Appendix
Letter from Refugee Legal Centre re Government
amendments to the Asylum (Treatment of Claimants, etc.) Bill introduced
by Baroness Scotland on 9 June 2004
1. We write further to our previous letters to
your Committee concerning the Asylum (Treatment of Claimants,
etc.) Bill.
2. On 9 June 2004, the Government introduced
amendments to the Bill as it stood following the report stage
in the House of Lords. We believe that the Government amendments
raise serious human rights concerns, which we would seek to summarize
in this letter, and draw to the attention of your Committee. We
attach a copy of ILPA's briefing on the new provisions with which
we are in agreement.[58]
RESTRICTIONS ON
THE RIGHT
TO MARRY
OF THOSE
SUBJECT TO
IMMIGRATION CONTROL
3. The Government proposes to introduce after
existing Clause 14, a new Clause headed: "Person subject
to immigration control: procedure for marriage: England and Wales"
regulating marriages in England and Wales where a party to the
marriage is subject to immigration control.
4. Analogous Clauses follow in respect of marriages
in Scotland and Northern Ireland. There are also three supplemental
clauses dealing with the consequential amendments, and a further
clause conferring on the Secretary of State a power to make regulations
concerning the prescribed form, content and fee for applying for
permission to marry under the regime set out in the amendment.
5. The amendment applies where a party to a marriage
(not conducted in accordance with the rites of the Church of England
or with a license from an ecclesiastical authority) is subject
to immigration control. Its effect is broadly twofold:
1) to limit the registration districts to whose
registrars a notice of the marriage can be given under the Marriage
Acts to those specified by the Secretary of State;
2) to prevent a marriage from proceeding unless
the registrar is satisfied by specified evidence that the party
subject to immigration control:
has entry clearance for the purpose of the marriage;
or
has the written permission of the Secretary of State
to marry; or
falls within a class specified by regulations to
be made by the Secretary of State.
6. The second of these effects constitutes a
restriction on the right to marry, a right conferred on all within
the UK pursuant to Article 12 of the European Convention on Human
Rights. We are concerned that the operation of the restriction
on the right is discriminatory in that it applies only to non-nationals
subject to immigration control, and that on this account, it is
appropriate for us to draw the Amendment to your Committee's attention.
CONSULTATION ON
THE PROPOSED
RESTRICTIONS ON
THE RIGHT
TO MARRY
7. Whilst not directly material to the complaint
concerning the proposed Government amendment restricting the rights
of those subject to immigration control to marry, the Refugee
Legal Centre would draw to the Committee's attention that the
consultation exercise on proposals recently floated by the Government,
has in our view, been flawed.
8. The Home Office's press notice 202/2004 states
that the purpose of the amendment is to:
require non-EEA foreign nationals to demonstrate
they have entered the UK lawfully (and have permission to be here)
before giving notice of an intended marriage at a designated registry
office.
9. In the note 5 of the notes to editors contained
in the press release it is stated that:
The Government's plans to tackle abuse of the marriage
laws were announced on 22 April (HO press notice 157/2004).
10. Press notice 157/2004 is headed: "New
measures to tackle student and marriage immigration abuse".
The press notice confirms that:
The proposals for consultation on marriages are:
allowing only designated register offices to authorise
marriages involving foreign nationals, working closely with the
immigration service. This will enable a targeted, major new enforcement
effort against sham marriages;
changes to marriage laws to empower registrars to
refuse to conduct a marriage suspected to be carried out for the
purposes of illegal immigration while it is investigated.
11. The proposals contained in the Government
amendment go far beyond empowering "registrars to refuse
to conduct a marriage suspected to be carried out for the purposes
of illegal immigration while it is investigated", and have
not been the subject of consultation so far as the Refugee Legal
Centre is aware.
12. Copies of press releases 202/2004 and 157/2004
are appended to this letter.[59]
MAKING SUPPORT
FOR FAILED
ASYLUM SEEKERS
CONDITIONAL ON
THE FAILED
ASYLUM SEEKER
UNDERTAKING COMMUNITY
SERVICE
13. Failed asylum seekers who (a) cannot return
to their country of origin, for example because there is no safe
route, and (b) have no other means of avoiding destitution, are
currently able to apply to the Secretary of State to be supported
(i.e. fed and accommodated) pursuant to section 4 of the Immigration
and Asylum Act 1999 as amended by the Nationality Immigration
and Asylum Act 2002.
14. The Government proposes to introduce after
existing Clause 9, a new Clause headed: "Failed asylum seekers:
accommodation". The effect of the amendment would be to make
support of destitute failed asylum seekers who cannot be returned
to their country of origin conditional on the completion of some
form of community service. This would potentially violate their
rights under Article 3 (see R (Limbuela) v SSHD [2004] EWCA Civ
540)
15. The Refugee Legal Centre is concerned that
such community service, admirable though it may appear to many,
will for some be equivalent to forced servitude engaging Article
4 of the European Convention on Human Rights.
DISCRIMINATORY PROVISION
OF SOCIAL
HOUSING
16. We are also concerned about the discriminatory
application of section 193 of the Housing Act 1996, although due
to time constraints we are unable to provide a legal analysis
sufficient to do more than raise this as an issue which the Refugee
Legal Centre may seek to follow up with the Committee in due course,
if so advised.
17. If further representations would assist,
we would readily do our best to provide them to the Committee.
16 June 2004
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