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Grand Committee

Wednesday, 25 July 2007.

The Committee met at fifteen minutes to four.

[The Deputy Chairman of Committees (Lord Haskel) in the Chair.]

UK Borders Bill

(Sixth Day)

The Deputy Chairman of Committees (Lord Haskel): Good afternoon. I have to announce that if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bell is rung and will resume after 10 minutes.

Lord Henley moved Amendment No. 69:

(a) raising the age limit for marriage visas and civil partnership visas;(b) the introduction of a requirement for spouses to have a basic knowledge of English; and(c) the development of a code of conduct for entry clearance officers and Home Office officials.”

The noble Lord said: This amendment, tabled in the names of my noble friends Lady Anelay and Lord Bridgeman, addresses the issue of whether or not marriage visa restrictions should be tightened, and, if so, how. It requires the Secretary of State to produce a report setting out, first, the arguments for and against raising the minimum age limit for marriage visas and civil partnership visas; secondly, the merit of introducing a requirement for spouses to have a basic knowledge of the English language; and, thirdly, details of the development of a code of conduct for entry clearance officers and Home Office officials.

Any United Kingdom citizen can bring in a spouse from another country as long as both the spouse and the sponsor are aged over 18. In 2005, 41,560 fiancés and spouses came to this country—an increase of 26 per cent on 2000 when the total was 32,950. It is a significant increase and one wonders why that has happened. Spouses come to the UK on a visa which allows them to remain for two years prior to applying for settlement. We have considerable concern about the vulnerability and welfare of young women, often from rural backgrounds with no command of English, who are brought into the UK and cannot play a full part in British society. We believe that they need better protection. It has also been argued that this process can hold back integration for a further generation as children are born into households where English is not spoken by the mother.

I believe that the Government share these concerns because they have increased the lower age limit for marriage partners from 16 to 18 and have said that

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they will consult on raising it further, although at the moment there is little sign of that consultation taking place. I understand that raising the minimum age for a spouse and their sponsor from 18 to 21 years would not require primary legislation, but could be done simply by changing the Immigration Rules. Perhaps the Minister would like to confirm that that is the case. Can he also tell us what consultation, if any, the Government have carried out on raising the minimum age, with what results, and when it is to be put before Parliament?

Article 8 of the European Convention on Human Rights covers the issue of marriage by stating that:

Article 12 then confirms the right to marry. However, as no doubt the noble Lord will be aware, states have a wide margin of appreciation under Article 8, and immigration control has consistently been held by the ECHR to relate to the preservation of the economic well-being of the country, the prevention of disorder and crime, the protection of health and morals, and the protection of the rights and freedoms of others. The measure must nevertheless be necessary and proportionate to such an aim, and we would certainly argue that proposals to tighten up the marriage visa restrictions are both necessary and proportionate to such an aim.

I also note that the Court of Appeal recently made a decision that appears to be directly relevant to the debate. I refer the Minister to the case of Crown against the Secretary of State for Home Affairs on behalf of Baiai and others, which was reported in the Times on 26 June. The Court of Appeal held that the statutory scheme requiring permission by the Home Office for marriage by people subject to immigration control or those who had entered the UK illegally contravened Articles 12 and 14 of the European convention guaranteeing the right to marry and prohibiting discrimination on grounds of nationality or religion. What impact has that judgment had on the power of the Home Secretary to persist with the scheme that requires permission for marriage, especially in the light of the judgment of Lord Justice Buxton that, in the light of convention jurisprudence, the Home Secretary could interfere with the exercise of Article 12 rights only in cases that involved, or very likely involved, sham marriages entered into with the object of improving the immigration status of one of the parties?

My amendment is tabled as a probing amendment for three reasons: to probe the Government's current intentions on the matter, to ask the Government to explain what procedures they intend to put in place as a consequence of the Court of Appeal decision, and because the provisions of the amendment form part of the process of consultation that we have embarked on about the proposals. I beg to move.

Lord Avebury: Raising the minimum age from 18 to 21 at which foreign nationals can get a marriage visa was foreshadowed by the Minister in another place, Liam Byrne, in March and has had a fairly general welcome, although for reasons already partly adduced

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by my noble kinsman in moving the amendment, we have reservations on it. In the debate on Second Reading of the Forced Marriages Bill, which my noble friend Lord Lester so brilliantly piloted through your Lordships’ House, my noble friend Lady Falkner of Margravine drew attention to the UN Population Fund’s finding that in many countries, more than half the women were married by the age of 18. She observed that, where early marriage was a deeply ingrained cultural practice,

She went on to say that in many of those communities the girl’s consent is not considered necessary and that, given the fact that marriages were often arranged by parents when the girl was very young, informed consent was not possible.

The tacit assumption behind the amendment is that, with the increase in age, young women will be better able to make up their minds freely on a proposed marriage and to resist coercion by their parents or the extended family. But in a patriarchal society, the pressure on a woman to accept the dictation on a personal matter such as marriage may not diminish with age. I am not aware of any evidence to show that the 3,000 women aged between 18 and 21 who come to Britain for the purpose of marriage every year will be saved from forced marriage by raising the age.

On the other hand, where two persons, one of whom is aged between 18 and 21, are denied the means of living together as spouses, as the noble Lord, Lord Henley, said, Article 8(1), the right to family life, may be infringed, as well as Article 12, which allows spouses to live together as a married couple. It is not clear that the interference is either in pursuance of a legitimate aim or necessary and proportionate.

If the legitimate aim is to prevent forced marriage, there would have to be some evidence that it happens disproportionately to younger adults. I was surprised to learn that in Dakar, the majority of the marriage visa applications are dealt with on paper, with only 5 to 10 per cent being interviewed by the entry certificate officer. If there is reason to suppose that there are problems, they ought to interview 100 per cent of the applicants and ask them questions to ascertain whether they have indeed given informed consent. If, having done that over a period, there was evidence to show that 18 to 21-year olds were not happy about their proposed marriages, it could be argued that a blanket denial of visas to the whole group was at least in pursuance of a legitimate aim.

I hope that the Government will consult their own national forced marriage steering group, which includes representatives from the voluntary sector, statutory agencies and central government, to see whether they have any evidence to satisfy the legitimate aim test. They should reinforce the ECOs in Dakar and other relevant posts so that, while this matter is under consideration, they interview 100 per cent of applicants for marriage visas to ensure that

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they have given informed consent. Meanwhile, it would obviously be premature to raise the age limit without that information.

The idea that spouses should have a basic knowledge of English might be held to be in conflict with Article 8(1), and is, I would suggest, totally impractical. Many who come here for marriage would not be able to afford English lessons in the country of origin, even if they were available.

On 26 February your Lordships debated the funding cuts in English for speakers of other languages. In that debate, there were five Lib Dem speakers and one solitary Tory, who was detailed to speak from the Front Bench. If the Tories are so keen on everybody living here being able to speak English, where were they then?

Lord Bassam of Brighton: I will let noble Lords opposite think about what the noble Lord, Lord Avebury, said and ponder on the point he left with Members of the Committee to consider. I am grateful to the noble Lord, Lord Henley, for his contribution because it enables the Government to set out their view on the subject.

I am sure that noble Lords will not require me to remind them, but I shall do so for form’s sake. The Government produced our strategy, Securing the UK Border, which was published in March this year. On page 13 we said that we would consult on three proposals—the very ones that have been chosen, very wisely, for this amendment, although I see that our code of practice has transmogrified into a code of conduct. We then consider what changes may be necessary as a consequence of our deliberations on these ideas.

We are very close to finishing our preparations to consult on this matter, although I should inform noble Lords that we are not considering including the possibility of requiring spouses to have a basic knowledge of English in this package of measures for consultation and discussion. That is because it would take us further than targeting the complex, but, none the less, distressing practice known as forced marriage. The other proposals are designed to help to equip young people born in this country to avoid situations of coercion and pressure where forced marriage is the consequence.

The other proposal for a basic knowledge of English is a requirement aimed at partners and prospective partners who are overseas and before entry. It seeks to establish that they have skills to participate fully in the economic and social sense, and we feel that it belongs to considerations about integration and long-term employment prospects, which are much wider than preventing forced marriage. Therefore, it is not being included in the consultation on visas for marriage.

Members of the Committee, and many others, will be fully informed of the outcome of our work on forced marriage, and of our further work on long-term participation in life in the UK.

The noble Lord, Lord Henley, rightly asked for further information about consultation. The noble

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Lord, Lord Avebury, quite understandably, was also very concerned about that. We intend to publish a consultation document for the traditional three-month period of consultation after the Recess. It will obviously reflect the comments made thus far on our strategy document.

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The noble Lord, Lord Henley, asked what impact the Baiai case had on the scheme for requiring permission to marry. It is correct that the Court of Appeal found that the way we operate the scheme is incompatible with Article 12. We are petitioning the House of Lords for leave to appeal. In the mean time we can continue to operate the scheme and still require those subject to immigration control to seek permission, but cannot refuse to grant permission without investigating whether the marriage is genuine. If we find that the marriage is a sham, we can still refuse permission. That is the position. Depending on the outcome of our petition to the House of Lords, we are considering what further action to take in relation to the scheme.

The noble Lord, Lord Avebury, referred to the issue of the age limit. His comments on the subject were interesting, although I am not entirely sure I agree with him. I think there is some benefit. As I have explained, we intend to consult on these issues, and no doubt that will inform our discussions later in the year.

Having advised the Committee of where we are at, I hope noble Lords will feel able to withdraw their amendment.

Lord Hylton: Before the noble Lord, Lord Henley, replies, I should like to say something about entry clearance officers. They have a pretty thankless task to perform, and their role is essentially unglamorous. Given that, would it be helpful for them to have a code of conduct? So much for that.

I hope that the importation into this country of spouses will not have to go on for ever. It would be good if a state of affairs were reached in this country where there was a sufficient pool of young men and women available for marriage, so that ethnic minorities in particular did not feel that they were under an obligation to choose an overseas bride. That is all I want to say.

Lord Henley: I am glad that I thought I saw some sign of movement from the Minister, in that he did not completely reject the idea of a change in the age limit of—that is, the idea of increasing it—and said that that would be subject to further consultation. Perhaps at a later stage of the Bill after the summer we can hear more about that consultation.

I found the remarks on the subject of raising the age from my noble kinsman Lord Avebury very depressing, saying that it would not make it easier in patriarchal societies for young girls to resist forced or coerced marriages or even to give proper informed consent. It might be that a lot of these young girls are coming from patriarchal societies, but my limited experience of daughters implies that they can still

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resist what fathers might suggest. I can take my noble kinsman back to the England of Jane Austen, which was, if nothing else, a patriarchal society, and we all know from that that young girls were able on occasion to resist what their fathers might suggest. A little age often makes it somewhat easier to do that. It would therefore be a good idea for the Government to think about that further and certainly to consult further on the possibility of raising the age for such young girls so that they had a greater chance of resisting a forced or coerced marriage.

I was grateful to my noble kinsman for suggesting that all applicants should be interviewed in their country of origin before they come here to make it clear that they are capable of giving proper, informed consent and that the marriage was not sham, forced or coerced. I do not know whether we will want to come back to this later, but I hope we will hear more in due course from the Government. They might want to reflect on it during the summer and before Report stage.

I will withdraw this amendment now but it is likely that I will wish to come back with it at a later stage in order to hear what further developments there have been over the course of the summer, what consultations there have been and how far the Government are going in their application for leave to appeal against the judgment in the Baiai case. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Avebury moved Amendment No. 70:

(a) a person has been detained under this Schedule; and(b) is in custody at a police station.(2) Persons to whom this paragraph applies shall have access to immigration advice on request.”.”

The noble Lord said: The amendment was tabled at the instigation of the Joint Council for the Welfare of Immigrants, which foresees that, as a result of the enforcement provisions in this Bill and the Immigration, Asylum and Nationality Act 2006, police stations are likely to be used increasingly as places of immigration detention. When the crackdown on employment of people with limited leave to remain starts later this year, presumably there will be a jump in the number of people detained, some of whom will be detained in police stations.

Under the present rules, immigration detainees can be held in police custody for up to five days, or seven days immediately prior to deportation. That is laid down in chapter 38 of the operation enforcement manual. The facilities in police detention are not suitable, even for those limited periods, as we saw in the case of Janipher Maseko, which I have quoted already on two occasions. She was held in Crawley police station for three to four days without having a

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shower, even though she was still bleeding from the recent delivery of her little boy, Collin. Because she had no access to legal advice while she was there, nothing was done about reuniting her with Collin or her other child, Chantelle until some time later when she was in Yarl’s Wood.

We have also received an e-mail from the TGWU that sets out its experience with workers who have been arrested and taken into custody in a police station. I have passed a copy to the Minister, although I am sure that he will not have had time to study it and I would not expect him to respond now. The union tells me that the first it knows of a worker being arrested for an immigration offence is when someone fails to show up for work. The union then has to ring a number of police stations because there is no easy way of discovering where a person is being held. When the union finds out in which police station the member is detained, it tries to arrange for a police station-accredited solicitor to attend and offer advice. Frequently when that is done, the union finds that the duty officer in the station refuses to accept a person with those qualifications because they say a suitably accredited immigration solicitor should offer the advice.

To cut a long story short—there is much to be studied in the TGWU memorandum—persons can be detained for up to five days in a police station and, at the end of that process, they can be “persuaded” to accept voluntary return to their countries of origin as a result of threats that if they do not do so they will be subject to criminal charges. Many people then accept the easy way out of going back to where they came from, rather than going through the hoops of a prosecution. All of this can happen without any legal advice being made available to the individual.

We also have concerns about victims of trafficking for forced labour who may be apprehended and held in police custody as illegal entrants, instead of being given the care and support that they obviously need. The action plan on human trafficking—which, as the Minister knows, we strongly support in principle—rightly calls for an increase in police activity to combat human trafficking, but initially it may not be easy for the police to distinguish between an illegal economic migrant and a victim of trafficking for forced labour. The person claiming to be such a victim must have the right to legal advice immediately.

The Home Office’s recently published Trafficking for the Purposes of Labour Exploitation: A Literature Review acknowledges that there is very little robust evidence of the trafficking of adults for labour exploitation, though the researchers go so far as to say that victims are to be found in agriculture, construction, nursing, care work, domestic work and hospitality. There is no standardised guidance on how to identify or treat adult victims, but there is enough information to show the growing importance of the problem. That is confirmed by the opinions of the TUC and Anti-Slavery International. Therefore we should take immediate steps to implement Article 15 of the Council of Europe convention which states that state parties must ensure that,

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I hope that at least the Minister will accept the amendment in principle and give an assurance that Article 15 will be implemented before the introduction of the new illegal working regime later this year. I beg to move.

Lord Roberts of Llandudno: I strongly support my noble friend’s amendment. At the present time, all legislation seems to be more restrictive and more traditional. An amendment was proposed earlier that we should increase the gaol term from two years to four years and here we are again talking about imprisonment. We always seem to adopt this sort of approach instead of accepting the opportunity provided by this legislation to consider alternatives. We already have the largest prison population per head in Europe and it is time for us to say, “Let us look again at the legislation”. What consideration is being given to alternatives to imprisonment?

Lord Hylton: The noble Lord, Lord Avebury, has done a service to the Committee in bringing forward this amendment. On those grounds, I hope it will receive a warmer and more welcoming response from the Government.

Lord Bassam of Brighton: I understand the motivation for this amendment but it is not one that we consider necessary. I shall set out why that view is taken. It is important that individuals who have been detained under Immigration Act powers should be able to access competent, independent advice and representation at an early point. So there is no difference between us on that first principle. All detainees are given details of how to contact the Immigration Advisory Service and the Refugee Legal Centre at the point of initial detention. This is reinforced by the requirements in the removal centre operating standards for detainees to be informed of their right to legal representation and how they can obtain such representation within 24 hours of their arrival at an immigration removal centre. In practice, this information is normally provided on arrival at the centre. Information about the Immigration Advisory Service, the Refugee Legal Centre, a list of legal representatives and a list of approved immigration advisers must be held in the centre library and be made available to detainees.

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