1. We have reported on this Bill a number of times,
most recently in our Thirteenth Report of this Session in which
we reported on the human rights implications of the Bill in light
of the Government's response to our earlier reports, and reported
for the first time on the important new provisions introduced
on 4 May 2004 replacing the ouster clause.
2. On 9 June 2004 the Government tabled a number
of further new amendments to the Bill. The amendments were debated
in the House of Lords less than a week later, on 15 June 2004.
In our view, some of these amendments have obvious and serious
implications for human rights. We were given no advance notice
of the substance of these amendments, and neither we nor the House
of Lords were given any written explanation of the Government's
reasoning in relation to the compatibility of the proposed measures
with human rights.
3. We have made
it clear in a number of reports that we regard it as unacceptable
that amendments having significant implications for human rights
should be introduced at a late stage in a Bill's passage through
Parliament, without a clear explanation of the Government's view
of the human rights implications.
We find it particularly regrettable that we find ourselves once
again in the very same position so soon after having made clear
that such a practice undermines parliamentary scrutiny of legislation
for compatibility with human rights. Such scrutiny is crucial
to the democratic legitimacy of the Human Rights Act 1998. We
once again draw this to the attention of each House.
5. The provision of accommodation for failed asylum
seekers is made under s.4 of the Immigration and Asylum Act 1999
and has become known as "hard case support".
Section 4 of the 1999 Act provides a wide power to provide support
in the form of board and lodging for asylum seekers who are no
longer eligible for asylum support and do not qualify for social
security benefits, and would be destitute but for the provision
of such support. Most recipients of hard cases support under s.
4 are individuals whose claims for asylum have been rejected but
who are unable to return voluntarily, for example because there
is no viable route, because conditions in their country are currently
too dangerous, or because they are not fit to travel due to illness
or pregnancy. Accommodation is also provided under s. 4 to those
who have been granted permission to apply for judicial review
of the decision that they are not to be allowed to remain in the
6. The Government's purpose in making community work
a condition of entitlement to such support is said to be to require
those who are receiving such support to give something back to
the community in exchange, and so demonstrate to UK citizens and
taxpayers that they are not receiving "something for nothing".
This is said to be necessary to preserve social cohesion.
10. In addition to the feature of involuntariness
under menace of a penalty, the European Court of Human Rights
has also interpreted "forced or compulsory labour" under
Article 4(2) as characterised by an obligation which is unjust
or oppressive or an avoidable hardship.
The Court's approach is to have regard to all the circumstances
of the case in the light of the underlying objectives of Article
4 to determine whether an obligation to perform a service falls
within the prohibition of forced or compulsory labour.
11. The question therefore is whether the obligation
to perform community work as a condition of continued entitlement
to accommodation, as envisaged by the new section 4(6)(a) Immigration
and Asylum Act 1999, constitutes forced or compulsory labour within
the meaning of Article 4(2) ECHR, as interpreted by the European
Court of Human Rights, or is within the scope of any of the forms
of labour expressly excluded from that definition by Article 4(3)
ECHR, particularly the category of work or service which forms
part of normal civic obligations in Article 4(3)(d).
12. The consequence for a failed asylum seeker who
refuses to perform the community work required is the withdrawal
of the state support which, by definition, prevents them from
being destitute. In a recent case, the House of Lords rejected
the argument that asylum seekers were resident in a particular
area "of their own choice" because they had a choice
between accepting accommodation in that area and destitution.
It was held that it was wholly unrealistic to characterise this
as a choice by the asylum-seeker: the true position was that they
were given no choice about where to reside, but were offered accommodation
and the means to subsist in one place only.
The same would appear to apply to the proposed new provision.
The threat of destitution amounts to the "menace of a penalty",
and it would be difficult to argue that the work required to be
performed, on pain of refusal or withdrawal of support, was offered
13. It appears to us that the additional requirement
in Article 4(2), that the obligation to perform the work is unjust
or oppressive, is also likely to be satisfied, having regard to
all the circumstances in the light of the underlying objective
of Article 4. Two features in particular appear to us to be relevant
to this conclusion. First, failed asylum seekers are prohibited
from taking paid employment and it is therefore not through any
choice of theirs that they are unable to make a contribution to
the community as employees.
Second, it is surely discriminatory if failed asylum seekers would
be the only recipients of emergency social assistance who are
required to perform community work as a condition of that entitlement.
14. The obligation to perform community work as a
condition of entitlement to hard case support is likely to amount
to "forced or compulsory labour" unless it is within
the scope of any of the excluded forms of labour in Article 4(3)
ECHR. The Government asserts that requiring the performance of
such work by failed asylum seekers is compatible with Article
4 ECHR because what is required of them "would not go beyond
what we would regard as the individual's normal civic duty";
in other words, the Government argues that the obligation to do
community work is within the scope of Article 4(3)(d) ECHR.
15. We are not persuaded that requiring failed asylum
seekers to perform community service as a condition of receiving
support to avoid destitution can be said to form part of "normal
civic obligations". An obligation to perform community service
as a condition of receiving emergency social assistance is not
a "normal civic obligation" in the UK. On the contrary,
it appears to us to be without precedent or even analogy.
16. We conclude
that there is a significant risk that making the provision of
accommodation to failed asylum seekers conditional on their performance
of community work would be in breach of the prohibition of forced
or compulsory labour in Article 4(2) ECHR. We draw this to the
attention of each House.
20. The Government has not suggested a justification
for treating failed asylum seekers who cannot return to their
country differently from others who need state assistance to avoid
destitution. The Government's justification for the measure is
the need to tackle the "something for nothing culture",
and to show UK taxpayers that failed asylum seekers are not taking
something for nothing. But this reasoning is of general application
to any recipient of emergency state assistance; it does not explain
why the requirement to perform community service as a condition
of receiving state support is only to be applied to failed asylum
21. We conclude
that there is a significant risk that singling out failed asylum
seekers from the class of those in need of emergency social assistance
to prevent destitution, and exceptionally requiring them to perform
community work as a condition of entitlement to such assistance,
would be in breach of Article 14 ECHR in conjunction with Article
4(2) or Article 4(3)(d) ECHR, because it is a difference of treatment
on grounds of nationality/immigration status for which there is
no objective and reasonable justification. We draw this matter
to the attention of each House.
24. We conclude
that there is a significant risk that refusing or withdrawing
the provision of accommodation to or from a failed asylum seeker
who is unable to return to their country, on the ground that they
refuse to perform community work, would be in breach of Article
3 ECHR. We draw this matter to the attention of each House.
26. The purpose of this provision is to amend the
homelessness legislation following the decision of the House of
Lords in Al-Ameri v Royal Borough of Kensington and Chelsea
that residence in an area to which an asylum-seeker has been dispersed
is not capable of establishing a local connection with that area
because his residence there was not "of his own choice"
as required by the homelessness legislation to count as a local
housing authorities can refer an applicant who has no local connection
with its area to the local housing authority for the area with
which the applicant does have a local connection. Under the current
law, as interpreted by the House of Lords, where an asylum seeker
is given leave to remain in the UK and is eligible for homelessness
assistance, he cannot be required to apply to the local housing
authority for the area to which he was dispersed as an asylum-seeker,
because he did not reside in that area "of his own choice".
27. The Government's policy is to encourage and help
asylum seekers who are granted leave to remain to settle in their
dispersal area, to reduce pressure on social housing and other
local government services in areas such as London and the south-east.
The new clause is designed to give effect to this policy by deeming
asylum seekers to have a local connection with the area to which
they have been dispersed, so that the local housing authority
in that dispersal area has the responsibility to secure accommodation
28. The new clause has potential implications for
the right to respect for family life in Article 8 ECHR. A former
asylum-seeker who has been granted leave to remain may have been
dispersed to an area in the UK which is far removed from where
other members of his family reside. Once granted indefinite leave
to remain, he or she may wish to reside as close to their family
as possible. The positive obligation on the State under Article
8 to respect family life is likely to require the state to have
a system for allocating social housing which takes preferences
about proximity to family into account, as the current statutory
framework on homelessness does. A regime which treated such considerations
of family life as irrelevant, and required all former asylum-seekers
to be housed only in the areas to which they had been dispersed
without regard to such considerations would be likely to fall
foul of this requirement.
29. This is not how we understand the new clause
will operate, however. Under the relevant provision of the homelessness
legislation, a local connection with an area can be established
because of, among other things, "family associations".
Where a former asylum-seeker has local connections with two areas,
his dispersal area as a result of the new clause and the area
with which he has family associations, we can see nothing in clause
11 which requires him or her to apply to the housing authority
in his dispersal area.
30. On the understanding that a former asylum-seeker
remains free to apply for housing in the area of an authority
where he has family associations, we do not consider the local
connection deeming provision in new clause 11 is likely to give
rise to a significant risk of incompatibility with the right to
respect for family life in Article 8 ECHR.
33. The Refugee Convention contains a principle of
non-discrimination in relation to benefits provided to refugees.
Article 23 provides:
The Contracting States shall accord to refugees lawfully
staying in their territory the same treatment with respect to
public relief and assistance as is accorded to their nationals.
34. Article 14 ECHR in conjunction with Article 1
Protocol 1 similarly requires that there be no unjustified discrimination
against non-nationals in the provision of certain benefits.
35. We note that the Government has not provided
Parliament with the detailed evidence which demonstrates that
the value of the benefits in kind provided to asylum-seekers is
equivalent to the value of back-payments of benefits being abolished.
However, on the assumption that this evidence can be provided,
we do not consider there to be any significant risk of a breach
of Article 23 of the Refugee Convention or Article 14 ECHR in
conjunction with Article 1 Protocol 1.
37. The Government's purpose in introducing the marriage
provisions was explained by the Minister on recommittal.
The aim of the measures is to prevent the circumvention of immigration
controls by "sham marriages". A sham marriage is statutorily
defined as a marriage entered into by a non-EEA national for the
purpose of avoiding the effect of immigration control.
38. The Government states that the number of sham
marriages is increasing. Since 1 January 2001 registration officers
have been under a duty to report "suspicious marriages"
to the Secretary of State without delay, where they have reasonable
grounds for suspecting that the marriage will be a sham marriage.
In 2003, 2,700 such reports were received from registrars. The
total for 2004 is set to be much higher: by 15 June 2004, 2, 251
such reports had already been received. The Government relies
on this increase in the number of reports from registrars as an
indication that sham marriages are on the increase. It also states
that registrars are reporting increased levels of fraudulent documentation
being presented in support of notifications for marriage at UK
register offices. The Government also states that organised crime
is becoming increasingly involved in this abuse of the immigration
39. The general aim of the new measures is therefore
to strengthen the Government's ability to deal with this abuse
of immigration control and to protect the integrity of marriage
are specifically designed to tackle marriage abuse at the earliest
opportunity: that is, before a sham marriage has taken place rather
40. The new procedure introduces two new requirements
for persons subject to immigration control who wish to marry in
41. First, it requires that notice of a marriage
can only be given to the registrar of a registration district
specifically designated for this purpose by the Secretary of State
in regulations. The
purpose of restricting the number of districts at which notice
can be given of a marriage involving a person subject to immigration
control is to enable the Home Office's enforcement efforts against
marriage abuse to be more focused.
42. The second new requirement is that notice of
a marriage involving a person subject to immigration control is
not to be entered by the registrar into the marriage book unless
satisfied that the person subject to immigration control:
has an entry clearance granted
expressly for the purpose of enabling him to marry in the UK;
has the written permission of the Secretary of
State to marry in the UK; or
falls within a class specified for this purpose
in regulations made by the Secretary of State (such regulations
to be made by negative resolution procedure).
43. The registrar must be satisfied that one of these
conditions is satisfied by the provision of "specified evidence",
meaning such evidence as may be specified in guidance issued by
the Registrar General.
44. Clause 19(3) is therefore in effect a prohibition
on persons subject to immigration control marrying (other than
in a Church of England religious ceremony) without specific authorisation
to do so, either in the form of an entry clearance granted expressly
for that purpose, or written permission of the Secretary of State
(referred to in debate by the Minister as "a Home Office
certificate of approval"), or by falling within an exempt
class to be defined by the Secretary of State in regulations.
45. The Bill is silent about the criteria by which
the Secretary of State will decide whether to grant permission
to marry to non-EEA nationals who are already in the UK, or whether
to refuse it and require them to return to their country to reapply
for entry clearance. The Minister, on recommitment, stated that
they will be set out in detail in administrative guidance, and
indicated that permission would be refused where the individual
is in the UK unlawfully, or when they have leave to remain for
less than 6 months, and when it is reasonable for that person
to return to their country of origin and apply from there for
entry clearance in order to marry.
46. The legislation is also silent about the purpose
of the open-ended power in the Secretary of State to exempt certain
classes of individuals subject to immigration control from the
new requirements. There is no indication of the sort of differentiations
which might be made between different categories of people.
47. The new procedures apply to marriages which are
to be solemnised on the authority of certificates issued by a
registrar. They do
not therefore apply to religious marriages in the Church of England,
which do not require the involvement of a civil registrar.
They do, however, apply to other religious marriages, which require
the involvement of the registrar of marriages to be recognised,
and to non-religious registry office marriages.
51. National laws can therefore lay down rules governing
matters such as notice, publicity, and the formalities whereby
marriage is solemnised, as well as more substantive rules on matters
such as capacity and consent. National laws can also introduce
limitations and restrictions on the right to marry, including
prohibitions serving generally recognised considerations of public
interest, such as prohibitions on bigamous marriages and based
on degrees of consanguinity.
52. Any restrictions, limitations or prohibitions,
however, must be in pursuit of a legitimate aim and must be proportionate.
Proportionality includes the requirement that they must not restrict
or reduce the right in such a way or to such an extent that the
very essence of the right is impaired. "National law may
not otherwise deprive a person or category of persons of full
legal capacity of the right to marry. Nor may it substantially
interfere with their exercise of the right".
53. In a case brought against the UK concerning restrictions
on the right of prisoners to marry, the European Commission of
Human Rights held that there was no justification for the UK to
refuse to make arrangements to allow prisoners to marry, thereby
delaying the date at which they could marry until they were released
from detention. It
held that the fact that national law did not allow the applicant
to marry in prison and the fact that the Home Secretary would
not allow him temporary release so that he could marry elsewhere
amounted to an interference with the exercise of his right to
marry. The Commission stated that "the essence of the right
to marry is the formation of a legally binding association between
a man and a woman. It is for them to decide whether or not they
wish to enter such an association in circumstances where they
It held that the imposition of any substantial period of delay
in the exercise of this right must in general be seen as an injury
to its substance.
54. The question therefore is whether the restrictions
on the right to marry imposed on persons subject to immigration
control by new clauses 19-25 restrict or reduce the right in such
a way or to such an extent that the very essence of the right
is impaired, so as to be disproportionate to any legitimate aim
pursued and in breach of the right in Article 12.
55. We regret that, because of the very late stage
at which these amendments have been introduced, we do not have
the benefit of the Government's considered reasoning as to why
these provisions are compatible with Articles 12 and 14 ECHR.
All there is as a matter of public record is the assertion of
the Minister on recommittal that the new procedures are compatible
with those Convention rights.
56. Preventing the evasion of immigration control
by marriages which are not genuine marriages is a legitimate aim.
We also accept that there is evidence to suggest that such evasion
is taking place in the UK. We therefore accept that there is a
need for some regulation of the right to marry in order to achieve
the legitimate aim of preventing circumvention of immigration
control. The question is whether the measures which are being
proposed are proportionate to the achievement of that legitimate
57. Firm evidence of the scale of the problem to
be addressed by these measures has not so far been made available
by the Government. The increase in the number of reports of suspicious
marriages from registrars raises a number of more detailed questions
about the extent to which this increase demonstrates an increase
in the scale of abuse. How many refusals of leave to remain have
there been arising out of the 2,251 reports of suspicious marriages
from registrars? What explains the striking discrepancy between
the large number of such reports (2,251 so far this year) and
the relatively small number of criminal charges (37)? With what
offences were the 37 people charged? How many were convicted?
What are the "other intelligence sources" relied on
by the Government as demonstrating an increase in the number of
58. In the absence of this more detailed evidence,
it is very difficult to conduct any meaningful proportionality
scrutiny of the measures which are said to be necessitated by
the scale of marriage abuse. We hope that this evidence will be
provided to Parliament in the course of the debates on these measures.
59. Nevertheless we proceed to consider the compatibility
of the proposed measures with the right to marry in Article 12
on the assumption that the Government can demonstrate by evidence
that the number of sham marriages is increasing on the scale alleged.
60. The Government argues that "the right to
marry under Article 12 can be subject to the requirements of immigration
Court of Human Rights has established in Abdulaziz, Cabales
and Balkandali v UK, that although the right of a foreigner
to enter or remain in a country was not as such guaranteed by
the Convention, nevertheless immigration controls had to be exercised
consistently with Convention obligations.
Even the wide margin of appreciation which is accorded to states
under Article 12 is not without limit: restrictions on the right
to marry are still required to be proportionate to their legitimate
aim and must not take away the very essence of the right.
61. Three factors in particular persuade us that
there is a significant risk that the proposed restriction on the
right to marry may be disproportionate.
62. First, there appears to be a lack of clear rational
connection between the purpose of the measures, namely to prevent
sham marriages, and the criteria to be applied by the Secretary
of State when deciding whether to grant permission to marry under
clause 19(3)(b). Proportionality requires that there must be a
rational connection between the end which it is sought to achieve
by a particular measure (in this case, the prevention of "sham
marriages") and the measure itself, in the sense that the
measure must be logically related to the achievement of the aim.
63. The criteria which it has been suggested will
be applied by the Secretary of State in deciding whether or not
to approve of a marriage in an individual case will not be based
on an assessment of the genuineness of a marriage.
They will include whether the person is lawfully resident, whether
they have been granted over six months' leave or are a visitor,
and whether it is reasonable or unreasonable to expect them to
return home to apply for entry clearance from outside the UK.
The length of time for which a person has leave to remain in the
UK, for example, has nothing to do with the genuineness or otherwise
of any marriage into which he or she proposes to enter. This criterion
will effectively operate as a statutory presumption that a marriage
involving a person with less than six months leave to stay is
not a genuine marriage. But there is no necessary or logical connection
between the genuineness of a proposed marriage and the length
of time for which a person has leave to stay in the UK.
64. Second, the measures are drawn very widely; they
potentially affect more people than is necessary to achieve their
purpose of preventing sham marriages. The new procedures for marriage
apply to non-EEA nationals who require leave to enter or remain
"whether or not leave has been given".
It is not confined to those who are unlawfully in the UK (overstayers
and illegal entrants). The express permission of the Home Office
to marry will therefore be required by those with indefinite leave
to remain, refugees, work permit holders, overseas students and
ordinary visitors. In the absence of further justification for
this wide application, there is a significant risk that the measures
are disproportionate. In the debate on recommittal, the Minister
appeared to state that a Home Office certificate of approval would
be granted automatically to anyone who is entitled to remain in
the country for more than six months.
This would restrict the scope of the provisions considerably,
but we consider that it would be desirable for such a restriction
to be explicit on the face of the legislation, and not left to
ministerial assurances to Parliament about the way in which an
overbroad power will be exercised in practice by the Secretary
65. Third, there appears to us to be a significant
risk that the new procedures on marriage will prove excessively
burdensome to individuals who are within the scope of the new
requirements but who wish to enter into a genuine marriage. In
particular, the requirements that notice be given in only designated
registration districts, and that a fee of between £155 and
£250 be paid, are likely to operate in practice as considerable
disincentives to genuine marriages, given the nature of the class
of people affected.
66. In our view there is also a significant risk
that the imposition of what is in effect a prior permission requirement
on non-EEA nationals who wish to marry in the UK may impair the
very essence of the right to marry.
67. An individual who is refused permission to marry
by the Home Office will still have the opportunity to apply for
entry clearance to enter the UK for the purposes of marriage.
However, the effect of the provisions for such an individual will
be to impose a substantial period of delay in the exercise of
his or her right to marry and, as the European Commission of Human
Rights held in the case concerning prisoners' right to marry while
still in prison, the imposition of any substantial period of delay
in the exercise of this right must in general be seen as an injury
to its substance.
68. We conclude
that there is a significant risk that the requirement to obtain
permission to marry, as presently drawn, will be incompatible
with the right to marry because it introduces restrictions on
that right for a wide class of people which are disproportionate
to the legitimate aim of preventing sham marriages and which may
impair the very essence of the right.
70. The restrictions on the right to marry do not
therefore apply to marriages in the Church of England. They do,
however, apply to all other religious marriages, because any other
religious ceremony which takes place without any civil formalities
is not effective as a solemnisation of marriage.
They also apply to non-religious marriages in a registry office
between people who do not wish to go through a religious ceremony.
71. The marriage provisions are therefore discriminatory
on their face: by prescribing procedures for marriages which apply
to all religious marriages except those in the Church of England,
and to all non-religious marriages, they treat differently people
who are in an otherwise analogous position, on grounds of their
religion or belief. This gives rise to the possibility of a breach
of the right not to be discriminated against in the enjoyment
of Convention rights in Article 14 in conjunction with the right
to marry in Article 12 and the right to manifest one's religious
beliefs in Article 9.
72. To be compatible with Article 14 there must be
an objective and reasonable justification for such differential
treatment. The justification which has been offered by the Government
is that "there is no evidence of sham marriages in the Church
We are not persuaded that this is a sufficiently weighty justification
for such a clear difference of treatment on grounds of religion
or belief in relation to a matter which affects almost everybody
in one of the most fundamental aspects of their private lives.
73. We consider
that the exemption of Church of England marriages from the proposed
restrictions leads to a significant risk that the provisions will
discriminate on grounds of religion and belief without objective
and reasonable justification. We draw this to the attention of
78. The Minister introducing this amendment stated
that the Government intends to use this power "only in respect
of provisions in the Immigration Rules that are based on objective
reasoning is that the decision that an applicant for entry clearance
fails to meet such a specified requirement is a question of fact,
and there is little point in having a right of appeal in such
cases. It is envisaged that the power will be used to preclude
a right of appeal against refusals based on a failure to meet
new objective requirements which might be introduced into the
Immigration Rules. The only specific example provided of a possible
use of the power was in relation to "bogus colleges".
The Immigration Rules might be amended to make it a specified
requirement for entry clearance as a student that the applicant
be enrolled at an institution which is included in a register
of bone fide colleges. The power might then be used to
preclude any appeal against a refusal of entry clearance on the
ground that the applicant was not enrolled at a registered college.
79. The removal of rights of appeal against entry
clearance decisions raises issues of compatibility with the right
to an effective remedy in respect of Convention violations under
Article 13 ECHR and the right not to be discriminated against
under Article 14 ECHR in conjunction with Article 13 and Article
6(1) (right of access to court).
80. Not providing a right of appeal in cases where
the basis of the refusal is the failure to meet a requirement
which turns on an objectively ascertainable fact is likely to
be unobjectionable in human rights terms.
However, the breadth of the power conferred on the Secretary of
State by new clause 29, without specifying on the face of the
legislation the types of case in which the power can be used,
is a matter of concern. Parliament is being asked to authorise
in advance a very wide power which is capable of being exercised
in a way which may impede access to an effective remedy or unjustifiably
discriminate between different classes of applicant for entry
81. Unless the
Bill expressly states the specific cases in which the power to
remove rights of appeal can be exercised, we are unable to reassure
Parliament that this is a power which is compatible with human
rights. We draw this matter to the attention of each House.