Asylum and Immigration (Treatment of Claimants, etc.) Bill

Part of the debate – in the House of Lords at 3:45 pm on 6 July 2004.

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Photo of Lord Avebury Lord Avebury Shadow Minister, Foreign & Commonwealth Affairs 3:45, 6 July 2004

My Lords, we have had two debates on the Government's new marriage clause, to which the amendment relates, but this is the first time we have considered it, as my noble friend said, with the benefit of the advice of the Joint Committee on Human Rights. I would like to place on the record our extreme gratitude to the committee for the rapidity and thoroughness of its work on all the clauses involved in recommitment as well as on other matters that invariably come before your Lordships that may have human rights implications.

We fully support the Government's aim of clamping down on sham marriages and we acknowledge that the increasing number of reports made by registrars under Section 24 of the 1999 Act indicates that further measures need to be taken to solve the problem. However, we have not been convinced that the existing powers, as my noble friend said, under criminal and immigration law are insufficient to curb the use of marriage as a means of evading immigration controls.

In that we are greatly reinforced by the discussion in paragraphs 36 to 81 of the JCHR report. The fact that almost half the report is devoted to the issue reflects its importance and the sensitivity of the human rights at issue, as we have sought to persuade your Lordships on two previous occasions.

For good measure, the JCHR not only enumerates the ECHR rights in Articles 12 and 14 but also the provisions in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, to which the United Kingdom is also a party. The first question the committee asked was whether the requirement in Clause 19(3) that express authorisation must be obtained for a marriage is a breach of Article 12 of ECHR; the right to marry. As it points out, although that right is according to international law, the wording is not interpreted as conferring an unlimited discretion on governments to circumscribe the right because otherwise Article 12 would be redundant.

Any restrictions on the right to marry have to be for a legitimate aim and must be proportionate. Thus, for instance, it was held that laws preventing prisoners from marrying were not within the scope of Article 12. We have to apply the same tests of legitimacy and proportionality to the proposals before us. In that regard, the JCHR has picked up the point we made in Committee that without knowing more about the Section 24 reports and the "striking discrepancy", as the report calls it, between the 2,251 reports by registrars and the 37 persons charged with criminal offences, we are not in a position to reach a conclusion.

As the committee says, we also need to know how many people have been refused leave to remain as spouses on the grounds that their marriages were sham; Amendment No. 15 touches on that point. The JCHR says that there is a significant risk that the proposed restriction on the right to marry may be disproportionate. It gives three substantial reasons, which I shall not attempt to summarise. It concludes that there is a significant risk that the requirement to obtain permission to marry as presently drafted will be incompatible with the right in the ECHR.

The committee also raised discrimination against persons who belong to a religion other than Church of England, to which I referred in Committee. The noble Lord, Lord Rooker, said that there was,

"no evidence of sham marriages in the Church of England".—[Hansard, 15/6/04; col. 696.]

However, the committee did not consider that "a sufficiently weighty justification" for treating members of one religion preferentially in a private matter that affects almost everyone.

Finally, the committee takes up a suggestion I made in Committee that it should consider the application of Article 14 on non-discrimination together with Article 12 on marriage since the clause restricts the rights of non-EEA nationals to marry and therefore treats them less favourably because of their nationality. The committee says that in principle a prior authorisation requirement could be justified if it applied only to those in the UK unlawfully and that more generally it is legitimate to regulate the right to marry so as to prevent the exploitation of marriage as a means of circumventing immigration control.

But as drafted, it considers that there is a significant risk that the proposals will be found to discriminate on grounds of nationality without objective and reasonable justification. It is profoundly unsatisfactory that we should be considering the advice of the JCHR on this important matter at the eleventh hour and without the benefit of a reasoned answer from the Government to the detailed objections that they raise to the clause.

We regret that decisions are not going to be made on the basis of reasoned argument and that Ministers can easily cast aside the opinions of a committee established by your Lordships for the purpose of ensuring that we avoid making human rights errors that will land the Government in the courts. In the past the Government have ignored the JCHR's advice and have good reason to regret it. I hope that that will not happen again.