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


Written Evidence


1. Letter from the Committee Chair, to the Rt Hon Theresa May MP, Home Secretary, 9 September 2010

The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Remedial) Order

The JCHR is required to report to both Houses on every remedial order produced pursuant to Section 10 of the Human Rights Act 1998. I am grateful to your officials for providing our Committee Secretariat promptly with a copy of the draft proposal for a Remedial Order which was published on 26 July 2010, together with the Government's Explanatory Memorandum and the information which the Government is required to submit to Parliament under the HRA 1998. We intend to report on the draft proposal within 60 days of its publication and I enclose a copy of our call for evidence issued today.

The draft proposes to repeal Section 19 Asylum and Immigration (Treatment of Claimants, etc) Act 2004, in so far as it prohibits people subject to immigration control marrying without prior authorisation, other than in a Church of England ceremony. This aims to provide remedy for a violation of Convention rights first identified by the domestic courts in 2006, over four years ago. The required information provided with the Explanatory Memorandum explains the Government's view that non-urgent process is appropriate in this case:

[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.

We would be grateful for further information about the ongoing operation and impact of the Certificate of Approval scheme in order to allow us to assess whether the non-urgent procedure is appropriate in this case. In particular:

What guidance has been issued on the operation of the scheme, after the decision of the House of Lords in Baiai [2006] UKHL 53, to ensure that authorisation is not refused in cases which "unreasonably inhibit exercise of the applicant's rights under Article 12 of the European Convention"?

Please could you provide information about the time taken to process applications for approval (a) on average; and (b) the longest time taken, for both (a) approvals prior to the decision of the House of Lords and (b) decisions taken after the House of Lords judgment.

How many applications for authorisation have been received since the decision of the House of Lords? How many such applications have been (a) granted and (b) refused?

Please provide us with details on UK Borders Agency policy on removals after an application for authorisation pursuant to Section 19 has been received, if any such policy exists.

How many people, if any, have been subject to removal between submitting an application for approval and a decision on the application?

It would be helpful if we could receive your reply by 8 October 2010. I would also be grateful if your officials could provide the Committee secretariat with a copy of your response in Word format, to assist publication.

9 September 2010

2. Letter from Mr Damian Green MP, Minister for Immigration, Home Office, to the Committee Chair, 30 September 2010

Re: Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Remedial) Order

Thank you for your letter of 9 September seeking information about the ongoing operation and impact of the Certificate of Approval (COA) scheme.

First, I should like to extend my congratulations and good wishes on your appointment as Chair of the Joint Committee on Human Rights. As our Coalition Agreement sets out, the Government is committed to the European Convention on Human Rights (ECHR) and to ensuring that the rights flowing from it continue to be enshrined in British law. I look forward to developing a constructive working relationship with the Committee and am pleased to hear that my officials have supplied you with prompt information about the above remedial order. We look forward to receiving the Committee's report on the draft proposal so that we can remedy the scheme's incompatibility with the ECHR at the earliest opportunity.

I note you are seeking further information about the ongoing operation and impact of the COA scheme so that the Committee can assess whether the non-urgent remedial order procedure is appropriate in this case.

As you know, we acknowledge that a significant number of people are affected by the incompatibility. However, the significance of rights which are or might be affected by the incompatibility, and the impact of the scheme on individuals, have been carefully considered against the need to legislate in an open and transparent manner that allows appropriate opportunity for debate and discussion. While there are compelling reasons to proceed by way of Remedial Order, we believe the limited nature of the burden now imposed by the COA scheme, following steps taken to respond to the judgments in the domestic courts, mitigates against the use of the urgent Remedial Order process.

The continuing incompatibility does not prevent a person from marrying or founding a family. Those who are subject to the COA scheme can still marry; they simply need to apply for a COA from the Secretary of State. We responded to the House of Lords' comment that a fixed fee could interfere with the right to marry in respect of needy applicants by suspending the fee payable under the scheme in April 2009. We subsequently removed the fee for an application for a COA to marry or enter into a civil partnership from the Immigration and Nationality (Cost Recovery Fees) Regulations 2010 (SI 2010/228). In addition, we implemented a fee repayment scheme which meant that those who applied for a COA between 2005 and 2009 could apply for and receive repayment of the fee, if they could show that paying it caused them real financial hardship. The repayments were made as part of an ex-gratia repayment scheme which began on 31 July 2009. The fee repayment scheme was publicised via the UK Border Agency website and ran for one year, coming to an end on 31st July 2010.

1. Guidance

I enclose at Annexes (i) [39] and (ii) [40] copies of guidance issued on the operation of the COA scheme after the decisions in the domestic courts in Baiai which are relevant to the consideration of the potential impact on Article 12 (the right to marry) in making decisions about COAs. Annex (i) is an instruction from 2006 issued following the High Court judgment in that year. Annex (ii) is an instruction from 2007 issued following the Court of Appeal judgment in that year. The Committee may also find it helpful to have sight of guidance issued in 2009 at Annex (iii)[41] about the suspension of the COA fee and at Annex (iv)[42] in relation to operation of the scheme for return of COA fees.

The 2007 process instruction was amended in March 2010 to reflect a change in procedure and again in August 2010 in the light of issues raised by a convicted rapist who was seeking to marry an EEA national to prevent deportation. The guidance relating to those 2010 changes identified various factors that might indicate that intended marriage is one of convenience and thus provided assistance in deciding which cases required further investigation. However this information is not currently in the public domain and disclosure in the public domain would in our view prejudice the operation of our immigration controls. This is because disclosure may enable potential immigration offenders to obtain detailed information on our risk assessment methodology.

It may also enable potential immigration offenders to circumvent the system. This is clearly not in the public interest; whereas there is a public interest in ensuring the integrity of the United Kingdom's immigration controls. We are prepared to disclose the relevant information to the Committee in confidence subject to agreement that the guidance will not be published by the Committee.

As the various iterations of the guidance demonstrate, the UK Border Agency has continued to take steps to ensure that while the scheme remains in operation the Agency's processes take account of the issues highlighted by the domestic courts in considering Baiai in particular ensuring that actions are targeted against those suspected of seeking to engage in a sham marriage.

2. Processing times

The average time taken to process applications for a COA (by year) is as follows:—
Calendar Year Number of applications received Number of COAs issued Number of COAs refused Average Processing Time
200513,865 9,7252,092 Average of 21 days
200617,955 14,5691,024 Average of 24 days
200717,316 14,518409 Average of 32 days
200818,720 16,114734 Average of 36 days
200924,042 19,8351,517 Average of 50 days
1 January to 23 Sept 2010 23,05213,749 876Average of 65 days

The information has been derived from local management information and is not a National Statistic. As such it should be treated as provisional and therefore subject to change.

The individual applications for COAs which have taken the longest to process involve criminality and a failed asylum seeker.

The longest time taken to process a COA application received prior to the decision in the House of Lords (pre 30 July 2008) was 1126 days. This case involved a convicted criminal. The application was refused as the applicant did not respond to enquiries. He did not challenge the refusal and is currently being considered for enforcement action.

The longest time taken to process an application for a COA received after the House of Lords judgment was 366 days.

This case involved a failed asylum seeker who had previously claimed asylum in another country. A COA was granted in this case.

3. Number of applications

The number of applications for a COA received since the decision of the House of Lords in 30 July 2008 are detailed below. The figures are correct as at 16 September 2010.

COA applications received since House of Lords decision on 30 July 2008
Number of COA applications received since 30 July 2008 47,926
Number of COA applications issued since 30 July 2008 37,282
Number of COA applications refused since 30 July 2008 2,209
Number of COA applications currently under consideration 8,500

The information has been derived from local management information and is not a National Statistic. As such it should be treated as provisional and therefore subject to change

To understand the processing figures in context one must recognise the significant increase in applications for COAs (and the consequent increase in processing times) which resulted from the modifications made to the scheme following the judgments handed down in relation to it by the domestic courts.

The following events led to increases in COA applications:—

  • Following the High Court judgment in Baiai on 10 April 2006 which made a declaration of incompatibility in respect of both Article 12 and Article 14 of the ECHR we issued new guidance in August 2006. The revised COA scheme allowed applicants with some valid leave to enter or remain but insufficient leave to qualify for the original scheme to be granted a COA, provided the Secretary of State was satisfied the marriage was genuine. Applicants with no leave to enter or remain still could not apply for a COA. This led to an increase in applications.
  • In August 2006 guidance was modified so in some cases we requested affidavits. This also slowed down the time taken to process cases since it takes time to write out for an affidavit and time for it to be returned.
  • Following the Court of Appeal judgment in the cases of Baiai on 23 May 2007 that immigration status was irrelevant to the genuineness of the proposed marriage, we issued new guidance on 1 July 2007 which allowed applicants without valid leave to enter or remain. This meant overstayers, failed asylum seekers, illegal entrants, etc could apply for a COA. This led to an increase in applications. The number of applications from those with limited or no leave went up.
  • In handing down the judgment on 30 July 2008 in the case of Baiai the House of Lords observed that the Certificate of Approval fixed fee of £295 was too high because a fee at fixed level which a needy applicant cannot afford might impair their right to marry (ECHR Article 12). Their Lordships did not proceed to rule on that point. However, with effect from 9 April 2009, the UK Border Agency suspended the fee for COA applications in order to reflect the House of Lords judgment. The suspension of the fee also led to a significant increase in applications (a 28% rise in 2009).

Despite this rise in applications, the UK Border Agency has been proactive in trying to speed up processing times. They have introduced a screening process to better identify those cases where a sham marriage is suspected and only request affidavits in those cases. This targeting of cases is in line with court judgments in Baiai.

Notwithstanding the delays in processing some cases, we do not consider that the time taken to process a case interferes with the right to marry under Article 12 of the ECHR. In our view, the current average processing time of 65 days (just over two months) does not represent an interference with the right to marry. Following the High Court's judgment in 2006, it is also important that the UK Border Agency give proper scrutiny to cases to ensure that they consider carefully the genuineness of the relationship. Each application is investigated and a COA is only refused where there are reasonable grounds for suspecting that the proposed union will be a sham. It is also not unusual for genuine wedding arrangements to involve lengthy preparations. Two months is not a significant time period in that context.

Whilst your letter refers to the operation of the scheme in relation to Article 12, as you will be aware the House of Lords amended the declaration of incompatibility made by the High Court to make it clear that the declaration of incompatibility with the ECHR was directed solely at the discrimination between civil and Anglican preliminaries to marriage i.e. the declaration related to section 19(1) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 rather than section 19(3). The Remedial Order seeks to remedy this incompatibility with Article 14 of ECHR by abolishing the Certificate of Approval scheme. Accordingly, we would submit that it is the incompatibility with Article 14 (discrimination against non-Anglicans who need to apply for a COA) which is relevant to assessing whether the non-urgent procedure is appropriate in this case.

4. Removals policy

UKBA only enforces removal where there are no barriers to removal (such as an outstanding application for leave) and before doing so would have due regard to any extenuating circumstances raised. Guidance for staff in this area is contained in Chapter 53 of the published Enforcement Instructions and Guidance. This guidance can be provided to the Committee in full if required. An application for a COA is not in itself considered a barrier to a removal.

Numbers subject to removal

You requested data on how many people, if any, have been subject to removal between submitting an application for a Certificate of Approval and a decision on the application. Please find below the numbers of removals where a COA has been applied for and how many people were removed before the outcome of their COA application.

Certificate of Approval for Marriage and Civil Partnership cases that have been removed since the date of COA application
Financial Year Apr 08 to Mar 09 Apr 09 to Mar 10 Apr 10 to 24 September 10*
No of Removals
165
620
3
No removed before outcome of application
2
5
0

The information has been derived from local management and is not a National Statistic. As such it should be treated as provisional and therefore subject to change. *The data is correct up to 24 September when the data was run.

Statistics on the numbers of COA cases that have been removed during the period 2005-April 2008 are not readily available and due to the high volume of data are taking some time to compile. My officials will write to you separately, as soon as possible with this data.

O'Donoghue v United Kingdom

The Committee wanted to be informed of progress in the case of O'Donoghue v United Kindgom. The Committee may wish to be aware that this case remains ongoing and there is no judgment at present, although we understand from the Court that a judgment may be given before the end of the year.

30 September 2010

3. Letter from Helen Sayeed, Permanent Migration Team, UK Border Agency, to the Committee Clerk, 6 October 2010

Please find attached a word version of the Minister for Immigration's letter of 30 September to the Chair of the Joint Committee on Human Rights.

The Chair of the Committee had requested data on the number of people subject to removal between submitting an application for a Certificate of Approval and a decision on the application. The Minister for Immigration provided data for the period April 2010 to September 2010. Statistics for the period April 2006 to April 2008 are now provided below. Unfortunately removals data prior to 1 April 2006 is not available and we are therefore unable to provide numbers for the period from 2005 to April 2006.

Please also note that numbers for the period April 2010 to September 2010 have been revised to take into account those who applied for a Certificate of Approval prior to April 2008. A person who had made a Certificate of Approval application in 2007 and had been removed in 2009 would not have shown up in the earlier statistics because all the relevant data had not yet been analysed. Updated statistics are now set out below. I would be grateful if you could please forward this information to the Chair.

Certificate of Approval for Marriage and Civil Partnership cases that have been removed since the date of COA application
Financial Year Apr 2006-Mar 2007 Apr 2007-Mar 2008 Apr 2008-Mar 2009 Apr 2009-Mar 2010 Apr 2010-30 Sep 2010*
No of Removals
218
388
510
862
87
No removed before outcome of COA application
11
9
7
15
6

The information has been derived from local management information and is not a National Statistic. As such it should be treated as provisional and therefore subject to change. *The data is correct up to 30 September when the data was run.

I would also be grateful for an indication of the date the Committee plan to publish their first report on the draft proposal for a Remedial Order and any further information you can share about the Committee's timescale for scrutiny of the Order, even if provisional.

If you require any further information please let me know.

6 October 2010


39   Not printed. Copy of Annex placed in House of Commons Library Back

40   Not printed. Copy of Annex placed in House of Commons Library Back

41   Not printed. Copy of Annex placed in House of Commons Library Back

42   Not printed. Copy of Annex placed in House of Commons Library Back


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2010
Prepared 16 November 2010