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Lord Dholakia: My Lords, I support much of what my noble friend Lord Avebury has said. There is no dispute that sham marriages must be condemned. But the entry clearance officer has ample powers to determine whether the purpose of the marriage is genuine when considering a person's application before he comes to this country. Once a person is in this country under any grounds, including being a visitor, he is not allowed to change his status. There are adequate safeguards under current legislation. If upon receiving notice of a marriage, a marriage registrar has reasonable grounds for suspecting that it will be a sham marriage he must report his suspicion to the Secretary of State. The Secretary of State has ample power to refuse registration or naturalisation or whatever the case may be in terms of British citizenship. Why is that power not being used? It is clearly specified in Section 24 of the Immigration and Asylum Act 1999.

A sham marriage is defined as one between a foreign non-EEA national and another person, whether British or an EEA national, entered into for the purpose of avoiding the effect of one or more provisions of United Kingdom immigration law or the immigration rules. When this provision was introduced in the Immigration and Asylum Act 1999, we contended that the new power was unnecessary and intrusive. The Home Secretary subsequently announced in the 2002 White Paper Secure Borders, Safe Havens that he intended,


 
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In April 2003, he increased the probationary period for leave to remain on the basis of marriage from one year to two years and prevented those with six months' leave or less from switching into marriage by obtaining leave to remain as a spouse.

My noble friend Lord Avebury has already cited the noble Lord, Lord Rooker, who said on 15 June that this provision would provide a significant deterrent against those intending to enter into a sham marriage. He said that the chances of couples coming into contact with immigration officers will be much higher and that will make them less likely to engage in a sham marriage. This argument does not hold water since those entering into sham marriages are doing so with the intention of deceiving immigration officials at a later stage and, in any event, that permission will be granted if someone has a valid passport with more than six months' leave.

What are the implications of this? It is clear that the proposed new measures are far more sweeping than the current powers. On any occasion when one party to a marriage is a foreign national, the couple will effectively be singled out for special scrutiny. The requirement for all UK registrars, except those designated, to refuse to accept notice from a couple when one party is subject to immigration control is of even greater concern. In practice, this will mean that all registrars will have to undertake immigration checks on any couple where they suspect that one party falls within this definition. Marriage registrars are not immigration officers and should not be used as agents of immigration control.

As my noble friend Lord Avebury has pointed out, the power to prevent a marriage going ahead will amount to a breach of Article 12 of the European Convention on Human Rights, which covers the right to marry and found a family. Preventing an EEA national marrying a national of another country may also be unlawful discrimination and contrary to European treaties. Although the right of spouses to live together in the United Kingdom has historically been subject to immigration control, the right to get married has never been questioned in this manner.

This is an attack on minority groups. The Home Secretary has already questioned the practice among many young black and Asian British citizens to marry people who are not settled in the UK so this is not the first time we have heard this argument. In 2003, he put into place a number of measures restricting the ability of foreign nationals married to British citizens to seek leave to stay in the UK with their spouses and he extended the probationary period of the marriage before they can obtain settlement. The latest raft of proposed measures simply represents a further attack on the right of black and ethnic minority individuals to marry the spouse of their choice.

Additionally, my noble friend Lord Avebury has raised the point that the amendment discriminates against anyone who is not a member of the Church of England. The Church of England does not require the permission of the Home Secretary following the grant of a licence or the reading of the banns of matrimony. This point remains to be clarified.
 
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The requirement to seek prior written permission from the Home Secretary for a marriage in the United Kingdom is an attack on the right to marry and is therefore a breach of Article 12 of the European Convention on Human Rights. The amendment that has been proposed previously does not assist. It simply makes us more concerned. We are concerned about several areas. The removal of the right to marry without the Home Secretary's permission is fundamentally retrograde and unjustified and may be a breach of the ECHR. It is not clear in what circumstances permission to marry will be issued by the Home Secretary. The JCWI, a prominent organisation working in this field, remains opposed to the principle of making marriage registrars into agents of immigration control. The proposals will certainly lead to discrimination against couples where one or both partners is from a black or ethnic minority group. The proposals represent an attack on members of minority faiths who may not be able to celebrate the civil and religious ceremonies together. A burden will be placed on marriage registrars that they will be unable to fulfil because of the highly technical immigration law. For these reasons, we oppose this clause.

The Countess of Mar: My Lords, we have got things the wrong way round here. Why do we have bogus marriages? Because people who we are married to United Kingdom citizens very often find that they are allowed to stay. Why do we not make it clear, either at the point of marriage or beforehand, that marriage will not under any circumstances constitute a reason for allowing someone to stay in this country over and above the reasons that he already has? Then the couple can either undertake the marriage or wait until the permission to stay is granted and then marry. Why do we not do that? All this rigmarole with registry offices and everybody else involved is taking it the wrong way round.

I disagree with noble Lords who say that this is racial discrimination because I know of a number of cases of Australians and New Zealanders who have tried this ruse to stay. I rest my case.

Lord Phillips of Sudbury: My Lords, the noble Countess, Lady Mar, makes an admirably simple point from her vantage point as a very experienced lay member of the tribunal. I would like to make a few remarks confined to the provisions of Clause 19(3)(b) and very much support the general tenor of the way in which my noble friend Lord Avebury moved his amendment, supported by my noble friend Lord Dholakia.

One must sympathise with those who have to implement this byzantine jungle of regulations and law. In saying that I also recognise that it is extremely difficult for the Minister to respond to the micro-points made as regards these clauses. It must be a formidable task. I have good news for him because my point is rather a simple one. I know that is sometimes a prelude to the reverse, but I mean it.
 
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At the previous stage the Minister said,

I believe that was an admirable sentiment really designed to reassure the House that there was no intention by the Government that any of these provisions should have an adverse effect on family life, bearing in mind the vulnerability in which many families already exist.

Clause 19(3)(b) gives one class of case in which the superintendent registrar can enter a marriage notice in his books where the person concerned,

That is one exceptional class where the superintendent registrar can say that he will proceed with the marriage.

The community concerned is very anxious to know more about that. Under what circumstances will the Secretary of State give permission to marry? There is no apparent requirement here for the framework of consideration of applications for this consent to be the subject of regulations although the following subsection does require them. I ask the Minister to reassure the House that this important subsection will be the subject at least of guidance which will enable all concerned to see the basis on which he would give consent to marry. For example, will he list publicly the criteria? What would he do about those who are not lawfully present here but who, if they returned to their country of origin, could be the subject of health problems or safety considerations if a civil war were in progress? For someone who applies under the subsection I have mentioned, how long will it take to obtain a response? What evidence will the Secretary of State require in order to make a decision on whether he will be given written permission to marry?

These are practical questions and none of them is on the face of the Bill. As I said, there is no requirement for regulations. The Minister cannot be expected to respond with criteria now, but I ask him to assure the House that if this part of the Bill is enacted there will be very open consultation followed by publicly published criteria which will enable all concerned to judge their application. Above all, perhaps it would help the powers that be and the civil servants involved to deal with the requests made under the subsection.


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