§ 5.5 p.m.
§ Lord AVEBURY rose to move, That the Statement of Changes in Immigration Rules for Control on Entry of Commonwealth Citizens, laid before the House on 22nd March, be disapproved. The noble Lord said: My Lords, I beg to move the first of the Motions standing in my name on the Order Paper concerning the Statement of Changes in the Immigration Rules, which was published on 22nd March.
In moving this Motion, I should like to say, first, that there has been very widespread disquiet about the terms in which these rules are framed, and I hope that as a result of this afternoon's debate we will have an opportunity of clearing up some of the doubts that have been expressed, although I myself hold that the changes which are now being proposed are, in some respects, intrinsically so objectionable that, whatever the Minister may say this afternoon, there will remain among many of the ethnic minorities in this country considerable reservations about the way in which husbands and fiancés are now to be treated. And not only among the ethnic minorities, because the Catholic Commission for Racial Justice, indeed, says that the principle involved in these changes in the rules contravenes Canon 10/12 of the Code of Canon Law, which states that,
a marriage is deemed to be valid until it is proved otherwise. Canon Law insists that, with every marriage, whether Catholic or not, the presumption must be heavily in favour of validity".
whereas, under these changes in the rules that we are now discussing, the test of whether or not a marriage is valid is not
finally determined until the end of the 12 months' period.
As I said, these changes in the rules concern mainly husbands and fiancés of women who are settled in the United Kingdom, and I shall say nothing about the other aspects of them which think are uncontroversial. Ostensibly, the changes do not affect the principle which was established in 1974, after very widespread and considerable agitation, that a man who marries a woman who is already settled in the United Kingdom is entitled to come here and live with her, in the same way as a woman who married a man settled in the United Kingdom could already do so. It may be recalled that up until January 1969 we had admitted spouses and persons engaged to be married without distinction as to sex, but that on 30th January 1969 the then Home Secretary, Mr. James Callaghan, now Prime Minister, announced that in future men would not be admitted, because the number of Commonwealth citizens coming for the purpose of marriage to women resident in the United Kingdom,
…have risen steeply over the last year or so and are now on such a scale that it seems that marriage is being used by many young men of working age as a means of entering, working and settling in this country". [Official Report, Commons; col. 36].
Mr. Merlyn Rees, who was, of course, at that time the Junior Minister at the Home Office, defended that decision with the statement that,
…this rests on the idea that immigrants should live in the men's country, not the women's",
an idea which I think clashes with the legislation which has been passed, through unanimous acclaim, eliminating discrimination on grounds of sex, since that statement was made.
The proposition that we now have to consider is not that men, fiancés and husbands ought to be excluded altogether from the United Kingdom, but that we should apply more stringent criteria to them than we do to women who are coming here as wives or fiancées. I believe that it will be convenient first to consider the case of an individual who gets married after arrival in the United Kingdom, whether or not he originally entered for that purpose. That person has to seek a variation of the leave originally given to him to enter for a limited time. The Immigration Appeals
Tribunal has recently laid down under paragraph 4 of the rules for control after entry that,
the fact that any applicant satisfies the formal requirements of the succeeding paragraphs is not conclusive in his favour".
The determination that I have just quoted concerned a case where the appellant was an over-stayer who had entered into a blatant marriage of convenience in the hope of frustrating the Home Office's intention to remove him. There is no argument about that.
§ The first question that I should like to put to the Minister is why, if it is possible to use paragraph 4 of the rules for control after entry in this way, it is necessary to introduce these changes, unless there is something more to the changes than appears at first sight? To help us in our consideration of this matter, can the Minister give us some examples of cases that would be caught by the new rules and not by the decision of the tribunal which I have just quoted?
§ My second point is that a marriage of convenience is, as I understand it, one in which the parties do not intend to live together but have gone through a ceremony of marriage for some other reason. In the cases that we are considering the motive is no doubt to acquire a right of abode in the United Kingdom. The Minister, Dr. Shirley Summerskill, said that she was satisfied that there was substantial abuse by people of a wide range of nationalities. I presume, therefore, that there must be some evidence of the number of married persons not living together, one of whom came from overseas, and that this can be compared with the extent to which separation takes place in marriages both partners to which were already either natives or had right of abode in the United Kingdom. However, Dr. Summerskill says that the operation of the Immigration Rules does not permit any precise figures to be given. No doubt this is because once a person is admitted to the country he or she is not checked up on every so often.
§ What, then, is the nature of the evidence? That is the second question to which I should be grateful for an answer. If there are uncontested removals on the grounds that a marriage entered into by someone who is overstaying is bogus, or if persons 208 who are removed for some other reason decide to come clean and say that, in an attempt to remain here, they were entering into a marriage of convenience or had done so, or if, for some reason of their own, they disclose to the authorities that the marriage was not genuine, then it should not be difficult to give some figures over a period of, say, a month or three months so that we can form some conclusion for ourselves and know what the Minister means when she talks about this phenomenon being "substantial". But, as long as we are merely told that the scale of the bogus marriages is substantial, I am bound to say that the case has not been made out to my satisfaction, because I know that there is a predisposition among immigration officials to be highly suspicious—it is part of their trade—and to treat many marriages, which on examination turn out to be perfectly valid, as being marriages of convenience.
§ As the Minister knows, there is a widespread fear among the minorities and particularly those from the Indian subcontinent that some Home Office officials, at any rate, are not able to draw a clear distinction between a marriage of convenience and what are called "arranged" marriages. These are marriages which are arranged for the parties by their parents. I should like it made absolutely clear by the Minister when he comes to reply that an arranged marriage between a girl who is resident in the United Kingdom and a boy from overseas is absolutely permissible within the rules and that the question as to whether or not a proposed marriage is an arranged one is not a factor which has to he taken into account by the entry clearance officer or the immigration officer in deciding whether to grant an application.
§ As I understand it, the intention of the Home Office is that, if an entry certificate officer in an overseas post has any doubt about the validity of an intended marriage, he will refer the case to Lunar House, the department of the Home Office which deals with these matters in the United Kingdom. It might appear from that that the applicants are being saved from the trouble of appealing in certain instances where the doubts of the entry certificate officer in the country of origin can be cleared up on further examination by an official in this country. However, knowing as I do the leaden pace with which some of 209 these matters are examined at Lunar House, I am afraid that we could risk increasing delays by this procedure. Where reference is made to the United Kingdom from overseas, I should like to suggest that we should place a time limit on the consideration within which a decision has to be made. If, at the end of the time which is specified, whatever it may be, the officials have not had time to complete their investigations, the entry clearance should be granted automatically. I do not believe that that would happen often because I think that, if the Home Office had such a rule which it had to apply, the immigration officials would make very certain that they had carried out the necessary investigation within the time scale.
§ It is necessary to bear in mind that there are already very many stages in the process of coming here which can take several years. First, there is the lengthy queue before a person gets to the stage of being interviewed by the entry certificate officer in his country of origin. Then, it may be that at his first interview there are certain facts that are not clear and the applicant is asked to come back after a period of several months. Then, the entry certificate officer may wish to refer the case to Lunar House as, I understand it, is invariably to be done under this new rule. Then, it is for Lunar House to make its own inquiries. If, having done so, they confirm the refusal, then the applicant has to make an appeal before the adjudicator which will result in another considerable delay because, apart from getting into the adjudicator's list there is the necessity of awaiting a statement by the Home Office of the grounds for its refusal.
§ This process, in the very simplest of cases, may take as much as three years. I had one case the other day of some aged parents who wanted to come to stay with their daughter in the United Kingdom and return to India after three months. It took three years for them to get through these various stages and to be allowed simply to come to visit their daughter. It would be very disturbing to think that we were indirectly lengthening the time scale in response, perhaps indirectly, to racist pressures at home. I believe that we ought to know by now through bitter experience that one does not appease racism by tightening up on the immigration laws and making the process of 210 complying with the requirements more difficult because racism merely feeds on the concessions one makes to it.
§ Coming to the question of the husbands and fiancés, the reason why one suspects that the introduction of these rules is indirectly of a racist nature is the remarks that have been made about the increase in the number of those husbands and fiancés since the concession was introduced and since 1974 when Mr. Roy Jenkins, as Home Secretary, equalised the treatment between the sexes.
§ The numbers are still minute. In 1976, according to the evidence given by the Home Office to the Select Committee on Race Relations and Immigration, 2,900 husbands were accepted for settlement on arrival, of whom 1,900 were from the new Commonwealth or Pakistan. In addition, some 8,200 men were accepted, following the removal of conditions as a result of their marriage to women already resident in the United Kingdom, of whom 4,500 were from the new Commonwealth or Pakistan. Generally speaking, it is worth pointing out that these numbers were smaller than the number of women settling on marriage, indicating that there is no statistical evidence of abuse by men—as, indeed, Mr. Alex Lyon has pointed out.
§ The Home Office evidence to the Select Committee goes on to say that the numbers would be expected to increase, anyway, because of the number of children of overseas origin reaching marriageable age and the persistence of the arranged marriage system in the cultures of the people who came here from the Indian sub-Continent. However, they go on to point out again that the propensity to marry a partner from overseas could be expected to diminish in the longer run as cultural patterns begin to reflect the growing proportion of people of Indian sub-Continental ethnic origin who were born and brought up here and whose customs are more like those of the host community. Whether or not the number begins to decline in future, inevitably there will be some abuse, as there is with any large-scale administrative system. The question is whether the abuse is on such a scale as to justify the new checks which are to be carried out "selectively" at the end of 12 months.211
§ The next question that I should like to put to the Minister is this: what is meant precisely by this word, "selectively", which has caused a great deal of anxiety? As the Minister knows, it is interpreted by the ethnic minorities as meaning that marriages between individuals, one of whom is of non-European ethnic origin, will come under suspicion. I am sure that that will be vigorously denied by the Minister, and the more specific the assurances that he can give me on this point the better. Then the question arises as to how this selection is to be applied. If it is a matter of investigating cases where the Home Office already has some reason to believe that the marriage is not genuine, what is the nature of the evidence which they will receive and where will it come from? I hope that the Minister will give me an assurance that there will not be any transfer of information from other Government Departments—for example, from the Department of Health and Social Security and certainly not from the Inland Revenue which has always had a rule of absolute confidentiality in all cases except treason and murder.
§ That leaves in the air the question: where is the evidence going to come from which leads them to suspect that a particular marriage is bogus and, therefore, to institute an investigation? Having decided that there is a prima facie case for investigation, how are the checks then to be conducted? To begin with, may I suggest to the Minister that the partners ought not to be visited in their own homes. They ought to be invited to attend at an office of the immigration service or, if there is not one reasonably close to their home, I suggest that then they should be asked to attend the office of the social service department of the local authority. I believe that it is undesirable for the police to have to carry out these checks. The relationships between the police and the ethnic minorities have not been so happy in recent years as to make it desirable that there should be a further cause of friction introduced between them. The police are already very busy and undermanned. I know that it will be said that the social service departments of the local authorities are in the same position, but I think that most people would agree that on the 212 whole it is preferable for the social service departments to carry out these checks.
§ May I ask the Minister whether the partners to a marriage would be entitled to have a representative of their own choice present at any interview. I understand that they are entitled under the rules to have a solicitor present to sit in with them while they are being interviewed but that the presence of any other representative who is not legally qualified is at the discretion of the interviewing officer. I do not see why this discretion should not be removed. You do not say to a person who is appearing before an industrial or a social security tribunal that he cannot be represented by a particular individual. I dare say that the industrial tribunals might like to do that. They might have some people coming along to act as friends of the appellants whom they think are a frightful nuisance. However, they do not have any choice in the matter and I do not see why the immigration officials should be able to turn down any particular individual whom the appellant wants to represent him. There has been some correspondence on the matter between the Joint Council for the Welfare of Immigrants and the office of the Minister, Dr. Shirley Summerskill, who appeared to think that the JCWI were asking for special facilities. I should like to assure the Minister that this was not the case. They were merely asking for equal treatment with any other friend whom the person would like to be with him during the conduct of the interview.
§ How is the validity of the marriage to be established? As the joint council has shown in a paper published last month, some extremely impertinent questions about the private sexual conduct of individuals under suspicion have been put by Home Office officials in the past. I think it is quite unnecessary to enter into that kind of very personal detail to establish whether or not two persons are living together. I should be grateful if the Minister could tell me what instructions are to be given to immigration officers concerning the type of questions which they are allowed to put.
§ Next, what would happen if the marriage is valid but has broken up before the expiry of the 12 months? I should like 213 to draw the Minister's attention to an article by Miss Sarah Leigh in The Times of 3rd May where she points out that if the husband is removed it will have the effect of preventing him from defending himself effectively in any action that may come before the courts for annulment or divorce, maintenance or custody of any child, and that conversely the wife is going to be prevented from enforcing any maintenance order for herself and for the child. I should have thought that any action in the courts resulting from a breakdown of the marriage should surely be completed before removal.
§ Finally, what happens in the sad circumstance that the wife dies? Would the husband then be permitted to remain? Perhaps I may ask one technical question. The new rules state that a husband will be granted an extension of stay for a period not exceeding 12 months if the marriage took place within the 12 months immediately preceding the application. If a man applies, for example, six months after he has married and the application remains under consideration in the Home Office for nine months—and that has been so in quite a number of cases, I understand—and the application is then granted, is it right that although the marriage is accepted as genuine now, 15 months after it took place, he will be allowed to stay only for a further 12 months and the marriage is then again subjected to inquiries at the end of that period? This may be a question which the Minister is unable to answer this afternoon. I quite appreciate that it is rather a complex question, but it has only just been drawn to my attention, otherwise I should have been able to give the Minister notice of it. However, it could be of importance in a minority of cases.
§ If the Minister can give assurances on some of the points which I have raised it will be helpful. However, we cannot deny that, however humanely the rules are administered, they are, as The Times put it, distasteful or, if you prefer the words of Mr. Roy Jenkins, they bring back into the law the stark and unacceptable nature of discrimination. My Lords, I beg to move.
§ Moved, That the Statement of Changes in Immigration Rules for Control on Entry of Commonwealth Citizens, laid before the House on 22nd March, be disapproved.—(Lord Avebury.)214
§ 5.29 p.m.
§ The Earl of MANSFIELD
My Lords, although the noble Lord, Lord Avebury, did not specifically say that he was speaking to all four of his Motions at once, I take it that indeed he was. I certainly intend to do so, and if I do not follow the noble Lord down every by-way, and certainly not at the same length, I very much hope that he will forgive me. The matters which the noble Lord has raised this afternoon are indeed important and certainly they merit serious consideration. The problems posed by immigration to this country cause anxiety to many people, and that anxiety is reflected at present by what seems to be increased support for political movements which certainly command no support in your Lordships' House, and little general support in the country as a whole, except in the geographical areas where people feel particularly vulnerable.
We on these Benches and in the Conservative Party have repeatedly made plain the policy which we seek to adopt, but it may be helpful if I quote what my noble friend Lord Carr of Hadley said when, as Home Secretary in another place, he made a Statement on the occasion when these rules were introduced in 1973. He said:Control over the rate of Commonwealth immigration was first introduced in 1962 and has since been strengthened by successive Governments because it has been generally recognised that there is a limit to the rate at which any nation can absorb new immigrants without endangering good community relations. The Government are convinced that at a time when our housing and educational resources and the social services generally are under severe strain this policy must be not only continued but further strengthened".—[Official Report, Commons; 25/1/73, col. 653.]Circumstances are certainly no better and therefore I suggest that any policy which the Government wish to see put into practice, and which goes to reduce the severe strain, is one which would commend itself to your Lordships' House.
It is in the light of what my noble friend said on that occasion that I suggest we should perhaps examine the proposals contained in the various changes, and for myself I understand that the effect will be considerably to tighten up the rules under which entry clearance will be granted to Commonwealth and foreign male nationals who seek admittance, either as husbands or fiancés. As the noble Lord, Lord Avebury, has pointed out, of possible greater effect are the proposed changes in 215 relation to control after the entry of such persons. If I may use the phrase, the performance of husbands and fiancés will be monitored for up to 12 months so that, in effect, if the marriage does not take place or is bogus in that sense—in fact it is merely a marriage of convenience—the man will not be permitted to settle in this country. The authorities will be given the duty to inquire into such delicate matters as cohabitation, and that raises a number of constitutional points.
The first question which I want to ask the noble Lord, Lord Harris of Greenwich, arises from this situation: A measure of publicity has been given to the seemingly growing abuse of immigration procedures by the proliferation of arranged marriage partners and fiancés, and one has even heard of agencies which organise and arrange bogus marriage partners and fiancés. I think the Government must justify their actions by stating definitively that the abuse has been growing worse and that action needs to be taken. So in short form my question is this: What evidence is there of the abuse of the Immigration Rules and the fact that the position is getting worse?
Secondly, if the need for these changes exists, we must be sure that the new rules will be fair in the sense that they apply to all would-be immigrants, regardless of colour and creed. Therefore my question is this: Can the noble Lord assure the House that these rules are not discriminatory in the sense that they are not aimed at any particular ethnic group, such as Asians or coloured persons or the subjects of quite properly arranged marriages, in the normally accepted sense of the phrase?
Thirdly, it follows that there will he some invasion of privacy so far as immigrants are concerned in order to establish that the immigrants are not in breach of sub-paragraphs (c), (d) or (e), or of paragraphs 24(a) or 26(a) of the new rules for control of entry, and I am sure the noble Lord will be familiar with those of which I speak. Can the noble Lord go some way towards satisfying us that there will not be what I call foolish bureaucratic prying, and, above all, that so far as possible the Press will not be given the excuse of relating salacious incidents of civil servants peeping through gaps in curtains to see who is doing what and 216 when?—because that would be self-defeating and would produce a volume of criticism which indeed would be justified.
Fourthly and lastly, I should like to be satisfied about the timing of these changes. I understand that there is a Select Committee of Members of the other place looking into this very question at the moment, and I am further informed that a report from that Select Committee is expected this summer. If that be so, one asks why the Government do not wait until the report of the Select Committee is published before acting, when the justification for these changes—if justification there be—will be apparent for all to see. In the alternative, one can put the question in this way: What is so urgent about the present situation, and what are the facts which justify the changes being made a matter of a month or two before the expected report comes out?
I have asked—I hope reasonably succinctly—a number of questions which I feel deserve answers. If they are answered satisfactorily—and one hopes that the noble Lord, Lord Harris, will be in that happy position—then I for one will be content to support these proposed changes. As the noble Lord, Lord Avebury, has said, they are distasteful and, as the Conservative Party likes to think of itself as being the Party of individual freedom, we never like any changes in our law which derogate in any way from the freedom of the individual. Nevertheless, we live in an increasingly complex and difficult society and, like so many other facets of our law, we have to accept that in certain circumstances we have to chip away at freedoms which hitherto we have all enjoyed; but we should not do so unless there is every justification for so doing.
§ 5.38 p.m.
§ Lord BROCKWAY
My Lords, it is characteristic of the noble Lord, Lord Avebury, that he should be moving this Prayer. I think Members of the House in all Parties will appreciate the continued stand which he has made for personal liberties, irrespective of sex or colour. I want to begin by endorsing also the series of questions which has been put to the Minister by the noble Earl, Lord Mansfield. The first was the question as 217 to whether marriages of convenience have so increased that it has been necessary for these regulations to be introduced. No evidence of that has yet been given, and the figures which the noble Lord, Lord Avebury, gave to the House about male and female immigrants do not suggest that there has been such an increase of arranged marriages that action was necessary before the publication of the report of the Select Committee.
My Lords, arranged marriage in order to enable immigration to take place, in order to enable British nationality to be adopted, is not a recent development; it has happened over the years. I am going to acknowledge to this House that I have been guilty of seeking to make arrangements for marriages of convenience in order to enable entrance to this country to take place. I did so during the Hitler-Fascist period, when there were refugees from Nazi-ism in Germany and in Austria who sought to escape concentration camps and death by coming to this country. I am not sure that I ought to say this, but there was a young woman from Vienna whom I endeavoured to marry to a young man who is now a very respected Member of this House. He was quite ready to marry her, but his mother objected. Fortunately, I was able to enable that young woman to marry a young man in Sweden and the marriage turned out very happily. The point I am making is that arranged marriage for entry to this country and to obtain British nationality is not just a recent development. I think the Government must demonstrate that there has been such an increase that it justifies these regulations before the Select Committee has reported.
My Lords, the second point I want to make is that there are already powers to prevent people coming to this country by means of these arranged marriages. The Appeal Tribunal already has power to reject cases of marriages of convenience. Its rule relating to marriage contemplates,…a marriage which was entered into for the purpose of living together as man and wife and founding a family.And the rule concludes by saying:Motivation for the marriage is thus relevant.So the Appeal Tribunal already has the right to prevent immigrants coming to this country by arranging marriages which 218 they are not intending to make real marriages.
There is an incidental point arising from this that I want to mention. Under these new regulations, the right of appeal will be limited. Under the recent House of Lords' Judgment in the Suthendrancase, there will be no right of appeal for men who are refused permission to remain as husbands if their previous leave had expired. I ask the Government to look at that point.
My Lords, my main concern about these new regulations is their attitude to sex discrimination. A wife or fiancée is allowed to come into this country to join a husband who is here. A husband or fiancé cannot come into this country under these regulations to join a wife who is here. I raised this very point in this House when the Immigration Bill of 1971 was being considered, and Lord Windlesham, who was then in charge of the Bill, promised consideration of this sex discrimination. Mrs. Lena Jager afterwards introduced a Bill in another place, end in 1974 this sex discrimination was ended. Now it is being reintroduced. This regulation assumes that a woman is a junior partner in marriage, is a subordinate, that the man is necessarily head of the family, the breadwinner. All of us who are opposed to sex discrimination must, surely, oppose that regulation.
My third point is this. These regulations inevitably mean an invasion of privacy which none of us should accept. The Government have said that selective tests will be made in order to see whether the male immigrants are in fact cohabiting with their wives. My Lords, there are four points, in the securing of this evidence, which seem to me to be absolutely unacceptable. First, there are repeated police visits and searches to confirm cohabitation; second, questions are asked regarding the sleeping arrangements of the man and wife; third, questions are asked about their practice of birth control; and fourth, questions are asked, when a man is 28 years of age, why he did not marry before.
As the noble Lord, Lord Avebury, has said, the Joint Council for the Welfare of Immigrants has published a whole series of cases which are an appalling interference with the privacy of men and women. I intend to quote only one. 219 Mr. and Mrs. H. were interviewed at the London Bridge office of the Immigration Department on 24th March. The questions to Mr. H. included the following:
These questions were asked first of Mr. H., and then of Mrs. H. separately, rather like the television programme, "Mr. and Mrs.", where man and wife are interviewed separately. When it emerged that Mrs. H. was not working because she was pregnant, Mr. H. was asked for how long they had practised family planning and why they had stopped doing so. At the end of the interview, Mr. H. was asked who had advised him to write to his Member of Parliament and whether he would inform this person about the interview. My Lords, I do not believe that there is a Member of this House who would for one moment endorse that kind of invasion of privacy under this regulation—and that instance is not an exception to the many such invasions which take place.
- "(a) the names of all persons staying in the same house;
- (b) where each of these persons sleeps;
- (c) where he and his wife sleep;
- (d) whether he decorated the bedroom himself;
- (e) whether their bedroom has wallpaper or has painted walls;
- (f) whether he can drive a car;
- (g) whether he smokes;
- (h) whether he drinks; and
- (i) whether he goes to the pictures."
Next, I want to say something which is a little difficult but which again indicates the sensitivity and the privacy of the interviews which are occurring. This kind of interrogation is particularly unhappy in cases where sexual strains and difficulties are experienced, as often happens in the early period of marriage, even when that marriage is contracted with the genuine intention of living together. During that period, due to these interviews, pressure may be brought to bear on the wife to continue to cohabit, despite her disinclination, lest her husband be required to leave the country; or, indeed, lest the removal of the husband may destroy any hope of the continuation of the marriage. That is an area of sensitive privacy which police visits and official investigations should not invade.
I oppose these regulations also on the ground of racial discrimination. If these 220 police visits and investigations were taking place in the homes of men and women from the United States of America, Canada or Australia, they would not be tolerated for a moment. They are tolerated and practised because they take place in the homes of those who are non-whites.
Finally, there is great danger of confusion between arranged marriages to enable people to come to this country and the arranged marriages which are traditional, for example, in Indian society. Happily, the younger generation of Indians is now revolting against marriages arranged by their parents. However, such marriages are still frequent and the Government must be extremely careful in these rules that they do not identify traditional arranged marriages in Indian society with those marriages arranged for the purpose of entry to this country.
My Lords, I am grateful to the noble Lord, Lord Avebury, for raising this matter. I am grateful to the noble Earl, Lord Mansfield, for asking such questions as he has. I hope that in reply the Minister may be able to give us some reassurance about the matters that we have raised.
§ 5.55 p.m.
§ The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich)
My Lords, I am obliged to the noble Lord, Lord Avebury, for his speech and for what my noble friend Lord Brockway has just said. I am also obliged to the noble Earl, Lord Mansfield, who asked me a number of questions which I shall certainly do my best to answer. I hope that my reply will reassure at least my noble friend Lord Brockway and, indeed, the other two noble Lords on some of the issues which they raised. Probably the most sensible way in which to deal with this matter would be, first, to discuss briefly the content of these rules which my right honourable friend the Home Secretary thought it necessary to introduce, before going on to deal with some of the more detailed questions affecting their operation, which have just been asked by my noble friend and the other noble Lords who have spoken.
These new rules provide in essence that where a marriage overseas has been recently contracted the husband is no longer granted settlement on arrival but 221 instead is admitted for a period of up to 12 months before settlement is entertained. Similar arrangements apply where marriages are contracted here. There is specific power, which now exists, to refuse admission or settlement in any case where there is reason to believe that the marriage is one of convenience. There is, in effect, a rebuttable presumption that the marriage is in that category where the husband has overstayed, or is under the threat of deportation before marrying, or where he is admitted as a fiance and ends up marrying a woman other than the one originally named by him as his prospective spouse. Inquiries will be instituted in selected cases, usually at the end of the period of 12 months, with a view to deciding whether the marriage was genuine and whether it is still in existence. If it is clear that the marriage has been one of convenience, settlement will be refused and the man will be told to leave this country. Where the couple have parted by the end of the 12-month period or the marriage has been legally terminated the husband will have no prescriptive right to remain, whether or not the marriage is believed to be one of convenience—
§ Lord HARRIS of GREENWICH
My Lords, perhaps I could just outline these particular points for the benefit of the House and then, if the noble Lord wishes to intervene, I shall gladly give way. As I said, where the couple have parted by the end of the 12-month period, or the marriage has been legally terminated, the husband will have no prescriptive right to remain, whether or not the marriage is believed to be one of convenience, although all the circumstances of the case will be taken into account in deciding whether to allow him to stay. I shall say more about that later.
§ Lord AVEBURY
My Lords, was the word "legally" intended to be inserted in sub-paragraph (d) of paragraph 24A because the noble Lord has just used the phrase, "legally terminated"? The rule actually says that the marriage has been terminated. I wondered whether there was a difference here.
§ Lord HARRIS of GREENWICH
My Lords, with great respect, I do not think there is. It is a distinction which has no great significance. It is either terminated or it is not. Perhaps I was ill-advised to use the word, "legally", because the question to which we are addressing our minds is whether or not the marriage has been terminated. That is what is provided for in the rules.
The entry clearance officers overseas may also refuse an application where the marriage is believed to be one of convenience, or where the husband has no intention of living with the wife, but they are under instruction to refer to the Home Office before exercising this power in any individual case. I do not expect much use of this power to he made abroae; the abuse primarily takes place in this country and it is here that the problem must be tackled.
It will not be necessary to have a check made in all cases, but only where the facts suggest that it would be desirable to make inquiries before settlement in granted. It will often be possible to interview the parties at an immigration centre near where they live rather than to arrange for a visit to the home. In general, I hope that the bulk of the inquiries will be carried out by members of the Immigration Service, although some will have to be made by the police if only because there is no complete coverage of the country by the Immigration Service, and because there will be cases in which criminal proceedings may have to be initiated. Clearly, in circumstances of that kind, it is wholly appropriate that the inquiries should be conducted by police officers. I must emphasise that there will of course be the normal right of appeal to the immigration appellate authorities against a decision to refuse an extension of stay or settlement on the strength of marriage.
Having dealt with the changes in the rules, let me turn to the position of our critics, both as expressed today and by the wider audience outside this House. The position of our critics (and this deals with some of the points made by the noble Lord, Lord Avebury), I can rum up in these terms: first, that it is unnecessary to have laid these rules at all; secondly, it is suggested that there is no widespread abuse; thirdly, that the rules that have recently been displaced were sufficient to deal with such minor abuse as did exist; 223 and, lastly, that what the Government are really seeking to do is to place some curb on the tradition of arranged marriages within Asian culture.
I entirely reject these suggestions. First, I must make it clear that evidence within the Home Office left no doubt that there was substantial abuse by men from a wide variety of nationalities, and that the previous rules were inadequate to deal with it. In the nature of things no precise indication can be given of the scale of the abuse because, as the rules stood, it was only where the circumstances in which a marriage was contracted gave rise to suspicion that the possibility that it was a sham was brought to attention. But we believe that there have in fact been several hundred cases a year of that kind, in which men were seeking settlement on the basis of marriages which seemed dubious, to say the least of it.
Of course I recognise the distinction between marriages of convenience where the marriage is never intended to endure by either of the parties to the marriage, and the perfectly genuine arranged marriages that are normal in Asian communities. The noble Lord, Lord Avebury, raised this precise point with me when he spoke at the beginning of the debate. Certainly we recognise that the tradition of arranged marriages is an important matter. It was one of the factors to which my right honourable friend's predecessor gave careful attention before deciding that husbands and wives should have freedom of choice whether to live here or elsewhere. Since arranged marriages are part of the Hindu and Muslim traditions, we saw no reason to exclude them from the rules introduced in 1974, and the new measures are in no sense aimed at them.
The noble Earl, Lord Mansfield, raised the question, perfectly legitimately, as to whether the new rules would apply at all. Yes, indeed they will. The noble Lord, Lord Avebury, asked me to give some indication of the character of the problem. He asked about its scale and character. Although I would not seek to generalise from one example, I should like to describe the circumstances of one particular case that has arisen in the fairly recent past that I think demonstrates the significance of the problem with which the Government 224 were confronted when they had to consider whether to introduce these rules.
There was a recent case in which a man arrived from Germany (he was not a German) where he was working and asked to be admitted for two or three weeks, as he described it, to visit a friend. He was granted leave to enter for a month, but a month later he married a British girl, and in the month after that he applied for permission to remain permanently on the strength of the marriage. When interviewed, he was living with two other compatriots in a room owned by the friend whom he had come to visit, and he said that his wife had lived with him but had had to move out when his compatriots moved in, and she was now living with her parents. That was the situation as he described it.
This man had, he said, met his wife in Germany when she was there on holiday, and had met her again by chance at a bus stop in Hull. The applicant's friend, on the other hand, said that the wife had never been to Germany, and her father said that the couple had never lived together. The wife claimed that she had met her husband in Germany, having travelled there on a British passport that she had obtained by post. She said that she could not produce the passport, which was hardly surprising because she had never been issued with one. Her story was wildly improbable, and it was quite clear that she had never been to Germany.
I think that the circumstances of that case illustrate the kind of abuse which has arisen in a number of cases. I do not wish to exaggerate the extent of the problem but, as I have indicated, in our judgment it certainly amounts to several hundred cases a year. It has been said by the noble Lord, Lord Avebury, and indeed by my noble friend Lord Brockway, that even without these amendments which we are discussing today the After-Entry Immigration Rules would, they say, still provide some defence against bogus marriages since they require full account to be taken of all the circumstances of the case before settlement is conferred. Where it could clearly be demonstrated that the marriage was a sham, usually because of an admission by one of the parties, it was undoubtedly possible to refuse a bogus case under the previous rules. But there was no adequate remedy where both parties stoutly maintained that 225 the marriage was genuine despite all the indications to the contrary. Far too many bogus cases in this situation were getting through.
The noble Earl, Lord Mansfield, asked whether there was really a need for as urgent action as the Government have taken. Was it not right to wait for the deliberations of the Select Committee? In the view of my right honourable friend —and I think he is undoubtedly right in having taken this view—it was clearly necessary, once it became clearly established that there was a significant abuse here, to take prompt action. Certainly—and here I would agree with at least part of the argument of the noble Earl, Lord Mansfield —it is undoubtedly true that if it is widely believed that there is substantial abuse of the Immigration Rules and that significant numbers of people are coming into this country as a result of that abuse of the rules, I cannot think of anything more certain to poison race relations in this country, and it is to improving those relations that the Government are determined to dedicate their efforts.
In this situation it has become apparent that a number of well organised rackets have begun to infiltrate men into this country on the strength of marriage, and that the problem was becoming one of quite serious proportions. What has troubled us has been the large volume of cases in which there was every reason to suppose that some semblance of a marriage was being preserved solely for the purpose of achieving settlement.
We have been told by some of our critics that Home Office officials are too ready to infer that a marriage is one of convenience. But what other conclusion is to be reached in the circumstances of the case which I have just described to your Lordships, and in cases where the husband has contracted a marriage immediately after admission to this country for a very short visit, or immediately after refusal of permission to stay here, and the parties cannot even begin to agree on such essential matters as how they met and where they have lived since the ceremony? In such cases, the parties have hardly gone out of their way to advertise their deception once they have secured their objective. But even so it was not uncommon for the truth to emerge after the husband had been granted indefinite leave to remain and for 226 our misgivings to prove only too well founded. In this situation, the Government could not simply stand by and allow the immigration control to degenerate into farce.
We do not pretend that these rules can provide a water-tight defence against every sham marriage—that would be an absurd statement—and there may well be instances when the appearance of a genuine marriage will still be artificially maintained at the end of the 12-month period. But in most of the suspicious cases that come our way the semblance of a marriage is probably secured only with difficulty and it is inherently unlikely to subsist for long, so I think the probationary period laid down in the rules will serve a very useful purpose.
I should say a word about the situations envisaged in the rules in which a marraige will he presumed to he one of convenience. There will be a wide variety of cases involving overstaying. Experience hitherto shows that they range from a man who comes here as a visitor and sets about bribing or coercing a woman to marry him in order to settle here but does not succeed until after his limited leave has expired, to the case of the overstayer who goes to ground and does not marry until after the police catch up with him, perhaps some years later. There will undoubtedly be some genuine cases in which persons have married women settled here after overstaying for a short period through inadvertence or otherwise, and these applicants will of course be allowed to stay.
Then there is the applicant against whom deportation proceedings have been taken. There have been quite a number of cases in which deporation orders have have had to be revoked or deportation proceedings abandoned against our better judgment because, within a matter of days after the orders have been signed or the proceedings have commenced, the man has found himself a wife, often a woman whom he has known for an exceptionally short period of time. Finally, there will also be a rebuttable presumption that the marriage is a sham where a man admitted from overseas to marry eventually marries someone other than his named fiancée. That does not seem to me to be an unreasonable power to take at a time like this. There have been relatively few 227 cases of that kind, and while I readily accept that there may be bona fide cases in which this situation will arise, the new rules will enable us to look at these cases far more closely.
I turn to the criticism that the rules will enable men whose marriages have broken up during the probationary period to be sent away, even though their marriages were genuine. This provision in the rules is not an innovation. It is broadly modelled on that which applied before 1973 to foreign nationals married to British women whose marriages were as a general rule required to be still subsisting at the end of the 12-month period before settlement was entertained.
The argument, as I understand it, is that it is wrong to penalise a man whose marriage has failed, perhaps through no fault of his own, if there is no reason to suppose that he entered into it in order to circumvent the immigration control. It would, of course, have been possible to frame the rules so as to give a man in this category a prescriptive right to remain here on the basis of a marriage that had irretrievably broken up before the question of granting settlement fell to be determined, provided that the marriage was not one of convenience. But I do not think it would have been right to do so. Let me take an analogy: a man who comes to this country with a work permit has an expectation of obtaining settlement on completion of four years in approved employment; but there cannot be any obligation to allow him to remain here indefinitely where the employment for which the work permit was issued has unexpectedly come to an end and there is no other available employment for him that can be approved.
Quite apart from the question of principle as to whether settlement should be granted when there is no viable remaining basis for permission to remain, I think that a commitment always to allow a husband to stay, even though his marriage had been terminated or there was no question of his living with his wife, would have left a wide area of potential abuse, particularly in cases where the couple had parted very shortly after the mrriage, and where it might be exceptionally difficult to decide whether the marriage was a sham or not.
But although this particular rule will enable settlement to be refused where there 228 is no valid ground for allowing the husband to stay, it is my right honourable friend's intention that it should be sympathetically applied. The instructions will require the staff always to consider whether the husband may qualify to remain under some other provision of the rules; such as if the Department of Employment is prepared to approve his employment. If no such possibility arises, careful consideration will be given to any representations that may be made that it would be an undue hardship for the husband to have to leave the United Kingdom. A particularly sympathetic attitude will of course be adopted—I was specifically asked about this by Lord Avebury—to any case where the wife has died. Account will also be taken of any factors which might point to the possibility of a reconciliation. Cases in which it is proposed to exercise the power in relation to those marriages which have quickly broken up will always be referred to senior official level and, where necessary, to Ministers.
Noble Lords have raised the question of the possible intrusion of privacy which has risen or might arise as a result of some of the checks that have had to be carried out. My right honourable friend accepts that deep feelings have been aroused by questions concerning the consummation of the marriage, and he is particularly anxious that inquiries into these marriages should be carried out with circumspection and understanding. After giving the matter much thought, he has come to the conclusion that it should generally be possible to get at the truth, even in the more dubious cases, without probing the physical side of the marriage. He has therefore decided that Home Office officials should no longer question parties to a marriage as to their sexual relationship and that this aspect should not be discussed during the interview, unless the parties volunteer information on the subject, as they often do. Where cases are referred to the police they will be advised that they should follow the same principle.
As I have indicated, we are determined to enforce the rule with humanity and commonsense. Where men come to this country to contract a genuine marriage, which both parties intend to endure, they have nothing to fear by having to wait for settlement. I commend the rules to your Lordships.
My Lords, before the noble Lord sits down may I ask him a question in relation to the question asked by the noble Earl, Lord Mansfield—which he did not answer—as to whether these Ministerial decrees contain any element of racial discrimination? Has the noble Lord considered one element of difference in these decrees vis-à-visCommonwealth citizens and non-Commonwealth nationals? It reads:If such a person holds a clearance issued upon proof that one of his grandparents was born in the United Kingdom and Islands, he should, subject to paragraph 12, be admitted for settlement".I read that to mean that an applicant, say, of 25 years of age would have had grandparents born about the turn of the century; that would in the majority of cases not put the applicant beyond the pale, so to speak. Is it not possible that this might clearly be construed as discrimination on the ground of colour, as the vast majority of Commonwealth citizens are beyond the pale?
§ Lord HARRIS of GREENWICH
My Lords, as I think the House will be aware, I had, in fact, sat down, but, in answer to the point that the noble Lord has put to me, I indicated the situation in answer to the noble Earl. There is no element of racial discrimination so far as the rules are concerned. What the Government have been anxious to do is to deal with what we have considered to be a significant abuse of the existing system, but I must emphasise that these rules apply to anybody.
§ 6.20 p.m.
§ Lord AVEBURY
My Lords, I am sure that the House is most grateful for the assurances that the Minister has given in respect of the manner in which these rules will be applied, and that the ethnic minorities will take some comfort in particular from his absolute and categorical assurance that there is no intention whatsoever of interfering with the custom of arranged marriages which prevails among some of the Hindu and Moslem communities. The fact that we have that assurance on the record will, I believe, have made this afternoon's proceedings worth while. It will be tremendously helpful to have it on the record that instructions are to be given to the immigration officers not to ask intensely personal questions of the kind mentioned 230 by the noble Lord, Lord Brockway—a particularly disgusting instance of intrusion into privacy, but one that was certainly not untypical of a series given in the document published by the Joint Council for the Welfare of Immigrants. The instructions to both the immigration officers and the police who may be required to conduct inquiries on their behalf not to put those intensely personal questions will, I believe, he widely welcomed.
I am sorry that the Minister was not able to give me any hope on the question of inquiries being conducted by the officers of local social services departments where it was inconvenient for the immigration officials to do so. I hope that this may be reconsidered because I am sure that the noble Lord, Lord Harris, realises that many people fear dealings with the police, possibly quite unjustifiably. If one has been brought up to think of the police as friends, one will have no fear of going into a police station or, indeed, of a policeman calling at one's home; but many people do not see it in that way. If they had to deal in the first instance with a sympathetic social worker from the local authority, I feel certain that the results would be improved.
Let us face it, my Lords, we are doing what the noble Earl, Lord Mansfield, called "chipping away at freedom", and that process is still as unpalatable as it was before I heard the assurances of the Minister. I do not feel that he made out a very good case on the evidence. He produced one story about a ma n arriving from Germany as a visitor and entering a form of marriage within two or three weeks of his arrival. By the way, that case would have been perfectly easily dealt with under the existing rules. It could have been dealt with under paragraph 4 of the rules for control after entry, and I daresay it was so dealt with, because I imagine that the noble Lord WE3 speaking about a case that occurred before March 22nd when these rules were made.
The production of a single example, though it may illustrate the kind of abuse which the noble Lord says is taking place, tells us nothing at all about the scale, which is something which we have continually asked for. We are told that there is evidence in the Home Office that leaves no doubt in the minds of Ministers that such a change in the rules is necessary. 231 I cannot understand why, if the evidence is available in the Home Office, it cannot be given to the House. The nature of things, the Minister has said, is that we can give no precise indication, and that is a repetition of what his honourable friend Dr. Shirley Summerskill said in another place. However, as I say, if one monitored for a period of a month or three months how many cases of the sort that the noble Lord has described come to the attention of officials, I believe that there could be some indication. I feel that these figures are probably available and that for some reason which is not immediately obvious the Ministers are reluctant to give them to Parliament. That is something of which I take a fairly serious view because what the Minister thinks is substantial evasion of the existing rules may to the rest of us appear to be thoroughly trivial.
The Minister said, quite rightly, that if it were to be widely believed that abuse was taking place either through bogus marriages or in any other respect, he could think of nothing more certain to harm or poison race relations. I completely agree with him, but I believe it is equally possible for race relations to be harmed if unspecified allegations are made against the immigrant community, or against particular ethnic minorities, of widespread rackets into which it is said they are entering in order to acquire a right of abode in the United Kingdom—and this on the basis of evidence that would certainly not be accepted in any court of law.
So I believe that, at some time in the future, the Home Office and the Minister, who has been very courteous in answering many of our questions, will have to come clean and produce this evidence. But I know that we shall not persuade him to go any further this afternoon, so I conclude by saying that we are grateful for the half loaf that we have received and that I hope that the assurances which the noble Lord has given to the House this afternoon will be given as wide publicity as possible among the ethnic minorities. I beg leave to withdraw the Motion.
§ Motion, by leave, withdrawn.