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Lord Dholakia: My Lords, would the noble Lord be prepared to consider the excellent suggestion made by the noble Countess, Lady Mar? Could it be looked at in detail so that we could consider at Third Reading whether there is any merit in her proposal?
Lord Rooker: My Lords, yes, in due course I shall have a reply for the noble Countess. But I suspect that there will be plenty of legal arguments for why we cannot go down that road. However, I am not a lawyer. I draw on my experience as a former constituency Member dealing with hundreds of such cases. There were doubts, disputes, appeals and, sometimes, people had to leave the country. People also came into this country, both male and female, and abused the rules. Although I left the Commons three years ago, I still have cases going through the system. However, I shall get a considered response for the noble Countess, Lady Mar, and copy it for the House.
Lord Rooker: My Lords, yes, but I want to make it clear that I am not the Home Office policy Minister or the immigration Minister. Therefore all I could do is listen to the noble Countess. That is better done on the Floor of the House so that I can report back to the policy Ministers that we have questions that need answers. However, as a Member of the House, naturally I will listen and talk to any colleague at any time.
Lord Rooker: My Lords, I am sorry that I did not go through that specific question. I agree with the noble Lord, Lord Phillips. He said that he had a fairly simple point on the way in which the Home Secretary will give permission, and it deserves an answer. For most people it will be automatic in the sense that they meet
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the criteriathey have leave to remain for over six months. However, where they only have leave to remain for under six months and there are special factors to be taken into consideration, they will need the certificate. I have already mentioned the example of a lady who is heavily pregnant. However, we do need to clarify the criteria.
Lord Avebury: My Lords, I should say at the outset that I am not going to press the amendment to a Division, so the noble Baroness, Lady Anelay, can relax. My reason for not doing so is, as I have already said twice, that we believe that measures do have to be taken against sham marriages, although we do not consider that these clauses are the right way to go about it. While we have much sympathy with the proposal put forward by the noble Countess, Lady Mar, we are not going to be put in the position of denying any weapons to the Government in the campaign against sham marriages just because we believe that a better solution would have been possible.
In the time available to us, we could not possibly have drafted a complete alternative to these clauses, let alone to have consulted, which we believe ought to have been undertaken with representatives of the ethnic minorities and those concerned with the human rights aspects here. Whatever the noble Lord may say about the meaning of Articles 12 and 14, the fact is that the matter has not yet been considered by the Joint Committee on Human Rights and the House has not yet received its advice. So we have no idea whether the committee concurs with the explanation given by the Minister or whether it will question the risk of a possible violation of Articles 12 and 14 arising.
I am most grateful to all those who have spoken in support of these amendments, in particular my noble friends Lord Dholakia and Lord Phillips, and to those who have spoken to the amendments even though they have not actually supported them.
My reply to the particular question put by the noble Baroness, Lady Carnegywho I think has ascribed to me Scottish nationality, which I would love to possess but can claim to be only one-quarter Scots; I have a Scottish grandmother and many Scottish ancestors further backis that if we had been able to produce the complete alternative scheme to cope with sham marriages that I would like to have seen, we would have said that this had to be a matter for consultation with our Scottish colleagues. Indeed, I turn the question around and ask to what extent the Minister has engaged in discussion with Scottish interests on these clauses.
Regarding the comment of my noble friend on Clause 19(3)(b), the Home Secretary will have to make a judgment on the genuineness of the relationship when he gives permission to those who have been legally resident in the UK for more than six months and who have been considered prima facie eligible for the grant of a certificate of approval. The only point in having such a provision on the statute book is that there are cases where that permission would be refused. The noble Lord said nothing about the criteria that he would use in applying his discretion against such a person in refusing the grant
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of a certificate. That is where the primary purpose comes inthat the only grounds on which it is conceivable that he can refuse to grant a certificate to such a person would be that he thinks that the marriage is being entered into with a view to gaining some advantage under the immigration Act.
The Minister has not told us the outcome of the 1,453 cases reported under Section 24 between January and April, let alone the 2,700 that came to the notice of the Secretary of State during 2003. What he did say was that some action was always taken on these reports. I will repeat my request to the noble Lord to come forward before Third Reading with a total analysis of those cases, saying in how many cases there was a prosecution, in how many cases it led to doubts about the validity of the marriage which fell short of the prosecution, and in how many cases the marriage was in the end deemed to be genuine in spite of the suspicions voiced by the registrars. As I said on the last occasion, if I was a registrar faced with that duty, I would be inclined to report all cases where there was any doubt whatever, leaving it to the Secretary of State to sort out those on which action needed to be taken.
I think that the Minister underestimates the anxiety which these proposals have caused in the black and ethnic minority communities. As I said on the last occasion, it is not simply up to him to satisfy your Lordships that these clauses should go on to the statute book; it is up to him to engage in a campaign with the ethnic minorities to ensure that they know that discrimination is not intended and that their marriages will not be impeded or interrupted. I leave it to the noble Lord to engage in that activity. I hope that that will begin immediately and not wait until the clauses are on the statute book.
Baroness Carnegy of Lour: My Lords, with the leave of the House, the noble Lord was a little lighthearted on the point about Scotland. He was proposing that two clauses should be removed from the Bill. I was asking him whether he had consulted his colleagues who form the Government in Scotland, whom I do not believe want those clauses removed. I suggest to the noble Lord that when he does that kind of thing, it would be wise to do a bit of consultation. He tells me that he has a Scottish grandfather, I think he said
Baroness Carnegy of Lour: My Lords, I would reply that both my grandmother and my great-grandfather were born in India, so that gives me an interest in this matter! That is by the way, but when moving such amendments the noble Lord's party should consult colleagues and make sure that they would be happy if there was no clause about marriage in the Bill. I think the reaction in Scotland would have been quite interesting.
Lord Avebury: My Lords, the answer to the noble Baroness is that they do not have to be happy or
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unhappy, because I am withdrawing the amendment. But, as I said, if we had proceeded with the amendments then obviously we would have had to engage in consultation with our Scottish colleagues. I saidif the noble Baroness was listeningthat I hope that the Minister has taken the trouble to consult with the Scottish Executive and the Scottish Parliament, and that the clauses drafted in relation to Scotland have had the approval of those organisations. I beg leave to withdraw the amendment.
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