Letter from the Chair of the Committee
to Phil Woolas MP, Minster of State for Borders and Immigration,
Home Office, dated 12 May 2009
BAIAI V
SECRETARY OF
STATE FOR
THE HOME
DEPARTMENT
The Joint Committee on Human Rights is continuing
its practice of reviewing the implementation of judgments involving
a declaration of incompatibility under Section 4 of the Human
Rights Act 1998.
I am writing to ask for further information
in respect of the case of Baiai v Secretary of State for the
Home Department. This case determined that the requirement
that any marriage outside the Church of England involving a person
subject to immigration control must be subject to a Certificate
of Approval issued by the Secretary of State was incompatible
with the right to enjoy respect for religion and belief without
discrimination (as guaranteed by Article 9 and 14 ECHR).
The Government accepts that the exemption of the Church of England
from the Certificate of Approval regime is in breach of the Convention.
It is currently considering, after discussions with the Church
of England, how to extend the operation of the scheme to Church
marriages.
In its response to our last report on this issue,
published in January 2009, the Government explained:
The Government is committed to remedying the
declared incompatibility with Article 14…The UK Border Agency
is liaising with relevant stakeholders and is considering the
most appropriate way to remedy the incompatibility. We are conscious
of the House of Lords find that the scheme could represent a disproportionate
interference with Article 12 for those applicants who are
needy and not able to afford the fee for a Certificate of Approval
application, and are considering very carefully the implications
of the House of Lords judgment in this respect. This aspect relates
to the secondary legislation, and is separate form the declaration
of incompatibility which of course concern the primary legislation.[7]
We understand that the compatibility of the
Certificate of Approval scheme with the right to marry and the
right to respect for belief or religion without discrimination
(Articles 12, 9 and 14) is being challenged at the European
Court of Human Rights (O'Donoghue v United Kingdom, App
No 34848/07)
1. What steps do the Government plan to take
to remove the incompatibility in Section 19 of the Asylum
and Immigration Act (Treatment of Claimants etc) Act 2004 with
Article 9 and 14 ECHR?
2. Your predecessor explained that the Registrar
Service and the Church of England had been reluctant to implement
changes to the current Certificate of Approval scheme before the
judgment of the House of Lords in this case. The Government told
us three years ago that it intended to remove the discrimination
identified in the declaration of incompatibility. If there is
any reason for any delay in extending the Certificate of Approval
scheme to the Church of England, I would be grateful for an explanation
of that reason and the Government's timetable for action.
3. In the light of the guidance given by the
House of Lords, what steps, if any, does the Government consider
is necessary in order to ensure that the Certificate of Approval
scheme is operated in a manner which is compatible with Article
12 ECHR?
12 May 2009
7 Cm 7534, page 28. Back
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