Draft Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Remedial) Order 2010

My Lords, the purpose of this draft remedial order is to abolish the certificate of approval scheme to prevent sham marriages. A certificate gives migrants written permission from the Home Office to marry. I am grateful to the Joint Committee on Human Rights for its support in this matter. In its first report on the order published on 16 November 2010 the JCHR agreed that the scheme should be abolished. It also agreed with the Government’s approach in using this order to achieve abolition. The Government laid a revised order in December 2010 making minor technical changes recommended by the JCHR. In its second report published on 14 March the JCHR recommended that Parliament now approve this order. The Government want to bring this order into force subject to your Lordships’ agreement. We are doing so for two reasons. First, the domestic courts have declared that the scheme is incompatible with the European Convention on Human Rights. Abolishing the scheme will remove this incompatibility. Secondly, changes made following rulings from the domestic courts have weakened the scheme and the Government do not consider it any longer to be an effective method of dealing with sham marriages. The certificate of approval scheme was introduced in 2005 by our predecessors to protect the immigration system and marriage laws from abuse, in particular from those entering into sham marriages. The scheme did not and still does not apply to Anglican marriages taking place in England and Wales and this different treatment for non-Anglicans is at the heart of the judgments against the scheme. The House of Lords ruled the scheme unlawful in the case of Baiai by making a declaration of incompatibility relating to the discrimination between civil and Anglican marriages. The scheme has been modified in several ways to comply with court rulings. This included allowing people who had been excluded from the original scheme to apply for permission to marry—for example, illegal immigrants—and we also suspended the application fee. However, the current scheme is now frankly a shadow of its former self. It is ineffective as a means of preventing sham marriages and we believe that there is no merit in continuing with it. The Government therefore intend to end the scheme, subject to approval, on 9 May. Your Lordships may ask what the effect will be. Indeed, it is hard to know. There is a risk that reports of sham marriages from registrars will rise when the scheme ends. Common sense indicates that this could well be the case. The Government will do their level best to combat the risk with the remaining powers at their disposal, which I am about to outline. Reports of sham marriages are already rising. In 2009, there were 561 reports of suspected sham marriages; in 2010, there were 934 such reports. We do not know the extent to which this constitutes a real rise or simply better reporting. Either way, there is a problem here to tackle, which must be of concern to everyone in this House. Therefore, when the scheme is abolished, the UK Border Agency will use the powers it still has to tackle sham marriage abuse. It is looking at ways in which it can use them more effectively to stop what is obviously covert immigration. It will obtain sham marriage information from the register office. The registrars will play a very important role in the future. It is already a key role and it will become even more important. Civil registrars will continue to exercise their duty to report any suspicious marriage to the UK Border Agency, under Section 24 of the Immigration and Asylum Act 1999. The existing rise in the number of reports reflects the work that is already being undertaken by registrars to focus on tackling this abuse. This work will be intensified. It will also ensure that migrants will still be permitted only to give notice to marry at one of a number of designated register offices throughout the UK. This will mean that the UKBA can focus resources on a limited number of locations. The UK Border Agency will also act on information so that immigration officers will be able to disrupt sham marriages scheduled to take place in churches. The UKBA is building on existing relations with the Anglican Church so that suspicions about sham marriages are reported by clergymen and clergywomen. The UK Border Agency has developed training for members of the clergy to help them identify potentially suspicious marriages. Immigration officers and police will continue to work together to arrest facilitators, brides, grooms, witnesses and guests—anybody who is involved—at ceremonies across the country that are, in fact, sham. The aim will be to destroy a criminal business if one is taking place. We have already had some notable successes. In the north-west, for instance, seven Czech nationals were recently sentenced to between 16 months and five years for their part in facilitating sham marriages, some of which were also bigamous. Two of the group also received custodial sentences. An operation in the Midlands has so far seen 13 people convicted, with sentences totalling 20 years. Last month the agency mounted its largest sham marriage operation to date, which saw officers swoop on well geographically spread addresses in London, Birmingham, Nottingham, Devon and Kent, while a simultaneous operation took place with the Dutch police in Rotterdam and Tilbury. There have also been a number of successful operations where churches have supplied information when they believed a marriage might be suspect. This included the conviction of an Anglican vicar, Alex Brown, and his two co-conspirators, who were recently found guilty of facilitating more than 300 sham marriages. The UK Border Agency will also prevent a person who has entered into a sham marriage acquiring any immigration rights. The legal position is clear. Those who enter into sham marriages are not able thereby to rely on that marriage to obtain leave to remain or to acquire the right to reside in the UK as the spouse of an EEA national. Third-country nationals wishing to enter the UK on the basis of a marriage to a British citizen or person settled here are and will remain subject to our Immigration Rules. If we believe a marriage to be a sham, an application for leave to remain under the Immigration Rules will be refused. That still has to happen. Those who are discovered taking part in, or facilitating, sham marriages will be prosecuted. We are closely scrutinising the marriage route to the right to remain and looking at measures to tighten it. We have already announced that we intend to consult on extending the spouses’ probationary period before settlement beyond the current two years. An additional period would allow a longer time to test the genuineness of the relationship. As I said, the Government will do their best to combat the abuse of immigration through sham marriage. I commend the order to the House.