Proposal for the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Remedial) Order 2010 - Human Rights Joint Committee Contents


2  Background to our recommendation

The purpose and effect of the proposal for a draft order

4. The purpose of the proposal for a draft Remedial Order is to remove the incompatibility in Section 19 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 declared by the domestic courts in Baiai v Secretary for State for the Home Department.[6]

5. Section 19 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 creates a Certificate of Approval scheme involving people subject to immigration control. The effect of the scheme is to prohibit persons subject to immigration control from marrying (other than in a Church of England religious ceremony) without specific authorisation. In 2006, the domestic courts held that the exemption of Church of England marriages from the scheme is in breach of the right to marry without discrimination on the grounds of religion (Article 14 ECHR considered together with Article 12 ECHR) and have declared the provision to be incompatible with the ECHR to that extent.[7]

6. In addition to the declaration of incompatibility made in respect of this issue, the House of Lords has held that, in order for Section 19 to operate in a manner compatible with the right to marry guaranteed by Article 12 ECHR, it must be read, pursuant to section 3 HRA 1998, to ensure that permission in a Certificate of Approval should not be withheld:

[I]n the case of a qualified applicant seeking to enter into a marriage which is not one of convenience and the application for, and grant of, such permission not to be subject to conditions which unreasonably inhibit exercise of the applicant's right under Article 12 of the European Convention.[8]

7. The House of Lords concluded that the scheme had previously been applied in an arbitrary and disproportionate way which amounted to an interference with Article 12 ECHR. The House concluded that although the Certificate of Approval scheme could have operated in a way which was ECHR compatible, there were a number of factors which rendered its operation disproportionate:

  • The fixed fee of £295 (or £590 where both parties require approval) was set at a level which could impair the essence of the right to marry for a "needy applicant";[9]
  • The practice of refusing applications for approval from anyone in the UK without leave to remain, or whose leave to remain did not total more than 6 months or whose leave had less than 3 months to run, amounted to an arbitrary and disproportionate interference with the right to marry guaranteed by Article 12 ECHR. This practice provided for no investigation of the genuineness of any proposal for marriage and treated every case in the same way, despite the motivation for the application. The justification for this approach was that investigation of "sham" marriages was considered too expensive and administratively burdensome. The court considered that this blanket prohibition on the right to marry for some individuals—including those seeking asylum who may be in the country for some significant time before leave to remain is granted— was unjustifiable.[10]

8. The decision of the House of Lords to narrow the scope of Section 19 has a significant impact on the operation of the Act. In effect, it means that a Certificate of Approval cannot be refused unless the Secretary of State has evidence to illustrate that the marriage is a marriage of convenience. This introduces an element of investigation previously considered too expensive and administratively burdensome by the UK Borders Agency and the Home Office.

9. In its Explanatory Memorandum and required information paper, the Government explains that previous consideration of the extension of the scheme to Church of England marriages has been unsuccessful and the decision has been taken to use the Remedial Order process to abolish the Certificate of Approval scheme:

Given the difficulties in finding a satisfactory way of removing the incompatibility and concerns about the effectiveness of the scheme, the Government has decided that the only appropriate course of action in these circumstances is the removal of the Certificate of Approval scheme.

10. The effect of the draft Order is to repeal all of the provisions of primary and secondary legislation which are required to operate the scheme in the UK, in relation to both marriages and civil partnerships (the scheme was extended to civil partnerships by the Civil Partnerships Act 2004). (A Remedial Order may contain any such incidental, supplemental, consequential or transitional provision as the person making it considers appropriate and necessary to remove the incompatibility in question). [11]

The Committee's role

11. This proposal is the fourth occasion when the Remedial Order process has been used.[12] The first JCHR set a number of criteria and factors for its consideration of Remedial Orders and our predecessor Committee published guidance for departments on the making and use of the remedial order process.[13] We welcome the helpful framework set by our predecessors and adopt it in this Report. Our role is to balance two objectives: the need to ensure that parliamentary scrutiny of Remedial Orders is commensurate with the fact that they amend primary legislation, and the need to ensure that breaches of Convention rights are remedied without delay.

12. In respect of each Remedial Order proposed, the main judgement we make is whether the Minister has the power to make the Order under the HRA 1998. This involves answering a number of questions, including:

  • Have the conditions for using the Remedial Order process (Section 10, HRA 1998) been met? (Has a violation of the Convention been identified by a declaration of incompatibility or an adverse judgment of the European Court of Human Rights?)
  • Are the reasons for proceeding by Remedial Order rather than through primary legislation "compelling"?
  • Have the Government produced the information required by Section 10 HRA 1998?
  • Have the Government responded effectively to any further requests for information by the Committee?
  • Does the proposal remove the incompatibility with Convention rights which it is designed to meet, and is it appropriate?
  • Is the non-urgent procedure appropriate?[14]

13. We are also required to consider the technical questions usually asked by the Joint Committee of Statutory Instruments, which reviews all other delegated legislation. This must include whether:

  • The Order imposes a charge on public revenues or requires a payment to be made to a public authority;
  • There is doubt about whether the Government has the power to make the Order;
  • An unusual or unexpected use is being made of the power;
  • There are special reasons to call for elucidation of its form or purport; and
  • The drafting is defective.[15]

14. It is evident that there is a significant overlap between some of the JCSI tests applied and the judgement we take in considering whether the proposal is within the scope of Section 10, HRA 1998. With this in mind we consider each of these questions below. There is one technical drafting issue which we draw to the attention of both Houses.

USE OF THE POWER TO TAKE REMEDIAL ACTION

15. Section 10(1)(a) of the HRA provides that a Minister may take remedial action if "a provision of legislation has been declared under section 4 to be incompatible with a Convention right" and no further appeal is possible. In 2006, the High Court in Baiai v Secretary of State for the Home Department made declarations of incompatibility in relation to Section 19(3) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 indicating that the Certificate of Approval scheme was incompatible with the right to marry in Article 12 ECHR and discriminatory in so far as it exempted Church of England marriages (and so, in violation of Article 14 ECHR). The Government did not appeal the declaration of incompatibility made on the grounds of discrimination. Subsequently overturning the declaration of incompatibility made solely on the grounds that the scheme was incompatible with the right to marry (Article 12 ECHR), the House of Lords made a new declaration of incompatibility in 2008 intended to make clear that the incompatibility related only to Section 19(1) of the Act and the exemption for Church of England marriages. We agree that it is open to the Minister to proceed by way of a Remedial Order in this case, since a declaration of incompatibility has been made and no further appeal is possible.

COMPELLING REASONS

16. The Minister may only proceed to use the Remedial Order process if he considers that there are "compelling reasons" to do so. As a matter of general constitutional principle, it is desirable for amendments to primary legislation to be made by way of a bill, to maximise opportunities for detailed parliamentary scrutiny. A number of factors might be considered "compelling" in favour of the Remedial Order process, including the need to avoid undue delay in removing breaches of the Convention, the impact of the violation on affected individuals and the legislative timetable.[16]

17. The Government considers the following reasons sufficiently compelling to justify the use of the Remedial Order process:

  • there is no available space in the current legislative programme for legislation to deal with this issue;
  • any issue relating to discrimination should be dealt with "swiftly"; and
  • there has already been some delay in the implementation of the Government's response to this declaration of incompatibility.

18. This issue has been outstanding without remedy for 4 years. We agree with the Government's view that it is undesirable for the delay in this case to continue. Although the Government would have preferred to proceed by primary legislation, they state that there is no obvious space in the current or imminent legislative programme for this issue to be considered. In our view, the discriminatory basis of the violation, the delay in this case and the significant number of people who continue to be affected by this scheme annually (around 24,000 applications for Certificates of Approval were made in 2009)[17], justify the use of the Remedial Order process. We consider that the reasons given by the Government for using the Remedial Order process in this case are clearly capable of being "compelling reasons" for the purposes of Section 10(2) HRA 1998. In our view they are sufficiently compelling to justify proceeding by way of Remedial Order in this case.

SCOPE OF THE PROPOSAL

19. The Minister's power to make a Remedial Order extends to any changes to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 "he considers necessary to remove the incompatibility".[18] He may also make such incidental, consequential or transitional provisions he considers appropriate. This includes amendments to other primary or secondary legislation.[19] We address two issues about the scope of the draft Order below.

Abolition or extension?

20. The simplest means of remedying the incompatibility in this case would be to remove the discrimination in violation of Article 14 ECHR by extending the Certificate of Approval scheme to Church of England marriages. As outlined above, the previous Government spent a significant time considering how this approach might be achieved before determining that this would not be possible and that abolition of the entire scheme should be proposed by Remedial Order. We must ask whether abolition of the Certificate of Approval scheme—as opposed to its extension—is "necessary to remove the incompatibility" declared in Baiai v Secretary of State for Home Affairs.

21. In the required information, the Government explains the reason they consider that this approach is necessary as follows:

Given the difficulties in finding a satisfactory way of removing the incompatibility and concerns about the effectiveness of the scheme, the Government has decided that the only appropriate course of action in these circumstances is the removal of the Certificate of Approval scheme.

22. Neither the EHRC nor ILPA express any view on whether it is necessary to repeal the scheme to secure the incompatibility, but both are supportive of this approach. The EHRC explains:

The declaration of incompatibility in Baiai was made because the marriage certificates of approval scheme operated in a discriminatory fashion against all those who were not members of the Church of England. In abolishing the Section 19 scheme, the Remedial Order does remove the incompatibility identified by the courts...In the Commission's view, the terms of the draft order are adequate to meet the task it seeks to do. However, we await information from the Government on any proposals it intends to introduce to replace the discontinued scheme.[20]

23. The required information does not explain what measures the Government intend to take to meet the original policy objective of the scheme. This was identified during the passage of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 as the need to prevent individuals using "sham" marriages to evade immigration control in the United Kingdom.[21] The Government explain that they have reviewed the effectiveness of the scheme in the light of modifications made as a result of the judgment of the House of Lords. They take the view, in the light of this review, and the failure to secure a means to extend the scheme, that abolition is necessary to remove the violation of Convention rights in this case

24. We consider, in the light of the delegated nature of the Remedial Order process, that we must scrutinise closely whether the approach proposed by Government is necessary. There are only two alternatives in this case which will remedy the incompatibility. The first is extension and the latter is abolition. Given that the latter option is broader than the first, we consider that the Government has an obligation to justify its approach. In this case, the previous Government spent four years attempting to find a politically and legally acceptable means of extending this scheme to Church of England marriages and failed. Applicants under the Certificate of Approval scheme continue to be treated less favourably than Church of England members without justification. This discriminatory impact continues to affect a significant number of people and the Government has explained that modifications to the scheme - made to introduce human rights safeguards - mean that it is no longer as effective in meeting its objectives as the previous Government had hoped. Against this background, we consider that it is necessary to abolish the Certificate of Approval scheme in order to remove the incompatibility identified by the domestic courts in Baiai v Secretary of State for Home Affairs.

25. This judgment has been a finely balanced one, made on the basis of the information provided by the Government about the efforts of the previous Government to secure compliance by extending the scheme and on the continuing impact of the scheme on people affected. It remains our view that the Government should take a proactive approach to their responses to adverse human rights judgments, which should generally be designed to secure the rights of individuals affected by removing the incompatibility entirely and ensuring that future violations are avoided. However, when Ministers propose to use the Remedial Order process, they are required to show that their approach is "necessary" in the terms defined in the HRA 1998 and must justify their proposals. Where there are alternative means to remove an incompatibility with Convention rights, the Minister must show why the Government's approach is necessary and should give evidence why obvious alternatives are not. In a case such as this, where there appears to be a narrower approach possible, relevant factors will include: (a) steps taken to secure the alternative, narrower, approach; (b) the breadth of the Government's proposal and justification for it; and (c) whether the Government's approach will adversely affect a human rights enhancing measure or a measure which has human rights enhancing effects, despite the incompatibility concerned.

26. The Secretary of State for the Home Department has made clear that the Government intend to revisit policies on immigration, and, specifically, on sham marriage.[22] As a first step, the Government have introduced changes to existing immigration rules which introduce new language requirements for individuals travelling to the UK for the purposes of marriage.[23] In its evidence, ILPA told us that this proposal also raises human rights concerns, in so far as an English language test will have a disparate impact on people from non-English speaking countries and may discriminate on the grounds of nationality or race.[24] We have no further information on how the current Government intends to meet the original policy intentions of the Certificate of Approval scheme, which was designed to prevent individuals using marriage to evade immigration controls. We are satisfied that the proposal for a Remedial Order meets the statutory requirements stipulated by HRA 1998. However, in the light of the broader approach taken by the Government, we are concerned that Parliament should have certain additional information in order to help inform the decision of both Houses whether to approve the Order, and our decision as a Committee on whether approval should be recommended. In this case, we recommend that any draft Order repealing the Certificate of Approval scheme is accompanied by an explanation by the Government of any steps it intends to make to meet the original policy intention of the scheme. This information should include existing and planned measures or policy intentions and an explanation of the Government's view that those measures will be effective, proportionate and compatible with the human rights obligations of the United Kingdom.

Extension to civil partnerships

27. Although the original declaration of incompatibility in this case extends only to the Certificate of Approval scheme as it applied to civil marriages, the scheme was extended to civil partnerships after their introduction in the Civil Partnerships Act 2004. The Explanatory Notes explain that the draft Order contains consequential amendments to abolish the scheme in so far as it applies to civil partnerships:

The Order will end the Certificate of Approval scheme in relation to civil partnerships in order to ensure that the obligation to obtain permission from the Secretary of State under the scheme does not remain in place for civil partnerships when it will not apply to marriages.

28. Since civil partnerships do not take place outside the civil process, there is no parallel exemption for Church of England proceedings in the Civil Partnerships Act 2004. In this way, the declaration of incompatibility could arguably be remedied without amendment to the Civil Partnerships Act 2004.

29. Our predecessor Committee was required to consider a similar issue in its Report on the draft Marriage Act 1949 (Remedial) Order 2006. In that case, the Government did not include consequential provision in the draft Order to deal with civil partnership since the underlying incompatibility related to the right to marry (Article 12 ECHR), which the Government did not accept extended to civil partnership. Our predecessors concluded that this approach proposed an overly narrow interpretation of the HRA 1998:

Omitting [the repeal of the provisions in the Civil Partnership Act 2004] would in our view have given rise to a new risk of incompatibility with Convention rights because it would have introduced a difference of treatment between marriage and civil partnership which would require justification...we consider [the Government's view that it cannot repeal these provisions by remedial order] to be based on too narrow an interpretation of the power to make incidental, supplemental or consequential provision.[25]

30. If the scheme were to remain in place, it is our view that the relevant provisions of the Civil Partnerships Act 2004 would most likely be open to a further declaration of incompatibility on the grounds that the application of the scheme to civil partnerships, but not civil marriages, was incompatible with the right to enjoy respect for private and family life (Article 8 ECHR) without discrimination (Article 14 ECHR). Against this background, we recommend that the inclusion of provision to abolish the Certificate of Approval scheme in so far as it extends to civil partnerships is an appropriate consequential amendment. This wider approach is necessary in our view to avoid further violations of Convention rights and is an appropriate use of the power to make incidental, supplemental or consequential provision in paragraph 1(1)(a) of Schedule 2 of the HRA 1998, which is expressed in very broad terms.

REMEDYING THE INCOMPATIBILITY

31. In our view the repeal of the Certificate of Approval scheme proposed in the draft Asylum and Immigration (Treatment of Claimants etc) Act 2004 (Remedial) Order 2010 would remedy the incompatibility identified in Baiai v Secretary of State for the Home Department.

REQUIRED INFORMATION AND INFORMATION PROVIDED TO THE COMMITTEE

32. Our staff received draft copies of the proposal and the required information shortly before the proposal was laid before Parliament on 26 July 2010, shortly before the summer recess. The Government is required to provide information relating to the incompatibility to which its proposed draft Order relates and a statement of its reasons for proceeding under the Remedial Order process.[26] We are satisfied that the Government has provided the information required by the HRA 1998. Subject to a few concerns raised below, we welcome the full and timely information provided by the Government.

USE OF THE NON-URGENT PROCEDURE

33. The Government propose to use the non-urgent procedure for this Remedial Order. The Explanatory Memorandum explains that while the Government acknowledges that "a significant number of people are still affected by the incompatibility":

  [T]he limited nature of the burden now imposed by the Certificate of Approval   scheme, following steps taken to diminish its impact, mitigates against its use of   the urgent Remedial Order process.

34. It goes on to explain that:

We have alleviated the effect of the incompatibility by suspending the application fee payable under the Certificate of Approval scheme in April 2009. Those who applied for a Certificate of Approval between 2005 and 2009 may be eligible for the repayment of the fee paid, if they can show that paying the fee caused real financial hardship at the time of payment....This formal ex-gratia repayment scheme comes to an end on 31st July 2010.

35. The previous JCHR set a number of criteria for its consideration of whether an urgent or non-urgent Remedial Order would be appropriate. These were:

  • The significance of the rights which are, or might be affected by the incompatibility;
  • The seriousness of the consequences for identifiable individuals or groups allowing the continuance of an incompatibility with any right;
  • The adequacy of compensation arrangements as a way of mitigating the effects of the incompatibility;
  • The number of people affected;
  • Alternative ways of mitigating the effect of the incompatibility pending amendment to primary legislation.[27]

36. In the light of the reading down of Section 19 by the House of Lords and the suspension of the fees applicable for a Certificate of Approval, the Government correctly identify that the impact of the scheme has been mitigated to a significant degree. The continuing impact of the scheme on those who are not exempt because they do not qualify for the discriminatory exemption offered to those able to undertake Church of England marriages is key to whether the non-urgent or urgent procedure should be used.

37. As our predecessor noted in its Report on the last Remedial Order, interferences with the right to marry (in this case, discrimination in access to the right to marry) is an example of the type of incompatibility which could have serious consequences for an individual's private life and personal and moral integrity. The impact on those individuals required to apply for a Certificate of Approval will vary greatly. All applicants will experience a personal impact in relation to the requirement to have one's decision to marry officially approved as genuine. If approval is granted, those applicants may have to delay their marriage as a result of time taken to process an application. If approval is refused, the impact will clearly be more serious, in that the individual and his or her partner will not be permitted to marry in the UK. In the light of the announcement that the scheme will be repealed individual plans for marriage may be on hold, awaiting the end of the scheme.

38. Unfortunately, the Explanatory Memorandum does not give any information on the application of the scheme after the decision of the House of Lords (for example, what guidance has been issued on the scheme; how many Certificates of Approval have been refused and how long it takes to process applications for Certificates of Approval). The Committee requested this information in a letter to the Minister and received a prompt response. This correspondence is published with this Report.[28]

39. The Government correctly explains that "a significant number of people" continue to be affected by the incompatibility. In his letter the Minister identifies that 24,042 applications for a Certificate of Approval were received in 2009 and a further 23, 052 were made between January and September 2010. Although the time taken to process an application subsequent to the guidance of the House of Lords appears to have increased (from an average of 32 days in 2007 and 36 days in 2008 to 50 days in 2009 and 65 days in 2010), the average time taken to process applications remains relatively low. We were concerned to read however that the longest time taken to process an application following the House of Lords' judgment was 366 days. Approval was granted in this case. Of the significant number of applications, a relatively low number of cases are refused. In 2009, of 24,042 applications, 1,517 were refused (around 6.3%). In 2008, around 3.9% of applications were refused.

40. We also asked whether individuals were removed from the UK while their applications were pending. The Minister explained that enforcement action was considered separately from applications for Certificates of Approval to marry. Since April 2008, 28 applicants (from 47, 926 applications since July 2008) have been removed before their application has been determined. While each of those removals will have an obvious personal impact on the applicant and his or her partner, there appears to be a relatively low risk that individuals will be removed while awaiting approval to marry.

41. Subject to concerns expressed below about earlier delay in this case, it is our view that the use of the non-urgent process in this case strikes a reasonable balance between the need to remedy the violation without any further delay and the need for effective parliamentary scrutiny. We welcome the Government's decision to use the non-urgent procedure.

TECHNICAL ISSUES: DRAFTING

42. We have raised a single, minor drafting issue with officials. Article 2(3) of the draft Order proposes to repeal Section 25 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 for "all remaining purposes". The draft Order explains that Section 25 was previously repealed by Section 50(3)(2) of the Immigration Asylum and Nationality Act 2006. That provision was brought into force by a commencement order[29] which included a savings clause for the purposes of maintaining the power of the Secretary of State to make regulation in relation to the Certificate of Approval scheme. The savings clause provides:

The repeal by this Order of section 25 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 shall not affect the power of the Secretary of State to make regulations [which relate to the Certificate of Approval scheme][Emphasis added]

43. On our reading of this provision, in order to have the intended effect, the draft Order could repeal the relevant savings clause. Similar savings are made for the Isle of Man by Order in Council, which for the sake of completeness, should also be repealed.[30] In the interests of completeness, we consider that the draft could be amended to provide for the repeal of Article 6 of the Immigration and Asylum and Nationality Act 2006 (Commencement No 6) Order 2007 and the equivalent savings clauses for the Isle of Man in Immigration (Isle of Man) Order 2008. We have drawn this drafting issue to the attention of officials and Parliamentary Counsel. Subject to this minor technical concern, we recommend that the draft Order should be laid before both Houses for their consideration as proposed.





6   [2006] EWHC 1454, [2008] UKHL 53. Back

7   [2006] EWHC 1454, [2008] UKHL 53. In 2008, the House of Lords clarified that the declaration of incompatibility was limited to Section 19(1) and the discriminatory exemption of Church of England marriages from the scheme. Back

8   Ibid, para 32. Back

9   Ibid, para 30. Back

10   Ibid, para 31. Back

11   HRA 1998, Schedule 2, para 1(1)(a).  Back

12   Sixteenth Report of Session 2005-06, Proposal for a Draft Marriage Act 1949 (Remedial) Order 2006, HL Paper 154, HC 1022; Twenty-ninth Report of Session 2005-06, Draft Marriage Act 1949 (Remedial) Order 2006, HL Paper 248, HC 1627; Ninth Report of Session 2003-04, Naval Discipline Act 1957 (Remedial) Order 2004, HL Paper 59, HC 477. Back

13   Fifteenth Report of Session 2009-10, Enhancing Parliament's role in relation to human rights judgments, HL Paper 85, HC 455, Annex 1, paras 22-23; Seventh Report of Session 2001-02, Making of Remedial Orders, HL Paper 58, HC 473. Back

14   See for example, Sixth Report of 2001-02, Mental Health Act 1983 (Remedial) Order 2001, HL Paper 57, HC 472, para 18. Back

15   Standing Order 152B, House of Commons Standing Orders, April 2010 and Standing Order 73, House of Lords Standing Orders 2010. Back

16   Seventh Report of Session 2001-02, The Making of Remedial Orders, HL Paper 58, HC 473, paras 32-33. Back

17   Ev 2. Back

18   HRA 1998, Section 10(2). Back

19   HRA 1998, Schedule 2, para 1(1) - (2). Back

20   Ev 2 (Vol. II). Back

21   HL Deb, 15 June 2004, Cols 682-685. Back

22   See for example, BBC News Online, Theresa May pledges immigration abuse crackdown, 5 November 2010. Back

23   Migrants marrying UK citizens must now learn English, Home Office, Press Notice, 9 Jun 2010; Statement of changes in immigration rules, Cm7944, 1 October 2010. Back

24   Ev 1 (Vol. II). Back

25   Sixteenth Report of 2005-06, Proposal for a Draft Marriage Act 1949 (Remedial Order) 2006, HL 154/HC 1022, para 31. Back

26   Paragraph 3(1)(a) of Schedule 2, HRA 1998. Schedule 2(5) provides that required information means "(a) an explanation of the incompatibility with the order (or proposed order) seeks to remove, including particulars of the relevant declaration, finding or order, (b) a statement of the reasons for proceeding under section 10 and for making an order in those terms." The required information provided by the Government was laid before Parliament together with its draft proposal.  Back

27   Seventh Report of 2001-02, The Making of Remedial Orders, HL 58/HC 473, paras 36 - 37. Back

28   Ev 1 and 2. Back

29   The Immigration, Asylum and Nationality Act 2006 (Commencement No 6) Order 2007, SI 1109/2007. Back

30   Article 18, Schedule 8(9), S.I. 2008/680. Back


 
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