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

3  Other matters arising

The making of remedial orders


44. When the JCHR scrutinised Section 19 during the passage of the 2004 Act, it concluded that:

  • there was 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;"
  • 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"; and
  • that there was 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".[31]

45. The then Government rejected the JCHR's conclusions. The JCHR continued to report on this issue on a number of occasions.[32] Most recently, our predecessor JCHR noted the commitment of the previous Government to deal with this incompatibility by introducing a Remedial Order to repeal Section 19 and end the Certificate of Approval scheme. The Committee called on the Government to publish its preparatory work towards the draft Remedial Order, regretting that delay on its part had ruled out a remedy before the general election.[33]

46. Although we welcome the use of the non-urgent remedial order in this case, we are disappointed with the degree of delay in reaching this point. Between 2006 and 2008, the previous Government negotiated with the Church of England over a separate plan to extend the scheme to Church of England marriages, in order to remove the incompatibility. The Church of England successfully persuaded the Government to wait for the outcome of the House of Lords decision on the wider operation of the scheme before extending it to remove the discriminatory exemption. It argued that the administrative costs of extending the scheme would be wasted if the House of Lords determined that the scheme itself was incompatible with the Convention and the Government consequently decided to scrap the scheme. Our predecessor Committee noted that the Government appeared to have taken the decision to await the appeal in the House of Lords without any clear consideration of the ongoing impact of the violation on those affected by it.[34] In January 2009, some time after the decision of the House of Lords, the then Government informed our predecessors that they were considering the way forward in light of the House of Lords' comments on the wider operation of the scheme.[35] The Committee asked for further information in May 2009. The Government failed to respond to this request until November 2009, when it decided that a Remedial Order would propose abolition of the entire scheme. In March 2010, our predecessors regretted that delay had meant that no Remedial Order would be introduced in the last Parliament.[36]

47. As we have noted above, the legal steps proposed in the draft Order are not complex. As we explain above, we consider that it was acceptable for the Government to spend some time consulting on how to extend the scheme to remove the discrimination. We are doubtful whether it was appropriate not to seek to remedy the incompatibility during the two years between the making of the original declaration of incompatibility and the decision of the House of Lords. Equally, a further two years have passed since the decision of the House of Lords in 2008. Since that time, the Government has received 47,926 individual applications under the discriminatory Certificate of Approval scheme. While we welcome the Government's decision to introduce a Remedial Order in this case, and its decision to use the non-urgent procedure, we regret the earlier delay in remedying the incompatibility.


48. As we have noted above the information provided by the Government complies fully with the technical requirements of the HRA. However, we raise two concerns below about the process of making remedial orders and the involvement of our Committee.

Clear information and guidance for officials

49. Unfortunately, we were first alerted to the Order and its timing when the legal staff of the Joint Committee on Statutory Instruments (JCSI) was sent advance drafts of the proposal by Home Office officials. While the JCSI would ordinarily report on the propriety of other delegated legislation, it has no role in relation to Remedial Orders and contacted our legal team. We are disappointed that 10 years after the HRA came into force, Government officials working on Remedial Orders are not aware of the role of the JCHR in relation to such orders, or our predecessor Committees' guidance on their parliamentary scrutiny. We recommend that any Departments considering use of the Remedial Order process consult this Committee's guidance on the making of Remedial Orders. We recommend that any formal guidance produced by the Government on the issue of responding to adverse human rights judgments incorporates this guidance and encourages officials working on any proposals for Remedial Orders to contact the staff of the JCHR at an early stage.

Information on the continuing impact of incompatibility

50. We asked for further information on the continuing impact of the scheme, including the number of applications made, approved and refused; the time taken to process applications and the number of individuals removed from the UK while their applications were pending. Although this information was provided speedily by the Minister, this information was essential to allow us to take a considered view on the need for the use of the Remedial Order process and whether the non-urgent procedure was adequate in this case. Subject to this shortcoming, we welcome the engagement of the Minister and the officials working on this proposal with our work. However, full information on the ongoing impact of a violation subject to a proposal for a Remedial Order, including any relevant statistical information, should always be included with the required information prepared. This may reduce the need for further unnecessary correspondence between the Committee and Ministers and may allow our Report on a proposal to be published at an earlier stage.


51. A challenge to the Certificate of Approval scheme is currently pending consideration by the European Court of Human Rights in the case of O'Donoghue v UK. The previous Committee asked the Minister for further information about the Government's approach to this case, in light of the expected Remedial Order. The Government refused to comment on individual cases. A number of arguments raised in this case are broader than the incompatibility identified by domestic courts in the Baiai v Secretary of State for the Home Department. The applicants in O'Donoghue are a couple and their children who are affected by the Certificate of Approval scheme. The first applicant is an Irish citizen and the second applicant is her fiancé, a Nigerian national. The third and fourth applicants are their children. Each of the applicants are of the Roman Catholic faith. They argue that the operation of the Certificate of Approval scheme violates their right to marry (in breach of Article 12 ECHR); that it interferes with their right to respect for private and family life (Article 8 ECHR) and their right to respect for their religion (Article 9 ECHR). They argue that the scheme discriminates against them in their enjoyment of those Convention rights (Article 14 ECHR) and that they have been denied their right to an effective remedy for the violation of their rights as the declaration of incompatibility in this case is not an effective remedy for Convention purposes (Article 13 ECHR). A significant number of applications against the UK are awaiting the result in this case, which the Court may treat as a pilot judgment.[37] We note the ongoing litigation in this case. We recommend that the Government should accept any ECtHR suggestion to treat this case as a pilot judgment. We call on the Government to proactively consider mechanisms to respond to pending applications in clone cases should the applicant in O'Donoghue be successful.

52. The Government explain that an ex-gratia scheme for compensation for those who suffered real financial hardship as a result of fees levied as part of this scheme operated between July 2009-July 2010. This scheme was limited to those who could provide evidence of hardship. In its evidence the Immigration Law Practitioners Association comments that this test was difficult to satisfy. The scheme only related to actual financial hardship caused by the imposition of fees connected with the scheme and did not relate to compensation for any harm caused by the violation of the rights of applicants by the scheme. The domestic courts did not award any compensation under the HRA 1998. It remains open to the ECtHR to award just satisfaction - compensation - to the applicants in O'Donoghue on a wider basis than the ex-gratia scheme. We note that the proposal for the draft Remedial Order makes no provision for compensation for those affected by the violation identified in this case. In the past, predecessor Committees have recommended that amendments be made to ensure that Remedial Orders adequately compensate individuals adversely affected by violations of the Convention.[38] In the light of the judgment of the domestic courts, and the operation of the limited ex-gratia scheme in this case, we recommend that the proposed draft Order is tabled despite the lack of provision for further compensation. However, we note the ex-gratia scheme did not compensate for the impact of the discriminatory application of the scheme, as opposed to hardship caused by the fees imposed. The Government should consider how to proactively manage any applications for further compensation should the applicants in O'Donoghue be awarded just satisfaction. Innovative thinking should be encouraged to avoid adding to the backlog of cases at the ECtHR, particularly in clone cases where applicants simply seek a repetitive decision and an award of just satisfaction.

31   Fourteenth Report of 2003-04, The Asylum and Immigration (Treatment of claimants etc) Bill, HC 828/ HL 130, paras 36-76.  Back

32   Sixteenth Report of 2006-07, Monitoring the Government's response to court judgments finding breaches of human rights, HL Paper 128/HC 728, paras 135 - 136; Thirty-first Report of 2007-08, Monitoring the Government's response to human rights judgments: Annual Report 2008, HL Paper 173/HC 1078, paras 96 - 106. Back

33   Fifteenth Report of 2009-10, Enhancing Parliament's role in relation to human rights judgments, HL 85/HC 455, paras 151 - 152. Back

34   Thirty-first Report of 2007-08, Monitoring the Government's response to human rights judgments: Annual Report 2008, HL Paper 173/HC 1078, para 106. Back

35   Fifteenth Report of 2009-10, Enhancing Parliament's role in relation to human rights judgments, HL 85/HC 455, paras 146. Back

36   Ibid, para 151-152. Back

37   A pilot judgment is a case where the ECtHR identifies that a new issue of law is being decided, where a significant number of cases might arise, following a decision in the lead case. The Court designates the lead case a pilot judgment, then suspends progress in the repeat applications, with more detailed recommendations to the State on the steps which it must take to remove the violation domestically. For more information, see Thirty-first Report of 2008-09, Monitoring the Government's Response to Human Rights Judgements: Annual Report 2008, HL 173/HC 1078, paras 122 - 124.  Back

38   Sixth Report of Session 2001-02, Mental Health Act 1983 (Remedial) Order 2001, HL Paper 57, HC 472, para 19 - 29. Back

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