Joint Committee On Human Rights Seventeenth Report

Appendices

Appendix 1: Asylum & Immigration (Treatment of Claimants, etc.) Bill

1a. Letter from Lord Filkin, Parliamentary Under Secretary of State, Department for Constitutional Affairs, to the Chair

I am grateful to the Committee for its report on clause 26 (formerly clause 14) of the Asylum and Immigration (Treatment of Claimants, etc.) Bill. In particular, I am glad that the Committee recognises (in paragraph 1.31) the legitimacy of our aims to increase speed and efficiency, and decrease the potential for abuse in the asylum and immigration appeals system. I would like to respond to some specific points made by the Committee.

The implication of the tone of the Committee's report on clause 26, particularly from paragraph 1.62 onwards, is that the proposed single tier Tribunal and reduction of access to the higher courts will allow violations of Convention rights to go unchallenged and breaches the positive obligations to ensure effective protection of those rights. I believe that this is a misrepresentation. In illustration of this, let me set out again the full range of stages at which the applicant may present their case and any human rights grounds on which they are relying.

Cases will be initially considered by caseworkers in the Immigration and Nationality Directorate (IND) of the Home Office. An applicant will be expected to present all the grounds, including any potential breaches of their human rights. The case will then be considered by the caseworker, who will be experienced at handling such cases, and who will provide written reasons for their case decision. If the applicant has been refused, they may exercise a right of appeal against that decision to the Asylum and Immigration Tribunal (AlT). They or their representative will have the opportunity to present their case to an Immigration Judge or panel of judges, who will consider grounds of both fact and law including Convention rights before reaching a reasoned determination.

As the committee notes at paragraph 1.38, Article 13, of which the Human Rights Act 1998 is the manifestation in English law, requires the provision of an effective remedy before a national authority to protect Convention rights. The Asylum and Immigration Tribunal provides that remedy. What article 13 does not require is the provision of multiple tiers of appeal: a single independent judicial hearing will suffice so long as it is independent and effective.

However, we have listened to the concerns that judicial decisions of the Tribunal may provoke fresh breaches of Convention rights, or fail to correct such breaches, in that way undermining the protection of Convention rights satisfactorily. The Government has revised its proposals to introduce higher court oversight specifically to address those concerns.

Higher court review, like judicial review, focuses solely on "error of law", a term which embrace breaches of Convention rights. Also, like judicial review, when such errors are identified, the result is that cases are remitted to the Tribunal for them to reconsider in the light of the higher court's analysis of the error. The review and reconsideration provisions in this way provide the most appropriate response to the concerns urged upon the Government by Parliament to maintain higher court oversight. This is not intended to constitute a full, fresh appeal; we have not been urged to retain the two tier system. The restrictions we have placed on the process, to which I shall refer shortly, reflect this objective.

The higher court's review decision under 103A is unappealable. Having addressed the desire for higher court oversight, the Government is clear that this is the point at which the line has to be drawn. Anxious scrutiny will always remain no matter how many levels of appeal or review are built into any judicial or executive system, but the Government does not accept that its revised proposals will lead either to violations of Convention rights or fail to provide the necessary procedural safeguards.

Leaving aside the assumption that it is necessary to provide justification because we are interfering with Convention rights, let me turn to the Committee's challenges to our evidential case that the system is currently being exploited by applicants.

1.70 First, the figure of 3-4% of adjudicator determinations being eventually "overturned" is not an accurate reflection of the error rate at adjudicator level, because it leaves a large proportion of remittals out of account. Cases which are remitted to the adjudicator because there has been an error by the adjudicator but where the ultimate decision turns out to be the same should not, in our view, be left out of the overall figures when trying to assess the quality of decision-making at adjudicator level. By definition, these are cases in which a material error has been made by the adjudicator—that is, one which might have made a difference to the outcome of the case. The IAT only remits cases where the error might have made a difference to the outcome. These cases should therefore be included in any calculation of the error rate at what is currently the first tier.

A case is not necessarily remitted because the Immigration Appeal Tribunal (IAT) is convinced an error has been made by the adjudicator. Instead, because of the limited scope of the IAT to reconsider evidence, it will remit a case if there has potentially been an error in the case, or because it wishes for further evidence to be considered. Indeed, if you look at a sample of cases remitted by the IAT, you will find that in many of them they are reasonably sure that a given decision is correct, but it needs to be further considered by an adjudicator to ensure that this is the case.

It is not always helpful to consider the nature of remittals in the abstract, so let me provide some concrete examples. For instance, an adjudicator may have properly considered all the evidence, and made a reasonable decision based on that evidence. However, in his determination, he fails to note that he has indeed considered a key piece of evidence. This would be a case in which the decision of the adjudicator is correct, but in which the case would be remitted to make sure of this fact. A second example would be where an appellant presents fresh evidence at the IAT stage, or advises that their circumstances have changed. Sometimes, this is genuinely the case; other times, however, it is done with the deliberate intention of delay. Either way, the case would need to be remitted to ensure the accuracy of the decision.

The best way in which we can ascertain the nature of a remittal from our figures is to consider whether the decision is then changed. However, just as there will be cases where the initial adjudicator's decision is correct, but is changed on remittal because of new evidence or changed circumstances, there will also be cases in which the initial decision is in error, but a remittal produces the same decision for different reasons. We believe that these inaccuracies in the numbers will balance each other out; in any case, we acknowledge that our figures are necessarily an estimate, but are still helpful to the debate at hand.

1.71 Second, there is a further potentially significant omission from the figures relied on by the Government. The statistics do not record the number of cases in which the Home Office concedes at different stages in the process. This is most likely when the IAT has granted permission, but it may happen at any stage between appealing against an adjudicator's decision and a rehearing before an adjudicator following a remittal by the IAT. We are not aware of any available statistical record of the proportion of total cases which these represent, but we consider it likely that the number is not statistically insignificant, and it should therefore be borne in mind when assessing the Government's evidential claim about the accuracy of adjudicator's decisions.

There are only two stages in the process at which the Home Office is likely to concede: either at (or immediately before) the full hearing before the IAT or the hearing before the adjudicator on remittal. The Home Office do not have the resources to reconsider cases that are listed for hearing at some point in the future.

What is most likely to happen is that the Home Office representative will concede at the hearing by not arguing the case. However, these cases are not "lost" from the statistics: in such circumstances, they would be included in the number of cases in which the applicant succeeded. Therefore, the proportions of cases in which the adjudicator's decision is overturned remains accurate in this respect.

1.72 Third, it is in any event in our view questionable whether evidence of the level of unsuccessful appeals is sufficient to demonstrate "abuse" of the system. The fact that there are unsuccessful appeals does not mean that every unsuccessful appellant has "abused the system". In every system of legal remedies there will be cases which succeed and cases which do not succeed. Not all of those which do not succeed can be said to have abused the system. The system exists in order for people to argue their case before an independent decision-maker. Indeed, Article 13 itself requires there to be an opportunity for the substance of all "arguable" Convention complaints to be heard, not merely complaints which eventually prove to be well-founded. Evidence of the number of unsuccessful appeals therefore does not constitute, without more, evidence of abuse. We consider that, when assessing the justification for restricting access to legal remedies for the potential violation of Convention rights, "abuse" means the bringing of wholly unmeritorious claims with no prospect of success, not merely the bringing of unsuccessful claims. We would welcome information from the Government demonstrating what proportion of claims are found to be abusive in the sense of being wholly unmeritorious with no real prospect of success.

We have never claimed that every case that fails is necessarily "abusive". Nevertheless, such a failure rate suggests that many appeal applications are being brought which have no real prospect of succeeding. This is coupled with anecdotal evidence supplied by many people who work in the asylum and immigration appeals system. I have seen a sample of statutory review applications—just one stage in the process admittedly, but nevertheless an advanced one—which demonstrated to me how many applications do no more than persistently restate the facts of the case, and are therefore almost without exception refused. The applications are very varied in their quality.

1.73 Fourth, we note that the Government has not provided any evidence that the error rate at adjudicator level is any better than in any other part of the administrative law system where a second tier of appeal exists, followed by statutory reviews, appeals or judicial review. In order to address the discrimination argument, such a comparison needs to be made.

We do not have comparable information available. However, the interesting figure would not be the percentage of cases which have their decisions changed through the appeal system, but instead the proportion of cases which advance further and further through the appeal system, only to fail at every stage. Asylum is unique among areas of law in that there is indisputably an incentive for applicants to seek to delay the process in the hope of avoiding removal. In no other tribunal is there a comparable incentive to be gained by bringing an application that is without merit. Indeed, for genuine applicants, a structure that brings early finality is a benefit, just as you would find it to be elsewhere in administrative law. It is the applicant seeking to exploit the system who benefits from many tiers of appeal—and that is the exploitation we are working to stop.

1.75 We would welcome further information from the Government demonstrating the scale of the problem of abuse which clause 14 is designed to address and the extent to which the measures proposed can be expected to relieve pressure on the courts. Without more detailed information, it is difficult for us properly to assess the proportionality of the interference with the right of access to court and to effective remedies.

Once again we believe that we are not impeding the right of any applicant to a fair and independent judicial hearing, and to effective remedies. The statistics we have published and explained at length are the best evidence that the appeals system is being systematically exploited to cause delay. At key stages of the process, this failure rate is even more pronounced; I shall return to this when I consider our legal aid proposals below.

1.77 We consider the five day time limit to be far too short for the right of access to the High Court and beyond to be practically effective. The number of tasks to be performed between receipt of a decision and lodging an application for a review makes it simply impracticable to require applications to be lodged within five days. An application for reconsideration will require the applicant's legal representative to receive a copy of the Tribunal's decision, to read and consider it, to marshal any necessary evidence (which may require a meeting with the applicant at which an interpreter might well be required), to draft the legal grounds of challenge, and to lodge the application at the High Court. We consider that, more often than not, completing all these steps within a five day time limit will be a physical impossibility for most asylum-seekers.

We have discussed the actual amount of work that one could expect to be done with the Legal Services Commission. They have a very good idea of the hours worked through the information provided on costs.

The best proxy for the new review process is the statutory review process under the Nationality, Immigration and Asylum Act 2002 (NIA). Based on the current process, we would expect solicitors to do around six hours of work on a review application. This includes reading the appeal determination, interviewing their client, taking instructions, and briefing counsel if necessary. Drafting the review application should expect to take counsel between two and five hours. Therefore, in five working days, you could expect a solicitor to spend six hours, and counsel maybe five hours on a review application. I do not think that is too much to ask.

You have to consider also that this will be taking place at an advanced stage of the case, by which point the legal representatives should be very familiar with the key points of contention in the case. The review application is not going to be covering new ground for them, not least because any issue on which the Tribunal could have made an error of law will already have been raised in argument at earlier stages. In any case, the intention is not that legal representatives will comb through the decision to argue technical points of law; the review process is there to correct egregious errors that go to the heart of the decision.

On top of all this, the Bill includes a provision for the Court to allow applications beyond the five-day time limit "where it thinks that the application could not reasonably and practically have been made within the period" (103A(4)(b)). Therefore, if a party with a meritorious case has to shop around extensively to find a solicitor to take on their case, the Bill gives the Court sufficient power to avoid injustice by extending time in these cases.

Finally, I must once again stress that the review process is additional to the process that exists to protect the applicants' human rights. Therefore, I believe that the case law covering article 6(1) is not even relevant by analogy.

1.85 We remind the Government of its obligation under the ECHR to ensure that there is available a practically effective opportunity to have the substance of any arguable Convention complaint considered, and that this obligation includes a positive obligation to take steps to make sure that there are not practical obstacles to the availability of such an opportunity.

As I have previously laid out, the applicant will already have had ample opportunity to present arguable Convention complaints prior to the review process. The review process is an additional step to bring in higher court oversight and to correct serious errors of law.

1.87 We agree that the effect of the proposed conditional fee legal aid regime for High Court reviews from the Tribunal will be that meritorious cases do not get brought because of the lack of representation.

Good representatives, who already only bring meritorious cases, have nothing to fear from the new legal aid provisions. Indeed, with an appropriate fee there will be a strong incentive for representatives to present good cases. The point of the new legal aid arrangements is to require the representatives to assess the quality of the case rigorously before taking it to review. This is not being done by all representatives at present.

Our figures show that under the current system, fewer than one in ten of the cases for which permission to appeal to the IAT is sought actually succeed in changing the decision. This stage of the current process is the nearest analogy to the review procedure in the new process.

The legal aid merits test, which until recently was applied by solicitors themselves, requires that a case for which permission is sought should have at least an even chance of success. Success at this stage can reasonably be defined as securing a change in the decision promulgated by the adjudicator. You would therefore expect, by simple probability, that somewhere in the region of 50% of cases would succeed, and indeed that the other 50% would still have merit. Yet fewer than one in ten cases actually succeed, and more than six out of ten do not even succeed in getting permission for a full hearing. Even if you work on the basis that a remitted case that did not change the decision is what we would describe as a "near miss" under the new system, we believe that only 22% of cases are deserving of their legal funding.

1.90 A paper procedure is difficult to reconcile with the "anxious scrutiny" which is required to be given where important Convention rights are at stake. Under the Human Rights Act, it is now well established that even on judicial review (where cross examination of witnesses is rare) it may be necessary to have witness evidence in order to establish the facts which lie at the heart of an Article 3 claim. This will not be possible under clause 14.

An oral hearing is not necessary at the High Court review. The proceedings in the High Court are intended to establish whether the Tribunal may have made an error of law. It is neither necessary not desirable for the full facts and law of the case to be reheard in oral argument. The place for that is when the case is reconsidered in the specialist Asylum & Immigration Tribunal.

1.91 The exclusion of "procedural" decisions from decisions which can be challenged on review would appear to limit the scope of the right considerably. Challenges on the basis of breaches of procedural fairness will often be to some "procedural" decision by the Tribunal, e.g. to refuse to call a certain witness, or not to allow cross examination on a particular point etc., but these may be outside the scope of the right.

The point of this exclusion is to prevent the review process being used to challenge procedural decisions as they arise. If, however, an applicant wishes to assert, for example, that an appeal determination issued by the Tribunal erred in law because the case was not adjourned to allow them to gather extra evidence, they would be able to bring that matter to the review as usual. The mischief that we are seeking to avoid is that the review process would be brought into play before the appeal is completed, and determination promulgated, thus adding to the length of the process.

1.92 Any party to the appeal can apply to have the Tribunal's decision reviewed, and the High Court is required to determine the application solely on the basis of the applicant's written representations. This means that an individual who succeeds before the Tribunal might have their case remitted to the Tribunal as a result of a procedure in which they are not entitled to participate. This appears to us to be contrary to basic common law notions of procedural fairness and to the principle of equality of arms in Convention case law.

The High Court review will in effect be functioning as an ex parte hearing, to determine whether the party seeking the review can show that there may have been an error of law by the Tribunal. If a case is remitted for reconsideration by the Tribunal, both parties will be able to make submissions in the usual way to the Tribunal, thus ensuring equality of arms.

1.93 There is provision for only a very limited remedy: the only order which can be made is reconsideration by the Tribunal, and this can be ordered only once, even if an entirely new error of law is committed during reconsideration.

Similarly, the remedy of ordering reconsideration is effective as the Tribunal will then be fully equipped to ensure that justice is done. If it is argued that an error of law is committed during reconsideration, the remedy is to seek permission to appeal to the Court of Appeal. To allow further reviews and subsequent orders for reconsideration would risk creating a loop that could be exploited to cause delay.

1.94 The decision of the High Court on an application for reconsideration is to be final. The lack of a right of appeal to the Court of Appeal is a further serious restriction on the remedies available. In other contexts, such a restriction is only imposed after a party has had the benefit of a full rehearing before a court with full jurisdiction over questions of fact and law (for example appeals to the Divisional Court against certain professional disciplinary decisions).

We do not believe it necessary for there to be access to the Court of Appeal in every case in the review process. If there is a case that the Tribunal may have made an error of law, the case will be remitted for reconsideration back to the Tribunal, the result of which may be appealed, with permission, to the Court of Appeal. If the High Court finds that there is a point of law of such general importance that the guidance of the Court of Appeal would be helpful, they may refer the case directly to the Court of Appeal (and will almost certainly grant exceptional legal aid funding in doing so).

We are concerned to ensure that the appellate courts are not overwhelmed by applications without merit. However, we are also aware that in select cases, the input of the Court of Appeal and the House of Lords is essential. We believe we have struck the right balance between allowing access and protecting the higher courts from being overwhelmed with applications.

1.98 At present, a very significant proportion of adjudicator decisions are overturned by the Immigration Appeal Tribunal. In 2002-03, in those cases where permission to appeal was granted, almost 60% of the original decisions were either reversed by the IAT or remitted to the adjudicator.

While I agree that this 60% figure is accurate, we need to be very clear about what it represents.

First, in the calendar year 2003, 37.3% of cases that applied for permission to appeal to the IAT were granted permission to appeal. In other words, nearly two-thirds of cases failed before they even got to a full hearing before the IAT. It is right to take these cases into account, as they have entered the appeal process asserting that they have a good case, and have been found wanting at the first hurdle. If you take them into account, the 60% figure reduces to no more than 22% success.

However, secondly, as I have already discussed, it is not meaningful to include every case that is remitted in any estimate of success. Cases are remitted for many reasons, and fewer than one in four actually receives a different decision when reconsidered at the adjudicator tier. I believe that the most meaningful way to assess success in the IAT is to consider the proportion of cases that receive a different decision in the process, either by being allowed outright by the IAT, or by being remitted then receiving a different decision before the second adjudicator; as I have already outlined, this comes to fewer than one in ten of cases that initially seek permission to appeal.

1.119 We conclude that the UK is under a Convention obligation to secure to everyone within its jurisdiction judicial protection for Convention rights which is not less favourable than the protection afforded to UK nationals who wish to challenge acts or decisions of the administration, unless there is an objective and justifiable reason for such less favourable treatment. We consider that clause 14 gives rise to a very significant risk of a breach of that obligation. We would welcome further information from the Government demonstrating the evidential basis for excepting immigration and asylum from the approach which applies in relation to all other parts of the administration.

The Government does not agree that its proposals give discriminatory access to legal remedies on grounds of nationality. The remedies available from the Tribunal under Part 5 of the 2002 Act (which the Bill amends) are, by their very nature, ones only available to persons whose status does not of itself entitle them to enter, stay or remain in the United Kingdom.

The proposals for review and reconsideration respond to Parliament's desire to add to the safeguarding of appellant's rights, whether they are Convention rights or otherwise. The fairness and effectiveness of remedies has to be viewed as a whole and it is wrong to focus on any individual part of the process. The review step in the Government's proposals is akin to a permission stage, and it is inappropriate to assess its sufficiency in isolation from the second step to which it may lead, namely the possibility of an entire second hearing of the substantive appeal.

The Government has removed the provisions in the clause ousting judicial review. Judicial review has, therefore, not been ousted. The Government's proposals are establishing an alternative, effective remedy. What this involves is not a less favourable right, but an alternative procedure which is specifically designed to respond to the desire for oversight of Tribunal decisions by the higher courts, and procedural speed, but which is more resilient against undue exploitation.

The Government's stance is that review and reconsideration will stand as a suitable alternative remedy. Ultimately, it would be for the courts to determine whether, in any particular case, review and reconsideration provides such a remedy. But the Government's view is it does—any error of law in the substantive determination of the appeal, which might previously formed the basis for judicial review, can be taken. The Government notes the decision of the Administrative Court in R(G) and R(M) v. Immigration Appeal Tribunal [2004] EWHC 588 (Admin). A helpful read across can be made between the provisions under consideration there—the statutory review provisions contained in section 101 of the 2002 Act and the new proposals for review and reconsideration. R(G) and R(M) compared the respective merits of the remedies of statutory review and judicial review. It also heard argument on the question of the due protection of appellants' Convention rights under article 6 and 14. Collins J remarked that statutory review held both advantages and disadvantages for appellants in comparison with judicial review. He rejected the claim that the procedure was discriminatory. Although judicial review had not been ousted by section 101 of the 2002 Act, he held that except in exceptional circumstances it would be an abuse of process for a claim for judicial review to be pursued after a statutory review has failed on grounds which were or could have been relied on in the statutory review claim.

I hope that I have gone some way to answering the Committee's concerns and explaining how the new system is intended to operate.

5 July 2004

1b. Letter from Des Browne MP, Minister of State, Home Office, to the Chair

The Government is grateful to the Joint Committee on Human Rights for its scrutiny of the Bill. I am writing to respond on some of the specific issues raised by the Committee in its report published on 4 June. The clause numbers in our responses refer to the Bill as amended in Committee on recommitment.

Clause 9: Failed asylum seekers: withdrawal of support

We welcome this acceptance of our view in our earlier Report that the Secretary of State must recognise and give serious consideration in every case to the potential state of destitution which follows the withdrawal of benefits, and that the Government cannot treat an asylum-seeker's failure to leave the UK voluntary as relieving it of its obligations under Article 3 to secure their right not to be subjected to inhuman or degrading treatment (paragraph 1.13).

In our Fifth Report we also drew attention to the fact that violations of Article 8 ECHR and Article 3 of the Convention on the Rights of the Child could follow from the implementation of clause 8 in practice. The Government's response does not deal with this issue. We remain of the view expressed in our earlier Report and draw this matter once again to the attention of each House (paragraph 1.14).

The Government has noted the view of the Committee that, while clause 9 is in itself compatible with ECHR and UNCRC, violations could follow in practice, particularly if the interview system is insufficiently robust. The Government has made clear that before the Secretary of State certifies that a person has failed without reasonable excuse to take reasonable steps to leave the UK voluntarily or place himself in a position in which he is able to do so, the family will be offered an interview. At this interview (and at any stage beforehand) the family will have an opportunity to explain why it has not yet left the country and what steps it is taking to do so. If there are particular reasons why it has not taken steps to leave the UK or place itself in a position whereby it can do so then it will have the opportunity to set these out. So, all cases will be assessed on their own individual merits. The Government would reiterate that where people are co-operating (for example with efforts to obtain a document on their behalf) and taking reasonable steps to leave, the Secretary of State will not certify. Furthermore, if a family has a reasonable excuse for not having taken reasonable steps to leave, then, equally, the Secretary of State will not certify.

Schedule 3 of the Nationality, Immigration and Asylum Act 2002 (into which clause 9 inserts a new paragraph 7A)—already makes clear that support will continue to the extent necessary to avoid a breach of a person's Convention rights. The process outlined by the Government makes clear that cases will be decided on their individual merits. Part of that assessment will naturally include whether a continuation of support is necessary to avoid a breach of a person's rights under the Convention.

The Government would also emphasise that clause 9 provides for a right of appeal to the Asylum Support Adjudicator.

Clause 33: Removing asylum seeker to safe country

We consider that there is a significant risk of incompatibility with the UK's obligations under the ECHR in enacting an automatic statutory deeming provision, precluding any individual consideration of the facts of a particular claimant's case and conclusively ousting the jurisdiction of the courts to hear a claim that removal to a third country on the First List would breach the claimant's Convention rights because of the risk of onward removal. We draw this matter to the attention of each House (paragraph 1.126).

The Committee reports that in their opinion there is a significant risk that the provisions are incompatible with the ECHR. The report refers to Articles 2, 3 and 13. The report cites the ECtHR case of TI v UK in particular in support of the contention that a deeming provision in relation to any type of human rights claim brings a significant risk of incompatibility with the ECHR.

The Government takes its obligations under the ECHR most seriously and does not consider this provision to be incompatible. The Government accepts that to remove someone to a third country where they could show a real risk of treatment contrary to Article 3 at the hands of a state or third party would engage the UK's legal obligations under Article 3 of the ECHR. Treatment which would constitute a breach of Article 2 would in the vast majority of cases also breach Article 3. The Government observes that the deeming provision is very narrowly defined, it only relates to claims brought on the ground that the safe third country would remove the claimant to another country in breach of their human rights. It is still open to an applicant to bring a human rights claim against removal from the UK on any other ground. So claimants can, for example, challenge removal on the grounds that they would suffer adverse treatment within the safe third country such that removal would be a breach of the UK's obligations under Article 3.

T.l. is authority for the proposition that a Dublin participant cannot rely on the existence of Dublin arrangements to defeat a human rights claim against removal to another Dublin participant, but must be satisfied that that applicants will not be removed from those countries in breach of Article 3 ECHR. The Government accepts that it must comply with this ruling. The Government is satisfied that there are effective processes in place in each of those countries on the first list at Part 2 or Schedule 3 by which an applicant can challenge onward removal on human rights grounds. Accordingly, the Government is satisfied that removal will not take place in breach of Article 3 in those countries. In the circumstances, we do not accept that a claimant could make an arguable case against removal from the UK to another state bound by the Dublin arrangements on that particular human rights ground and, accordingly, do not consider that a remedy is required by Article 1 3 of the ECHR. As noted above, all other human rights claims against removal from the United Kingdom can be brought in the UK prior to removal in the normal way and will attract an in-country right of appeal against refusal if the Secretary of State is satisfied they are not clearly unfounded. Applicants whose claims are certified as clearly unfounded can challenge that certification by way of judicial review.

Clause 35: Deportation or removal: cooperation

In the absence of more concrete information about the approximate number of people who refuse to co-operate in the process of obtaining travel documents, we remain of the view that we cannot after a concluded view on where the proposed power serves a legitimate aim or that its exercise would in all cases be proportionate to that aim. In order for Parliament properly to assess the proportionality of this very wide power to interfere with Article 8 rights, it needs to be informed more precisely of the scale of the mischief which is aimed at by the measure. We draw this matter to the attention of each House (paragraph 1.130).

The Committee has found that it cannot be satisfied that the provision serves a legitimate aim or that in all circumstances it would be proportionate to that aim. In response to that, we wish to offer further information about the extent of the mischief aimed at by the clause.

Redocumentation is essential if we are to remove failed asylum seekers and illegal immigrants to their country of origin. It is difficult to produce statistics on the number of people who enter the country undocumented, since many asylum seekers and illegal entrants enter the country clandestinely.

We do estimate that more than half of the people who arrive in the United Kingdom and subsequently claim asylum have no documentation or inadequate documentation. In fact, management information indicates that, in the financial year April 2003 to March 2004, undocumented and inadequately documented arrivals (which may include dependants)[129] represented in the region of 90 per cent of port asylum cases. A high proportion of asylum claims are refused and we would normally look to remove those refused asylum. However, someone who arrived without a passport or other appropriate documentation cannot be removed until a travel document is obtained on their behalf. Although a travel document might be either an EU letter or other non-national document, in many cases countries will not accept such a document and will only accept people who have a document issued by that country. A country will only issue a travel document if it is satisfied of both the true identity and nationality of the person concerned.

A number of different requirements must be fulfilled before a travel document can be obtained by or on the behalf of a person. These requirements vary from country to country and can range from providing personal information about friends, family and schooling to attending a personal interview. Most embassies have specific forms requiring specific information to be completed. If these forms are inaccurately completed or incomplete then they will often be rejected. Therefore, the procedures for supplying someone with new documents can be seriously hampered if the individual involved deliberately obstructs the process.

People who fail to comply with just one element of the redocumentation process hamper both this and the removals process. For example, the Immigration Service Documentation Unit manages four interview schemes whereby consular officials who agree to attend a removal centre interview up to twenty or so persons approximately once a month in order to establish nationality. The success of these schemes depends on the individual agreeing to be interviewed. Of those who are actually interviewed documents are generally agreed in 90% of cases.

However, an increasing number of people refuse to be interviewed. While some of them subsequently change their mind at a later date, many do not. On any interview date it can sometimes be as many as 50% of those put forward for interview who refuse to be seen. Those people who eventually agree to be interviewed at a later date succeed in delaying the redocumentation and removals processes, putting a significant strain on our resources. Those who refuse entirely thwart removals indefinitely.

This is just one example of how non-compliance can thwart the removals process, have a serious impact on resources, and reduce public confidence in our ability to control immigration.

Clause 36: Electronic monitoring

We welcome the Government's statement of intention that each case will be carefully and individually assessed to determine whether any interference with Convention rights is justified and proportionate, but we note the lack of any suggested procedural safeguards to ensure that the power to require cooperation will only be used where it is strictly justified. We draw this to the attention of each House (paragraph 1.136).

Immigration Service staff will be issued with strict guidance on assessing whether interference with Article 8 rights through Electronic Monitoring is justified in individual cases. Electronic Monitoring can only be offered by a senior officer at Chief Immigration Officer level, an adjudicator or a Judge of the Special Immigrations Appeals Commission, all of whom are currently entrusted with the power to grant bail. The Electronic Monitoring system is operated by contractors who have five years experience of this operation in the criminal justice system, and whose services are audited by an external Home Office group. Reviews of the requirement will be undertaken at the end of the reporting period or when the applicant's circumstances change.

Clause 38: Immigration Services Commissioner: power of entry

We remain of the view expressed in our earlier Report that, in order to be compatible with the Convention, there is a need for additional safeguards in relation to legally privileged material, and we draw this to the attention of each House (paragraph 1.140).

Clause 38 of the Bill makes provision for a power of entry, search and seizure to be granted to the Immigration Services Commissioner ("the Commissioner"). This power will enable the Commissioner to investigate more effectively the criminal offence, set out in section 91 of the Immigration and Asylum Act 1999, of providing immigration services when unqualified to do so. The power applies to material likely to be of substantial value to an investigation of the offence. That material may include items subject to legal privilege.

The crime committed by these rogue advisers is a serious one. To effectively target advisers who are operating illegally the Commissioner must be able to prove that they have knowingly given immigration advice. In most cases, the only evidence to this effect will be communication between the illegal adviser and their client.

It is not a matter of settled law that communications between non legally-qualified advisers and their clients are subject to legal privilege, particularly where that adviser was acting illegally. The Government is mindful that the provision of immigration advice by non-legally qualified practitioners is provided for by statute, and is therefore proceeding on the assumption that communications between a non-legally qualified adviser and his clients would be subject to legal privilege. There is no doubt that for a client, the information given is equally sensitive whether given to a legally qualified immigration adviser or a non-legally qualified immigration adviser, including one committing an offence under section 91.

The purpose of including material subject to legal privilege within the scope of this power is that, in order to show that immigration advice is being provided unlawfully, the Commissioner will generally require evidence of communications between advisers and their clients. For the reasons given above, those communications may well be subject to legal privilege.

There is an existing statutory safeguard, which limits onward disclosure of information by the Commissioner. Section 93 of the Immigration and Asylum Act 1 999 sets out the circumstances in which onward disclosure by the Commissioner of information he has obtained in the course of his duty would be lawful. Those circumstances are:

(a)  that it is made with the consent of the person to whom it relates;

(b)  that it is made for the purposes of, and is necessary for, the discharge of any of the Commissioner's statutory functions or Community obligations;

(c)  that it is made for the purposes of any civil or criminal proceedings; or

(d)  having regard to the rights and freedoms or legitimate interests of any person, the disclosure is necessary in the public interest.

The Government does not consider it would be appropriate to put either a wholesale prohibition or a further limitation on onward disclosure by the Commissioner, even where material subject to legal privilege is concerned. It is considered that the section 93 safeguard strikes an appropriate balance to ensure that the power is compatible with the Convention.

Taking the four subsections in turn:

Subsection (a) is particularly important because many complaints made to the Commissioner come from the clients of rogue advisers. Even without this statutory provision it would be open to such clients to waive their privilege and consent to disclosure.

Subsection (b) is limited to the Commissioner's own obligations and should thus provide little scope for overstepping the mark.

Insofar as subsection (c) relates to offences under Part V of the 1999 Act, i.e. offences which are investigated and prosecuted by the Commissioner himself, the need for access to legally privileged evidence is referred to above.

Subsection (c) would not prevent the Commissioner from passing on legally privileged information, which related to other criminal or civil matters and was obtained incidentally in a search under clause 24. In both criminal and civil proceedings the trial judge would have a discretion not to admit such evidence.

Section 78 of the Police and Criminal Evidence Act 1 984 provides that a trial judge has the discretion to refuse the evidence on which the prosecution proposes to rely if it appears to the court that, having regard to all the circumstances, including those in which the evidence was obtained, admission would have an adverse effect on the fairness of the proceedings. The Court of Appeal, in the case of R v (1) Gary Daryl Bailey (2) Lee George David Keith Brewin (3) Ramesh Gangji (2001) 1 5/3/2001, held that the criteria applied to fairness in Article 6 of the Convention were the same criteria that would be applied in considering an application under section 78 of PACE.

Under the Civil Procedure Rules Pt 32 Rule (1) the court has a power to exclude evidence that would otherwise be admissible. That power must be exercised in accordance with the overriding objective to deal with cases justly. The court may be called upon to use that power to exclude evidence, otherwise admissible at common law, which has arguably been obtained in breach of an ECHR right.

The language of subsection (d) reflects the articles of the Convention which are subject to a balancing exercise, namely articles 8, 9, 10 and 11. Furthermore, as a public authority, the Commissioner is prevented by section 6 of the Human Rights Act 1998 from acting in a way, which is incompatible with Convention rights.

The government is aware of the exceptional nature of a power to seize items subject to legal privileges. For the reasons given above the government takes the view that that power is necessary and that the existing safeguards limiting the potential impact on Convention rights are sufficient to ensure that this power is compatible with the Convention.

Clause 42: Amount of fees

We note the Government's stated intention to exercise the power conferred by this clause in a way which is compatible with human rights obligations and we welcome the acknowledgement that this includes obligations under Article 26 ICCPR. We accept that powers which in theory could be exercised incompatibly with Convention rights are not per se objectionable in human rights terms, provided adequate other safeguards against their abuse are in place. However, where an enabling power is of such breadth and contemplates the making of distinctions between individuals which are likely to lack objective and reasonable justifications as this power does, we find it impossible to say that the provision creating the power is on its face compatible with human rights, without further information as to the differentiations likely to be made pursuant to the power. We draw this matter to the attention of each House (paragraph 1.144).

The Government welcomes the Committee's acknowledgement that the powers in Clause 42 will not result in discrimination on human rights grounds per se. The Government reiterates its stated intention to operate this power reasonably, fairly and in a manner which does not discriminate on grounds of an individual's ability to pay.

The Government recognises the need, noted by the Committee and members of both Houses, for Clause 42 to contain adequate safeguards to ensure that the power is exercised fairly and proportionately. For this reason, we indicated during the Bill's Report Stage in the Lords, that we would bring back amendments to strengthen the existing safeguards and clarified that the power in Clause 42:

only applies to applications for which a charge can be set under the statutory provisions specified on the face of the Bill;

will not apply to applications for leave to remain based on asylum or human rights grounds (which are expressly exempt from charging);

will not apply to the transfer of conditions (Clause 43) or visa applications made overseas in British Consulates;

will only be exercised with the express consent of the Treasury, except in respect of applications for certificates of entitlement to the right of abode under section 1 of the Consular fees Act 1 980. The reason for this latter exception is that such fees are made by an Order in Council (i.e. with the agreement of the Privy Council) and it is not usual to require Treasury consent in those circumstances.

The Government amendments being tabled at Third Reading will require the Secretary of State to consult with interested parties prior to the introduction of fees under this Clause and to render these powers subject to the affirmative resolution procedure. The Government believes that this will give both Parliament and the public the opportunity to scrutinise the basis on which fees are being levied and to evaluate the objective criteria on which the fees are calculated.

In deciding whether he should exercise this power and the way in which he would do so, the Secretary of State will take into account factors that might militate against the setting of a fee at a certain level for all applicants. Such factors would include the potentially differential impact of a proposed fee on the many types of applicant subject to it and the extent to which any resulting discrimination might be unreasonable or otherwise unlawful. If it was concluded that the introduction of a proposed fee would result in such an outcome it would be open to the Secretary of State either to set a lower blanket fee or to make provision in secondary legislation. Such provision might seek to ensure that those at risk of any discrimination would be, for example, exempted from the fee or are only obliged to pay a lower fee that reflects the cost of processing the application.

The Government considers that alongside the power to make exemptions, the additional safeguards provide that Clause 42 will be exercised in a manner which is compatible with our obligations under the ECHR.

5 July 2004

1c. Further letter from Des Browne MP, Minister of State, Home Office, to the Chair

The Government is grateful to the Joint Committee on Human Rights for its scrutiny of the Bill. I am writing to respond on some of the specific issues raised by the Committee in its report published on 5 July.

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. (Paragraph 3)

The Government recognises that introducing new policy at such a late stage is far from ideal but we believe that these are important and necessary measures. We agree that parliamentary scrutiny of legislation is important. This is why we offered for the Bill to be recommitted in the Lords, to enable proper scrutiny of the new measures. We are satisfied that the new provisions are compliant with the UK's human rights obligations.

Clause 10: Failed asylum seekers: accommodation

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. (Paragraph 16)

We accept that Article 4(2) must be interpreted in the light of the International Labour Organisation (ILO) definition of forced and compulsory labour i.e. "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily'.

But we do not accept that the scheme imposes a "penalty" within the meaning of this definition. Rather, performing community activities represents the contribution which a person is expected to make in return for assistance.

In any event, as the JCHR has identified, it is clear from the jurisprudence of the European Court of Human Rights that what constitutes "forced or compulsory labour is characterised by an obligation which is "unjust or oppressive".

We do not accept that requiring failed asylum seekers to carry out the sorts of activities which are envisaged is unjust or oppressive. This requirement is not a punishment. It forms part of a wider policy where all people are generally more active in the community and where it is recognised that if the state is to provide assistance, people must be prepared to give something back. The performance of or participation in community activities is merely another form in which someone gives something back to the State in return for the State giving something back to them, a long-held bedrock principle of social provision in this country.

We do not seek to argue that the requirement imposed necessarily constitutes a "normal civic obligation" within the meaning of Article 4(3)(d) ECHR. But it is of some relevance to look at Article 4(3) in seeking to identify what type of obligation might be characterised as "unjust and oppressive" for the purposes of Article 4(2).

We consider that to require some contribution of failed asylum seekers along the lines proposed would not go beyond what could readily be characterised as a normal and entirely reasonable obligation and does not, therefore, fall within the scope of Article 4(2).

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. (Paragraph 24)

We do not consider it is contrary to Article 3 to withdraw support where that is brought about by the refusal of an individual to meet a reasonable and lawful requirement to participate in community activities.

The Committee refers to the case of Limbuela. We do not accept that this decision deals with the circumstances where the withdrawal of support is brought about by the refusal of the individual to meet a reasonable and lawful requirement to perform community activities. We consider that it would be compatible with ECHR for support to be withdrawn in those circumstances.

Where support is terminated or not provided, it is open to an individual to re-apply for support under section 4, thereby avoiding the consequences of withdrawal of support.

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.

We believe that there is a clear justification for requiring failed asylum seekers in receipt of support under section 4 to perform community activities in return for that support.

Tackling the culture of 'something for nothing' runs through Government policy. The New Deal is an example. But this may manifest itself in different ways. Failed asylum seekers in receipt of support under section 4 are in a different position from UK citizens, for example. They are not entitled to remain here permanently and will be returning home. Therefore, we need to assess the best way for this group to give something back to the community and believe this to be through performing community activities.

It is essential in the interests of social cohesion for the public to have confidence in the immigration and asylum system. The UK must continue to offer sanctuary to those who have a well-founded fear of persecution as defined in the Geneva Convention. And it is in the UK's economic interests for migrants to be admitted to the UK under the managed migration routes set out in the Immigration Rules, where they meet the requirements of those Rules.

We believe that this strategy, developed in the interests of those who do qualify as refugees and in the UK's economic interests, can be undermined where failed asylum seekers are receiving state support while giving nothing back. However, if concern increases amongst the public about the support offered to this group which goes uncorrected and unclarified, it could fuel misconceptions and prejudices about other asylum and immigration issues which may affect the cohesion of particular localities.

In order to maintain confidence in the overall system, the taxpayer needs to be satisfied that, having accepted that it is right to offer support to those who are not in a position to return home immediately, those receiving the support acknowledge that there is a cost to that support. By participating in community activities, the failed asylum seeker will be occupying himself purposefully. This reduces the potential for tension that may otherwise surface and therefore aids social cohesion.

Clause 11: Accommodation for asylum seekers: local connection

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. (Paragraph 30)

The Government confirms that a former asylum seeker who made a homelessness application in a district where he had a local connection because of family associations (or some other reason) could not have his application referred to another local housing authority. The Government is satisfied that clause 11 is compatible with Article 8 of the ECHR.

Clause 12: Refugee: back-dating of benefits

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 I Protocol 1. (Paragraph 35)

The Government considers that the abolition of backpayments is consistent with the Refugee Convention and with ECHR.

To deal first with the Refugee Convention: the Government recognises that the decision on whether to grant refugee status is declaratory, so that a person has the status of refugee as soon as he meets the criteria in the Convention. The Government also accepts that the Refugee Convention imposes positive obligations towards refugees—including those contained in Article 23. But this gives rise to practical problems not addressed in the Convention as to how these obligations are met while States assess asylum claims. In practice, there are a large number of asylum claims that are not successful. In the circumstances it is neither appropriate nor practical to treat all asylum seekers in an identical way to UK nationals from the moment they claim asylum. The Government considers that Article 23 must be interpreted in the light of this and having regard to the broader purposes of the Convention as a whole.

Against this background, the Government makes two points. First, Article 23 of the Refugee Convention only applies to refugees "lawfully staying" in the UK. The Government's view is that for a person to be lawfully staying" within the meaning of Article 23 there has to be evidence of permanent, indefinite, unrestricted or other residence status. This requires a degree of permanent settling down which can be contrasted with admissions which are limited in time or purpose. The Government considers that the majority of those granted refugee status are not therefore lawfully staying in the UK for these purposes before they are recorded as having refugee status and accorded indefinite leave to remain.

Second, in so far as relevant, the Government takes the view that the requirement to provide "equal treatment" in Article 23 cannot be taken to mean "identical treatment", at least during the period while the asylum claim is being processed (that is before the State has recognised the person as a refugee). Rather, it must be taken to mean treatment which is broadly the same in material effect to that provided to a national. We are satisfied that, given the support that is available from NASS, those refugees who are lawfully staying while their claim is being determined will already have received or been entitled to receive treatment which is broadly the same in material effect to that provided to UK nationals. Mainstream benefits are intended as a safety net to ensure that a person has sufficient money on which to live and to provide help towards meeting their housing costs. Refugees will have had their essential living needs met through NASS support in the period during which they were claiming asylum.

During the debate on the Asylum Support (Amendment) (No2) Regulations on 29 June, Lord Avebury set out calculations which concluded that there is a difference of 7% between what is received on NASS support as compared to income support for a married couple with no children. The Government believes that the value of NASS in-kind support together with NASS cash support is on average only 4% less than income support levels. The assumptions and calculations by which we have arrived at the figure of 4% are attached at Annex A.

As Lord Rooker indicated during Third Reading of the Bill on 6 July, the fundamental difference between the Government's position and the argument advanced by Lord Avebury is not whether the difference between NASS support and income support is 4% or 7%. The question is whether any difference is acceptable at all. We do not say that the numbers add up exactly. We say that the two regimes are broadly the same in material effect and that, in so far as is necessary, what is provided to those in receipt of NASS support is sufficient to meet the requirements of the Refugee Convention.

Turning to the ECHR: the Government agrees that Article 14 cannot be in play if there is no less favourable treatment of one group as compared to another. As noted above, given the support that is available from NASS, asylum seekers will already have received or have been entitled to receive treatment which is broadly the same in material effect to that provided to UK nationals.

In any event, the Government does not accept that Article 14 would be applicable as it does not consider that Article I Protocol I is engaged. The Government takes the view that non-contributory benefits do not constitute possessions for these purposes.

More generally, the Government also points out that asylum seekers are in a very different position from those with settled status. There are a large number of unsuccessful applications for asylum. Most of those claiming asylum will not be allowed to remain in this country. It is neither appropriate nor practical to place those people, most of whom will only be here for a very short time, on mainstream benefits. The NASS support regime provides for the essential living needs of asylum seekers to be met in the period during which they are claiming asylum.

Clauses 19-25: Procedure for marriage

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. (Paragraph 68)

The view of the Committee is that there is a significant risk that the requirements under subsection 3 of clauses 19, 21 and 23 are incompatible with the right to marry under Article 12. The right to marry in that Article is subject to the "national laws governing the exercise of the right". Such laws may lay down the requisite formalities and rules of capacity but they may not "injure the substance of the right". The European Commission has expressly noted that rules intended to prevent marriages of convenience are not necessarily contrary to Article 12 (Sanders v France App No 31401/96). In general the Commission has not been inclined to regard the right to marry a chosen partner in a contracting state as one that overrides national immigration laws. The justification for this view is that the parties may marry elsewhere, so that the right to marry has not been fundamentally undermined (see for example, App No 97783/82).

The requirement imposed is that a non-EEA national must have either an entry clearance granted for the purpose of marriage, permission of the Secretary of State to marry or must fall into a class exempt by regulations. In deciding whether to grant permission the Secretary of State will be obliged to take into account any potential breach of ECHR and will therefore need to consider whether refusal of permission would remove the essence of the right to marry. Where it would be unreasonable to expect a person to travel abroad and apply for entry clearance for the purpose of marriage permission would be granted and therefore in practice there will be no breach of Article 12.

You have identified a number of factors that persuade you that there is a significant risk that the proposed legislation may be disproportionate.

The link between the purpose of the measures and the criteria to be applied by the Home Secretary

The proposed policy is that the Secretary of State will grant permission where a person has been granted over 6 months leave in the UK (be it leave to enter or remain, or a combination of the two) and where that leave is extant. This means that those who are in the UK unlawfully or without leave and persons with short term leave, for example short term visitors or students, would be expected to leave the UK and seek entry clearance for the purpose of marriage. However, even in those cases where it would be unreasonable to expect a person to leave UK and apply for entry clearance, permission will be granted.

This approach is consistent with the provisions in the rules on spouses. In April 2003 the Government amended paragraph 284 of the Immigration Rules to require that that persons applying for leave to remain on the grounds of a marriage to a British Citizen or person settled here have extant leave to enter of over six months leave since the date that they were admitted to the United Kingdom, or have entered the UK with leave as a fiancé Where a person does not meet this requirement they would be expected to leave the UK and apply for entry clearance as a spouse.

However this provision does not apply to spouses of EEA nationals exercising treaty rights in the UK. In those cases it is the act of marriage that gives a right of residence. Those marrying an EEA national do not need to obtain leave to remain on the basis of that marriage to have a right of residence as a result of being the spouse of an EU national. This is because the rights of residence obtained through a marriage to an EEA national are the subject of European Law rather than domestic law.

Applying this to persons marrying British citizens as well as those marrying EEA nationals has a double lock effect on the proposals. It is not unusual for a person to have dual status in the UK as both an EEA national and a person settled here (for the purposes of the Immigration Rules), such as, for instance, Irish nationals. If we were to apply these provisions only to those persons marrying EEAL nationals then we would leave ourselves open to abuse. The intended spouses of persons who hold dual immigration status would be free to present themselves as the fiancé of a person with settled status in the UK, foregoing the requirements laid down in the Bill, and subsequently remain in the UK as the spouse of an EEA national.

Further, we do not believe that we are placing too great a burden on the spouses of British citizens by requiring that they have over six months leave or entry clearance as a fiancé. As stated, under paragraph 284 of the Immigration Rules they would already be required to meet this requirement in order to apply for leave to remain and we are simply requiring that they provide for this in advance of their marriage rather than in advance of their leave to remain application. Where a person would not have otherwise intended to remain in the UK after their marriage they would be free to apply for leave to enter as a visitor for the purpose of marriage.

As such, if we are to prevent people abusing the Immigration and Marriage laws by entering into sham marriages with EEA nationals then we must stop them from getting married in the first place.

The measures are drawn very widely

Paragraph 3 of clauses 19, 21 and 23 requires that persons subject to immigration control for the purpose of the section hold either entry clearance for the purpose of marriage, permission form the Secretary of State, or otherwise be exempt by regulations made under paragraph (3)(c). The Committee feel that the measures affect more people than necessary.

I have already stated that visitors and short-term students granted less than six months leave in the UK will not be eligible to apply for a certificate of approval.

Where a person enters the UK as a visitor their application would be considered under paragraph 41 of the Immigration Rules. Under this paragraph, they must be genuinely seeking entry for a limited period, and intend to leave the UK at the end of that period. Equally, where a person is entering the United Kingdom under paragraph 57 of the Immigration Rules entry clearance is granted on the provision that they intend to leave the United Kingdom at the end of their studies.

By refusing permission to marry to those persons with less than six months leave in the UK the Government are preventing non-EEA nationals from legally entering the UK under these provisions only to illegally enter into a sham marriage with an EEA national and gaining rights to stay in the UK. Where a person is entering the UK for the purpose of marriage the Government would expect them to apply for entry clearance as a fiancé or marriage visitor. Likewise, where a person enters as a visitor and subsequently meets a person they wish to marry, we do not believe it is unreasonable for them to return home and apply for suitable entry clearance as their initial leave was granted on the grounds that they would return home when it expired.

The Government will be considering which categories of people should be exempt. Current thinking is that persons with settled status in the UK will be exempt as they would gain no immigration benefit from the marriage. There may be other classes of person who should for similar reasons be exempt but we feel that such exemptions are most suitably left to secondary legislation. Although it is possible to identify current categories of persons whom it would be appropriate to exempt, new categories may exist in the future which it may be similarly appropriate to exempt.

However, we do not believe that it would be prudent to automatically exempt those persons who we would expect to be granted a certificate of approval. The Government has no desire to see Registrars become pseudo-immigration officers. By requiring that non-EEA nationals must be able to demonstrate that they have entry clearance for the purpose of marriage, a certificate of approval or are in an exempted category, the Government have intentionally minimised the number of documents a registrar will be required to be familiar with at the notice stage. It would be unreasonable and potentially unworkable to expect registrars to inspect the passports of all non-EEA nationals giving notice of a marriage for valid leave to remain. This would require registrars to become familiar with every stamp, vignette and category of leave to remain.

The measures will be excessively burdensome to couples wishing to enter into a genuine marriage

The Committee believe that the extra expense of a certificate of approval and the requirement to give notice at a designated centre rather than a local register office is an excessive burden.

The Government does not agree that this is the case. Weddings are already expensive occasions and we do not feel that the additional cost of a certificate of approval place too great a burden on parties wishing to marry.

Likewise, in relation to the level of planning involved in organising a wedding we do not believe that the requirement to give notice of the wedding at a designated centre is a great inconvenience to the couple. However, Immigration and Nationality Directorate officials are working closely with registrars to identify the most suitable number of designated centres to assist our enforcement effort whilst not unduly inconveniencing couples undertaking genuine marriages.

Periods of delay in the exercise of the right to marry

The Committee has noted that a person refused a certificate of approval will still have the opportunity to travel abroad and apply for entry clearance.. The Committee is concerned that this will impose a substantial period of delay on the exercise of his right to marry. At present UK Visas are able to process 90% of applications for entry clearance within 24 hours, and so the Government does not believe that this will be a problem.

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 each House. (Paragraph 73)

At Report stage on 28 June Lord Rooker stated that we were not seeking to discriminate against people who are members of a religion other than the Church of England.

As Lord Rooker stated, there is no evidence of sham marriages taking place in the Church of England and the Government does not feel that it is likely that there will be abuse in the future. People who wish to marry in their parish church would normally be known be the minister of the church. Whilst not a statutory requirement, there would be an expectation upon couples to meet with the minister to talk through why they wished to marry and any church proceedings. The Government believes that this would act as a large disincentive to parties intending to engage in a sham marriage.

The Marriage Act provides for marriage in the Church of England and Church in Wales to take place after either ecclesiastical preliminaries or civil preliminaries. The vast majority of Anglican marriages take place after ecclesiastical preliminaries—banns or common licence. All other marriages, whether civil or by any other religious rites, must be preceded by civil preliminaries. This is a privilege which the Church of England has held since 1836 Marriage Restriction Act and the Government does not feel that it is appropriate or necessary to remove the right from them at this time.

We consider that there is a significant risk that the provisions relating to marriage would discriminate, on grounds of nationality, without objective and reasonable justification, between people of marriageable age who wish to marry. (Paragraph 76)

The Committee is concerned that these measures will contravene Article 14 in conjunction with Article 12. These measures are aimed at those people who use marriage as a means of circumventing immigration control. Whilst we accept that we are treating persons subject to immigration control and their partners differently in comparison to other persons wishing to get married, it would be unlawful and disproportionate to impose such obligations on those not subject to immigration control as there is no rational connection between the measures an d those not subject to immigration control.

Clause 29: Entry clearance

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. (Paragraph 81)

Clause 29 is drafted as a power to remove rights of appeal by order so that the Government has the flexibility to respond to areas of abuse as they are identified. If the cases in which the power could be used had to be specified on the face of the Bill it would be necessary to wait until the next legislative opportunity in order to respond to any new areas of abuse which may arise after the Bill has received Royal Assent. The Government recognises that the Committee cannot reassure Parliament at this stage as to the compatibility of the power with the Convention, without knowing how the power will be used. However, any use of the power will be subject to the affirmative order making process. Both Houses will, therefore, have the opportunity to scrutinise each use of the power. That scrutiny will of course include consideration of the compatibility of the order with the Convention. The Delegated Powers Committee concluded that the power was acceptable in light of the affirmative procedure. The Government considers that that procedure will provide the opportunity for Parliament to be reassured, on a case by case basis, that the power is being used in a manner which is compatible with the Convention.

The Government has repeatedly given assurances that the power will only be used in relation to requirements of the Immigration Rules which turn on objectively ascertainable facts. The Government welcomes the Committee's view that not providing an appeal right in those circumstances is likely to be unobjectionable in human rights terms.

9 July 2004

Annex A

WEEKLY SUPPORT RATES: COMPARISON OF INCOME SUPPORT AND NASS
SUPPORT RATES FOR 2004105

Example 1: Single person over 25

INCOME SUPPORT		NASS SUPPORT
Weekly rate	£55.65	Cash support (70% of IS)	£38.96
		Utilities*	£6.50
		Water and Sewerage**	£4.76
		Other essential items***	£3.85
Total	£55.65	Total	£54.07

* The value of utilities is based on the 2004 Housing Benefit fuel charge deductions of £13.00 per week for all fuel in properties of more than one room. (Housing Benefit is not intended to cover the cost of household bills so the fuel charges represent the amount deducted if a Housing Benefit claimant's rent is inclusive of utility bills). The majority of NASS-supported single asylum seekers are housed in shared or hostel based accommodation so a value of £6.50 is afforded for utilities for single asylum seekers.

** Based on OFWAT statistics of an average cost per day for water and sewerage of 68p.

*** In determining the value of the support package, NASS accords a value to the additional items not usually included in furnished accommodation, but which are supplied in NASS accommodation. These include towels, bedding, cooking utensils, crockery, cutlery etc. It is assumed that asylum seekers will remain in NASS accommodation for 6 months (26 weeks) and that a single person would need to spend a one-off sum of around £100 buying essential items for setting up home. Averaged out over 6 months this equates to £3.85 per week.

Example 2: Single person aged 18-24

INCOME SUPPORT		NASS SUPPORT
Weekly rate	£44.05	Cash support (70% of IS)	£30.84
		Utilities	£6.50
		Water and Sewerage	£4.76
		Other essential items	£3.85
Total	£44.05	Total	£45.95

(Assumptions the same as Example 1)

Example 3: Couple both over 18 with no children

INCOME SUPPORT		NASS SUPPORT
Couple	£87.30	Cash support (70% of IS)	£61.11
		Utilities	£13.00
		Water and Sewerage	£4.76
		Other essential items***	£4.81
Total	£87.30	Total	£83.68

*** For a couple it is assumed that a sum of £125 (half the amount of a family of four) would be required over 26 weeks for essential household items.

(Other assumptions the same as Example 1.)

Example 4: Lone parent aged 18 or over with one child under 16

INCOME SUPPORT		NASS SUPPORT
Lone Parent rate	£55.65	Cash support (70% of IS)	£38.96
Child u-16 allowance	£42.27	Child u-16 (100% of IS)	£42.27
Family premium	£15.95	Utilities	£13.00
		Water and Sewerage	£4.76
		Other essential items***	£4.81
Total	£113.87	Total	£103.80

(Assumptions the same as Example I above.)

Example 5: Family with 2 children under 16

INCOME SUPPORT		NASS SUPPORT
Couple	£87.30	Cash support (70% of IS)	£61.11
Child 1	£42.27	Child 1 (100% of IS)	£42.27
Child 2	£42.27	Child 2 (100% of IS)	£42.27
Family Premium	£15.95	Utilities	£13.00
		Water and Sewerage	£4.76
		Other essential items***	£9.62
Total	£187.79	Total	£173.03

*** For a family of 4 it is assumed that a sum of £250 would be required over 26 weeks for essential household items.

(Other assumptions the same as Example 1 above.)

Summary

	INCOME SUPPER	NASS SUPPORT	% DIFFERENTIAL
Example 1	£55.65	£54.07	2.84
Example 2	£44.05	£45.95	-4.31
Example 3	£87.30	£83.68	4.15
Example 4	£113.87	£113.80	8.84
Example 5	£187.79	£173.03	7.86
Average % differential			3.88

1d. Memorandum from Liberty

1. INTRODUCTION

The new amendments proposed by the government will "require non EEA nationals to demonstrate that they have entered the UK lawfully [and have permission to be here] before giving notice of an intended marriage at a designated registry office."[130] Liberty understand that the amendment goes much further in specifying that those affected will have to additionally obtain permission from the Home Secretary. It is not clear in what circumstances the Home Secretary will issue permission to marry.

Liberty have been asked to comment on the proposed amendments from the perspective of European Conventions of Human Rights ("ECHR") case law.

2. ECHR ISSUES

(a) Article 12

Liberty would be concerned about the extent to which the proposed amendments to the bill are compatible with Article 12 of the ECHR:

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

RIGHTS EXERCISED ACCORDING TO "NATIONAL LAWS"

Power of the Home Secretary to refuse permission

The right to marry is confined to marriage "according to the national laws governing the exercise of this right". While national law may lay down the requisite formalities and rules of capacity it may not "injure the substance as of the right". In Hamer v United Kingdom[131] the Commission stated that: "national law may not otherwise deprive a person or category of persons of full legal capacity of the right to many. Nor may it substantially interfere with their exercise of the right."

The fact that the Home Secretary has the power to refuse permission to marry altogether clearly threatens the substance of the right under Article 12.

Applying to a Designated Registrar/Seeking permission from the Home Secretary

Any requirement that substantially delays a person's opportunity to exercise his or her right to marry "must in general be seen as an injury to its substance".[132] In Hamer the Commission stated that: "the imposition of any substantial period of delay on the exercise of this right must in general be seen as an injury to substance. This is so whether the delay results from national law purporting merely to "govern the exercise" of the right, from the administrative action, or a combination of both".

Under the proposed amendments those affected will have to apply to the designated registrar and possibly obtain additional permission from the Home Secretary. There will be a specially trained registrar who will be under a duty to actively question the couple and in close liaison with the immigration service and Home Office ensure that the affected person has all the correct documentation in place. The potential administrative burden of these additional processes could create substantial delays which could injure a person's opportunity to exercise his or her right to marry".[133][134]

(b) Article 14

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race colour, language religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

It is unclear how the amendment will affect the combined religious and civil ceremonies performed by religious officials. If these ceremonies are affected then there would potentially be a breach of article 14. It is also unclear how the Home Secretary will exercise his written permission under 3(b). These uncertainties are problematic particularly because of the potential for discrimination against certain groups.

Discrimination on grounds of race can never be justified under Article 14.[135] Different treatment on grounds of nationality requires particular justification.[136] The Court held in Gaygusuz v Austria[137] that very weighty reasons would have to be put forward before the Court could regard a difference of treatment based on the ground of nationality.

In Hindawi v Secretary of State for the Home Department[138] it was held that the differences in parole system based on a prisoner's immigration status was contrary to Article 14 taken with Article 5. The Home Secretary was generally only able to release long-term prisoners on licence on the recommendation of the Parole Board but the Board's recommendation was not required if the prisoner was liable to removal from the United Kingdom. The court considered that the two categories of prisoners were in analogous situations and that there had been a difference in treatment based on nationality or "other status" for which no adequate justification had been advanced. Similarly the result of these amendments proposed by the government could lead to a different standards or systems being applied to different nationalities.[139]

Distinctions based essentially on differences in religion will not be justifiable.[140] [The amendment discriminates against anyone who is not a member of a religion other than the Church of England. Church of England marriages can be solemnised by bypassing Part III of the Marriage Act 1949 and as such can avoid the new amendments proposed by the government. This clearly discriminates against those who are of a religion other than that of the Church of England and would be a breach of Article 14.]

(c) Article 8

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Inter alia "the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development without outside interference of the personality of each individual in his relations with other human beings".[141] The right of an immigrant to enter or remain in the country is not as such guaranteed by the Convention but immigration controls must nevertheless be exercised consistently with Article 8.[142] The obligations of the state extend to everyone within its jurisdiction irrespective of citizenship or rights of residence. There can be no general finding that immigration rules or law comply with the Convention; each decision must be considered on its individual merits.[143] The amendments proposed by the government may pose problems with respect to the right for private and family life given that the Home Secretary ultimately has the power to preclude certain people from the right to marry.

28 June 2004

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129   This figure is based on the total of principal applicants excluding dependants, however there may be a number of dependants in the undocumented arrivals figure. Back

130   Government Press Release 8 June 2004. Back

131   (1979) 24 DR5 ECommHR. Back

132   ibid Back

133   The effect of delay is also shown in F v Switzerland the Court decided that a divorced person is entitled to remarry without being subject to unreasonable restrictions which were disproportionate to the legitimate aim pursued. The divorce court's imposition of a three year ban on the applicant's right to remarry after divorce was unjustified interference. The Court considered that during the seven or eight months delay the applicant's future spouse was "personally and directly wronged by the measure". Back

134   The delay would have to be substantial: a nine-day delay arising out of the arrest of the individual immediately prior to marriage was in the Commission's opinion not sufficiently substantial to give rise to any violation under Article 12: Sharara and Rinia v Netherlands App No 10826/84 (1986) 8 EHRR CD 307. Back

135   East African Asians v United Kingdom App Nos 4403/70 et al (1973) 3 EHRR 76. Back

136   Further preferential treatment of persons with close links to the receiving state or from a state with close links to the receiving state was held to be justificable Abdulaziz v UK (1985) 7 EHHR 471 and Moustaquim v Belgium (1991) 13 EHRR 802. Back

137   (1996) 23 EHRR 364 para 42. Back

138   [2004] EWHC Admin 78. Back

139   It must be noted that in the context of immigration the Court has held that the position of nationals and non-nationals is not analogous. Moustaquim v Belgium (1991) 13 EHRR 802. Back

140   Thlimmenos v Greece (2001) 31 EHHR 15. Back

141   Botta v Italy (1998) 26 EHRR 241. Back

142   Abulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, para 59-60. Back

143   ibid Back

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Prepared 4 August 2004