Letter to the Chair of the Committee from
Phil Woolas MP, Minister of State, Home Office, dated 12 November
2009
BAIAI V
SECRETARY OF
STATE FOR
THE HOME
DEPARTMENT
I am writing to inform you of our intentions
with regard to Certificates of Approval (CoA) for marriage and
civil partnerships and further to your letter of 12 May. I apologise
for the extreme delay in responding to your request for information.
As you know, following the House of Lords judgment
in the case of Baiai v the Secretary of State for the Home
Department, 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 in the European Court of Human Rights (O'Donoghue
v United Kingdom, Application No 34848/07).
Regarding Article 12, the House of Lords found
in Baiai that a fixed fee of £295 for CoA applications
was capable of interfering with the right to marry in respect
of needy applicants. As a result, the UK Border Agency suspended
the £295 CoA application fee in April this year and at the
end of July the Agency introduced a fee repayment scheme for needy
applicants who had previously paid a CoA fee. With these changes,
we believe the CoA scheme is currently operating in a way that
is consistent with Article 12. Further information on the CoA
repayment scheme may be found on the UKBA website at the link:
www.ukba.homeoffice.gov.uk/sitecontent/newsfragments/coa-fee-repayment
Turning now to the declaration of incompatibility
with Articles 14 and 9 (right to respect for belief or religion
without discrimination), resulting from the exemption of the Anglican
Church in England and Wales. The Government informed the European
Court of Human Rights in August (in relation to the O'Donoghue
case) that we would notify the Court this Autumn how we propose
to remedy the incompatibility.
As you are aware, the UK Border Agency has sought
for some time to bring marriages after Anglican preliminaries
in England and Wales within the CoA scheme but has been unable
to find a workable solution. The imperative need to respond to
the declaration of incompatibility, together with the other changes
to the CoA scheme since 2005 which we believe have weakened its
effectiveness, have led us to conclude that we should deal with
the incompatibility by removing the scheme. We propose to bring
forward a Remedial Order under Section 10 of the Human Rights
Act 1998 to achieve this.
Preparation of a Remedial Order will begin immediately
with a view to laying a proposal before Parliament as early as
possible in the New Year. We are publishing our intentions with
respect to CoAs alongside other proposals for reform of the marriage
route to settlement in the Command Paper Simplifying Immigration
Law Cm 7730 which is being laid before Parliament today. We
will ensure that our rigorous new systems to help us identify
abuse before we grant status on the basis of marriage are in place
by the time the CoAs are withdrawn.
The JCHR of course has an important role to
play in scrutiny of Remedial Orders. At this stage, we are envisaging
using the non-urgent procedure and I will write to you again in
due course with the rationale and detail of our proposal.
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