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Lord Avebury moved Amendment No. 18:

The noble Lord said: My Lords, let me say at the outset that we acknowledge—as I said on a previous occasion when we discussed the marriage clauses—that people are entering sham marriages with a view to gaining the right to reside in the UK. We agree with the Government in their intention to prevent this racket, but we consider they are going about it in entirely the wrong way.

Let me start by looking at evidence of the level of abuse of the current system. The Minister said that registrars had reported 2,251 suspected sham marriages to date in 2004, compared with 2,700 for the whole of 2003. I emphasise the word "suspected", because in the letter that we have just had from the Minister—it came into my hands as I entered the Chamber—this has become reported as 2,251 sham marriages. These are not sham marriages until they are proved to be so, although I accept that such a proportion of them as has yet to be determined will turn out to be sham marriages. I take the point that the noble Baroness, Lady Anelay, made at the conclusion of her remarks.

I understand, although the Minister did not give these figures, that there were 1,205 Section 24 reports in 2002, and just 756 when reporting began in 2001. Undoubtedly, there has been a steep increase in the level of Section 24 reports, which—as the Minister acknowledged when we were discussing it before—might have been partially stimulated by the registrars' awareness that action was being taken. Following the Home Secretary's Statement of 22 April, there was then, as Mr Blunkett
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foreshadowed, a major new enforcement effort targeting sham marriages and those who organise them, with the aim of arresting those engaged in such marriages and, where appropriate, prosecuting the organised criminality behind them. This means that effective powers already existed in criminal law. The question that arises in my mind is why the Government waited for five years—from 1999, when reporting began, until 2004—before taking the action that the Home Secretary describes.

The Minister further told your Lordships on June 15 that, in May, enforcement officers attended some 200 suspected sham marriages and, as a result, they arrested over 100 alleged offenders and a further 28 marriages did not proceed as a result of the enforcement action. I emphasise that all this took place without any change in the law whatever. The Minister did say that registrars may refuse to take notice of a marriage when they believe that a forged document had been used, and the Immigration Service was going to provide training and support to registrars to help them detect those documents. If, as I understood him, the Minister was saying registrars already have that power, then can he tell your Lordships, for example, on how may occasions it has been exercised so far as regards the 2,251 Section 24 reports of suspicious marriages in 2004?

It is already impermissible for someone in the UK on a short-term basis to obtain leave to remain on the basis of a marriage, as announced by the Home Secretary in February 2002, and implemented by a change in the rules in April 2003. If such a person, a non-EEA national, does enter into marriage with a British citizen, then he or she cannot, under paragraph 284 of the rules, obtain an extension of stay on the basis of a marriage, but has to return to the country of origin and make a new application to enter as a spouse. That remains unaltered by these provisions.

The Minister said that permission to marry under these provisions would be refused in cases where the individual is here unlawfully, when the individual has leave to remain in the UK for less than six months, and when it is reasonable for that person to return to their country of origin and apply from there for entry clearance in order to marry. Let us see what difference this would have made to the 2,700 suspicious marriages in 2003. If any of the non-EEA partners to those marriages were here unlawfully then they acquired no rights and were still removable. If they were here for less than six months, then under paragraph 284, as I have already explained, they would have had no right to an extension of stay. If they had a limited need to remain for more than six months, then they would have been entitled to apply for permanent leave to remain on the basis of the marriage. Then the IND would have had to satisfy themselves that the parties intended to live permanently together, that they had adequate accommodation and that they could maintain themselves without recourse to public funds. My questions to the Minister are whether the 2,700 suspicious marriages have been tracked, and what happens when the non-EEA parties to those marriages log an application to remain on the basis of the marriage?
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In the first two cases, they should have been refused. In the third, they could have been refused if they were not living with their spouse or had had recourse to social security. Even if they had managed to satisfy all those requirements, they would be on probation for two years following the grant of leave to remain. If any evidence emerged during that period that the marriage was not genuine, then their leave to remain could be cancelled. In Committee on 15 June, col. 684, the noble Lord, Lord Rooker, said that these clauses,

making them,

Apparently, the more vigorous enforcement of the existing law has already had a major impact, and we are not satisfied that what is now proposed is effective, proportionate and compatible with the ECHR.

Under Section 28A of the Marriage Act 1949, as amended, registrars are entitled to demand evidence of nationality from a person who gives notice of an intended marriage. Under Clause 19, notice can only be given to one of some 50 special registrars designated for the purpose, but all other registrars will have not only to look at evidence of nationality—which I suppose will be the passport, in most cases—but will also have to verify that the person is not subject to immigration control, otherwise the application would have to be transferred to one of the 50 special registrars.

Every registrar will need sufficient training and advice to enable him or her to perform checks on a party who may be subject to these provisions so that, if necessary, that party can be directed to a Clause 19 registrar. That part of the Government's scheme may impose new burdens on all the registrars and cause delays—as the noble Lord, Lord Ahmed, has already pointed out in the earlier amendment—to perfectly legitimate intended marriages. It does, however, allow the IND to concentrate its attention on a limited number of registrars.

Although the right of spouses to live together in the UK has been subject to immigration controls for many years, this is the first time that the person's natural right to get married in the UK had been questioned. That is going to impede the matrimonial plans of the many people from the black and Asian communities who still have close family ties to their countries of origin, and perfectly naturally look for partners in those countries. We say that such a fundamental change also needs to be enacted—if at all—after thorough consultation with the agencies representing all the ethnic minorities concerned, as well as with independent experts who could advise us on the human rights implications. Such has been the haste of the Government that even the JCHR has not been able to look at these new clauses, which are being dealt with by the unusual procedure, already referred to, of recommitment—a wholly unsuitable mechanism for radical proposals affecting the very institution of marriage. In the few days that we have had to consider
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the matter, ILPA has said that these provisions are a misconceived assault on our civil liberties that will undoubtedly lead to challenges in the British courts and in Strasbourg. JCWI's opinion is that the removal of the right to marry without the Home Secretary's permission is fundamentally retrograde and unjustified. It says that it may be a breach of the ECHR.

The new provisions quite clearly discriminate on grounds of national origin, as they do not apply to marriages in which neither party is subject to immigration control. The noble Lord, Lord Rooker, seemed to consider that that was entirely legitimate and non-discriminatory when he said that nationality was the trigger and that there is nothing discriminatory about it. It is most unfortunate that the Minister himself is unaware that in law discrimination on grounds of nationality is considered to be discrimination on racial grounds. Furthermore, UK and EEA nationals resident in the UK will clearly be affected. There will be discrimination against all those who wish to marry a person subject to immigration control. Certain ethnic communities in Britain, with close social ties to those subject to immigration control, are bound to be affected more than others. Remember the last minute amendments that were introduced into the 2002 Act, including the notorious Section 55, which has now been hit below the waterline by the Court of Appeal. Remember the saying: "enact in haste, repent at leisure". I beg to move.

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