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Lord Lester of Herne Hill: My Lords, I intervene as a member of the Joint Committee on Human Rights.
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I am glad to do so in the presence of the noble Lord, Lord Judd, who, like me, has the great benefit of serving on that all-party, and beyond-party, committee. I shall explain the reason for my intervention.

Parliament has not been well served by the Home Office in the way in which these human rights issues have been dealt with. At the beginning of our report, which was published yesterday, we say at paragraph 3:

We work very hard; we have an excellent staff; we attend meetings; we consider reports; and we produce them as quickly as possible. The earliest that we could produce a report that could be of any benefit to Parliament and to this debate was yesterday.

My noble friend Lord Avebury has done the House a great service in summarising, in a way that I do not need to do, some of the main issues that we raised in the context of marriage and sham marriages. However, the situation is wholly unsatisfactory for this reason. Having done all that work and having produced what we consider to be a cogent report, it would be impossible for us to expect the Minister now, although we would like him to do so, to respond properly in this debate and before the end of Third Reading to the points that my noble friend Lord Avebury summarised. The net result will be that, in a thinly attended House late in the afternoon, the luckless Minister will have the task of responding to a report as best he can and we shall then move on.

What will be the result of that? There will be no effective parliamentary scrutiny of these human rights issues and, as my noble friend Lord Avebury said, the matter will end up in court. Although I practise at the Bar, I regard it as a misfortune whenever legislation is passed in a form so defective that judges and lawyers have to come to the rescue. That does no one any good—not even the legal profession. It is dispiriting and it is entirely the fault of the Home Office. I am sure that, when he replies, the noble Lord, Lord Rooker, for whom I have great respect and whose love of parliamentary democracy and respect for Parliament is beyond reproach, will, in some sense, apologise. I am sure that he will. But, of course, that will not make good what has been done on this occasion.

This is not an ordinary Bill. It is one that affects the rights of one of the most vulnerable groups of people in this country. I must choose my words carefully—I am tempted to go over the top, but I shall not. I hope that this is the last occasion in the lifetime of this Government, or any future government, that something of this kind happens. When it does, we let down the parliamentary process and, ultimately, we must resort to litigation, which is a great misfortune.
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Finally, I want to ask one specific question. It is a narrow but important one. In paragraph 46 of our report, we point out that:

We point out:

I am sure that we would be grateful for an answer to that specific point and also for a reply to the various other points that have been made in our report.

Lord Judd: My Lords, I hesitate to intervene. However, I do so simply on this point because I am a member of the Joint Committee on Human Rights. Like the noble Lord, Lord Lester, I am second to no one in my admiration for my noble friend and the way in which he undertakes his work. Therefore, anything that we say contains no personal criticism of him whatever. But the Joint Committee is an all-party committee and the Government should be under no illusions that the points raised by the noble Lord, Lord Lester, were strongly expressed by everyone on the committee, whatever their party allegiance.

Lord Rooker: My Lords, I am very grateful for, and embarrassed by, some of the things that have just been said, particularly, I freely admit, in view of the fact that, until the noble Lord, Lord Avebury, was on his feet, I did not even know that the report was being published yesterday. Before coming back on the scene, I have obviously tried to get myself briefed on the amendments that we are discussing today and on some of the issues that were not in the recommitted part of the Bill. I wanted to be updated, but I did not know that the report had been published. But I am not hapless; I am angry that I did not know that it had been published. I clearly could not come with a response in 24 hours. I also hope that this is the last time that happens.

Draft Bills are published much more frequently; in fact, one is due imminently. If we are serious about the scrutiny of legislation, serious about getting it right and serious about human rights legislation, we cannot later say that we regret putting the Bill on the statute book but we have done it we will slip round it. That is not on.

I do not know the background and the chronology of events or why the committee did not report. I always speak at this Dispatch Box on behalf of the Government, unless I am speaking for myself. At the moment, I am speaking for myself and for the Government in apologising to your Lordships' House. The Government's treatment of the committee could be bordering on contempt in not allowing sufficient time for scrutiny because I cannot respond.

The Third Reading is set for today. I do not know what procedures will be used in the other place when its Members get this Bill back. Clearly they must have plenty of time to talk about the recommitted issues as they did not debate them when the Bill was before
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them. I hope that there will be sufficient time for the JCHR report to be considered in the other place, and that the Government somehow concoct a response to the report before amendments are discussed. That is the minimal response. I have no knowledge that this is being put together but I certainly hope so.

If I were in the House of Commons as a Minister—let alone as an Opposition or Back-Bench Member—and there was no response to the JCHR report in the amendments that come from this place, I would have one hell of a row. It will be very substantial block of amendments—almost a Bill on its own.

That is my view as a Minister, not just as an individual Member of the House. This situation puts me in a position where I cannot do my job of representing the Government to this House. I am critical of the machinery, but my job is to represent and speak for the Government in this House. I cannot do that as I would wish to as I have been placed in this position. The Government therefore lose out and we ask for trouble next time around. That situation has to be corrected in future.

I would like to say to the noble Baroness, Lady Carnegy, that she has got it dead right about Scotland. I will come to that point as I will go to my prepared notes in a jiff. In Scotland, there is no requirement to turn up. The situation will be looked at in case there is a problem.

This comes back to the issue of marriage tourism that I raised in Committee—people from overseas who want to get married, probably not on a bridge but perhaps in a castle or somewhere similar. In those cases, it may not be possible to turn up and give notice. The noble Baroness, Lady Carnegy, has got it dead right and has not misread the Bill or the amendments.

I will now proceed with the notes that I have. They were prepared by the Home Office in advance of the Bill and the remarks that I have just made.

Under Amendment No. 15, a person married in the UK, or intending to marry in the UK, would not be eligible to apply for leave to remain where he, or she, has been granted less than six months' leave or only have three months or less of his current leave remaining.

In April 2003, a similar provision to subsections (1)(a) and (2)(a) of the amendment—the six months' leave point—was included in the immigration rules. Paragraph 284 of the immigration rules requires that persons applying for leave to remain on the grounds of a marriage to a British citizen or person settled here have extant leave to remain in the UK and have been granted over six months' leave since the date that they were admitted to the United Kingdom, or have entered the UK with leave as a fiancé. That is one of the normal routes. Where a person does not meet this criterion, he would be expected to leave the UK and apply for entry clearance as a spouse. Many people do that.

While subsections (1)(b) and (2)(b) of the amendment—the three month leave point—may have a use in prohibiting persons approaching the end of their leave from entering into a sham marriage, the Government do not feel that it would be appropriate to
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consider it at this time. Should evidence arise that such an amendment is necessary, an amendment to the immigration rules could be made in secondary legislation. In any event, the immigration rules would be the appropriate place to make provision of this nature, not primary legislation. I hope that that point is accepted because it is well made.

Furthermore, the amendment tabled by the noble Countess, Lady Mar, does not assist us in combating marriage abuse when it is undertaken by a non-European Economic Area national marrying an EEA national. It is the act of marriage that gives a right of residence in these cases rather than the act of the Home Office granting leave to remain. Those marrying an EEA national do not need to obtain leave to remain on the basis of that marriage to have a right of residence through that marriage. This is because the rights of residence obtained through the marriage to an EEA national are the subject of European law rather than UK domestic legislation. Their rights are irrespective of an individual's immigration status in the UK at the time of the marriage.

As noble Lords will know, all EEA nationals have the right of free movement throughout the EU. This means that they are not subject to immigration control and do not require leave to enter or remain in the United Kingdom. In order to ensure that an EEA national can exercise free movement of rights effectively, he is entitled to have his family members accompany or join him when in another member state and exercising a treaty right.

The family member therefore derives free movement rights through his relationship with the EEA national. This includes a right of residence equivalent to that of his EEA family member. In practice this means that, like the EEA national, he does not have, or need to have, leave to remain when residing in the UK. He is in the UK as a family member of an EEA national exercising a treaty right and is therefore able to obtain a residence document confirming this right. This document is issued for the length of the residence permit his EEA national family member can also obtain. This would normally be for a period of five years.

Reports from registrars and other intelligence sources suggest that fixers of sham marriages are increasingly favouring this EEA route. As an indication of this, 61 per cent of the Section 24 reports received by the Immigration Service in May involved EEA national spouses.

While we are not obliged to issue a residence document in the case of sham marriages, the burden of proof in establishing whether the marriage is one of convenience lies with the Secretary of State. This is a very difficult and a resource-intensive activity.

As such, if we are to stop spouses of EEA nationals abusing immigration law through sham marriages, the most effective option is to stop them from getting married in the UK in first place. Designated register
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offices in addition to the requirement for entry clearance or a Home Office certificate of approval will provide a complementary two-pronged approach to tackling this marriage abuse.

With this in mind, I hope that the noble Countess, Lady Mar, will withdraw this amendment. She said that she would not proceed with it. I hope that that explains some of the reasons why the amendment cannot be accepted. It is a seductive one until the question of where those rights come from is considered.

As noble Lords will recall, the noble Baroness, Lady Anelay, tabled an amendment at Report stage that would have required both parties to attend the designated centre together. This was resisted because as drafted it did not meet the policy aim, but I stated that we were considering the policy intention behind the amendment. Since then, she has tabled Amendment No. 20, explicitly requiring both parties to attend the centre together.

The noble Baroness stated on Report that it was important that registrars at the new designated centres should be able to use the expertise they will build up in detecting sham marriages effectively, and that it was difficult to see how they could do this if under the new measures the parties to the proposed marriage were able to give notice of their intention to marry at separate designated centres. That would be the position under Clause 19 as currently drafted. The Government agree with the noble Baroness, and have tabled Amendments Nos. 16 to 19 in response to her amendment.

Requiring only non-European economic area nationals to attend designated centres or allowing the couple to attend separately would potentially leave a large loophole in the legislation. The fixers of sham marriages will be able to have participants to the marriage give notice separately which, of course, will deny registrars the opportunity to observe the interaction between couples at the notice stage and reduce the ability of registrars to identify suspicious marriages for the purposes of Section 24 reporting.

By requiring parties to the marriage to give notice together we shall ensure that registrars have an opportunity to observe interaction between couples, enabling them to form a view on whether an intended marriage should be reported as suspicious under current legislation. They will become familiar with the signs indicating a sham marriage and, therefore, be in a better position to be able to identify potential offenders and, in some cases, repeat offenders. One would think that people would not be so stupid as to return to the same register office, but it is amazing what people do. It happens; people have a forged passport and turn up wanting it renewed, never thinking that someone may be checking on it the other side of the desk. It is amazing and it could arise.

Where suspicions are aroused, Section 24 reports can be made and the Immigration and Nationality Directorate's increased commitment to enforcement and intelligence in this area will mean that, where appropriate, action can be taken.
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Amendments Nos. 21 and 22 will amend subsection (2)(b) of Clause 23 to bring the powers available in Northern Ireland's enabling clause into line with the amended provisions in Clause 19(2). If there are signs that the problem of sham marriages has been displaced to Northern Ireland, these amendments will give the Secretary of State, after consultation with the Registrar General for Northern Ireland, the power to require that parties to a marriage, involving a European economic area national, give notice together and in person at a designated register office. With that in mind, I would hope that the noble Baroness, Lady Anelay, will withdraw her amendment and that noble Lords will agree to the amendments that I shall move in due course.

The noble Baroness, Lady Anelay, and the noble Lords, Lord Kingsland, Lord McNally and Lord Avebury, have tabled Amendment No. 23 requiring an independent monitor to be appointed in order to report annually on refusals for permission to marry under subsection (3)(b) of Clause 19. Such a monitor does not exist for any of the Immigration and Nationality Directorate's other managed migration functions, such as leave to remain applications. At this point, the Government do not believe that it is appropriate to appoint one to report on this function. We believe that it would be adding unnecessary bureaucracy.

All the Immigration and Nationality Directorate's practices and procedures are subject to compliance with the Race Relations Act 1976, as amended, and are subject to independent review by the race relations monitor. The current monitor reports annually to Parliament and operations under subsection (3)(b) would be included within that remit. So there would be a mechanism for reporting to Parliament.

As I have stated in each of our debates, the Government appreciate the importance of parliamentary scrutiny of the workings of these clauses, which I would have thought would have included the JCHR points that I made earlier. However, we do not feel that an annual report from an independent monitor would be a suitable vehicle in this instance. As I stated on Report, the Immigration and Nationality Directorate officials are seeking to identify a suitable government publication in which the numbers of applications made for certificates of approval and the numbers of successful and unsuccessful applications could be included. I pointed out that some of the issues probably could not be reported if people were simply making inquiries. This publication, once we have found a suitable one, would then be laid before Parliament.

In Amendment No. 24 the noble Lords, Lord McNally and Lord Avebury, have requested that a statutory right of appeal be introduced for those persons who are refused a certificate of approval by the Home Secretary under subsection (3)(b) of Clause 19. The Government do not believe that a statutory right of appeal is necessary in relation to such refusals, as a decision to refuse a certificate of approval will be subject to challenge by way of judicial review.
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All applications for certificates of approval will be considered and determined in accordance with published guidance, which will set out the factors to be taken into account by caseworkers when determining such applications. Where an application for a certificate of approval is refused, a person would be free to challenge the decision by judicial review on what are commonly known as Wednesbury grounds—by the way, that is a place in the Black Country in the Midlands—which is that no reasonable person in the same position could reasonably have reached the same conclusion. For example, a person might challenge the decision on the basis that it was not made in accordance with the published guidance, or that the published guidance was itself unreasonable. Therefore, we think that judicial review is a sufficient and appropriate method of challenge to decisions to refuse an application for a certificate of approval.

In light of that, I would hope that noble Lords will not proceed with those amendments.

Some further points were raised. I shall refer to that raised by the noble Lord, Lord Lester, and my noble friend Lord Judd on the JCHR report. We are satisfied that the provisions are fully compatible. We appreciate that the timing is not ideal. We shall respond in detail in writing, as the points raised merit a detailed response. That is the official Home Office response.

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