced marriages. The case yesterday in the Supreme Court on the marriage visa age of 21 has granted the Government permission to appeal to the Supreme Court regarding the stay of the general effect of the Court of Appeal judgment. We will obviously consider the implications of that, as well as the whole issue of forced marriage, in the consultation, which, as I mentioned earlier, will we be undertaking later this year. 

My hon. Friend the Member for Cambridge asked whether we would listen to the Joint Committee on Human Rights in future. He is a member of several

Committees—not only the JCHR, but the Home Affairs Committee—that bombard with me with helpful advice. As he knows, I always take the suggestions of all parliamentary Committees seriously, even if I may not always agree. 

Finally, I want to echo the tribute paid by my hon. Friend the Member for Keighley to his predecessor, who did very good work on raising the consciousness of Parliament and the whole country regarding forced marriages. I am sure that both sides of the House wish to pay tribute to Ann Cryer for her work. 

As I have said, we will return to the broader problem of how to combat sham marriages during the course of this Parliament, and we will develop and implement our new strategy against it. The COA scheme has outlived not only its legality but its usefulness, so it is time it came to an end. I therefore hope that the Committee will approve the order, as recommended by the Joint Committee on Human Rights. 

Question put and agreed to.  

10.55 am 

Committee rose.