§ 8.26 p.m.
§ Earl Ferrers rose to move, That the adjourned debate on the Motion, That the draft order laid before the House on 21st March be approved [15th Report from the Joint Committee] be now resumed.
§ The noble Earl said: My Lords, we return once again to debate the Immigration (European Economic Area) Order. This follows the adjournment of the earlier debate on 29th April. This is a fairly formidable document, and is couched in fairly legal terms and, even in the context of European Community orders, is somewhat more complicated to understand than most. I would like to apologise at the start to those of your Lordships who may already be familiar with the subject but, in view of the gap since the order was last debated, I think that it might be helpful if I were to outline briefly the main provisions of the order and the background to its introduction.
§ This Order in Council is to be made under the European Communities Act 1972. It will consolidate, and it will incorporate into United Kingdom law, nine European Community directives which all relate to freedom of movement and rights of residence. It also extends the rights of free movement and residence to nationals of Austria, Finland, Iceland, Norway and Sweden in accordance with the European Economic Area Agreement, which came into force on 1st January 1994. All of these countries were members of the European Free Trade Association and all but Iceland will, we expect, become members of the European Union in January of next year.
§ For this reason, the order refers throughout to "European economic area nationals"—that is to say, to nationals of those five states together with nationals of the member states of the European Community or, as it is now known, the European Union. Under the provisions of the order, and in accordance with Community law, on arrival in the United Kingdom a European economic area national must produce a valid European economic area passport or national identity card. At most major United Kingdom ports and airports, we have introduced a separate European economic area immigration channel in order to speed the passage of British and other European economic area nationals.117
§ No stamp or endorsement is placed in the European economic area national's passport. Subject to a brief passport check to confirm their identity and nationality, he or she is then free to enter the United Kingdom in much the same way as is a returning British citizen.
§ Having entered the United Kingdom, the European economic area national is then free to work in an employed or in a self-employed capacity to carry out business; to study here; to retire here; or to reside in any other capacity.
§ Students, retired people and others, who wish to reside without working, need to be financially self-supporting and to have sufficient resources to avoid becoming a burden on our social security system.
§ The order also contains provisions which allow family members of European economic area nationals to join them in the United Kingdom. There are powers to exclude and to remove European economic area nationals and family members on public policy; public security, or public health grounds. The order also sets out rights of appeal.
§ Of the nine directives which the order implements, six are already dealt with in the existing immigration rules. The three most recent directives which relate to students, retired people and others who are financially self-supporting, are already complied with administratively.
§ Once the order is in force, it will confirm our existing immigration practice in relation to European economic area nationals and their families. It will also enable us to meet our obligations to incorporate all the "Rights of Residence Directives" into United Kingdom law. It will also establish a separate legal instrument, distinct from the immigration rules, covering the treatment of European economic area nationals and their families under Community law.
§ The order is, as I have said, rather complex. This complexity is necessary in order to ensure that the provisions of the nine directives are accurately reflected in the order. However, I know that some noble Lords opposite—and, in particular, the noble Lord, Lord McIntosh of Haringey and the noble Lord, Lord Bonham-Carter —expressed concerns previously over some aspects of the drafting of the order. I shall do my best to try to resolve these. For example, some noble Lords questioned the need for Article 2(2) which is, remarkably, only one line in length. This excludes from the provisions of the order anyone who seeks to avoid immigration controls by contracting a marriage of convenience with a European economic area national.
§ It has been said that there is no basis in European law for such a provision and that, without further definition, the term might be interpreted too widely. I would like to make it quite clear that this provision has been included to deal with marriages which are entirely bogus, the purpose of which is simply to circumvent immigration controls. I would hope that I could allay any fears that this provision might be used against genuine marriages. We regard it as a very important principle that a party to a marriage, which is nothing other than a marriage of convenience, cannot be 118 regarded as a member of the family of a European economic area national and that he or she cannot, and should not be able to, benefit from Community law.
§ We recognise that the European Court of Justice has not issued a substantive ruling on this point of principle. But, the United Kingdom Government have had their view upheld by the Immigration Appeal Tribunal in the recent case of Kwong. I understand that leave to appeal to the Court of Appeal has been granted in the Kwong case and that this may lead to a reference to the European Court of Justice. But I am happy to confirm that we would consent to such a reference being made to the European Court of Justice in this case. That does not, though, alter the need for marriages of convenience to be excluded from the provisions of this order.
§ I can assure your Lordships that it will remain our policy, in the majority of marriage cases, to grant a residence document to spouses of European economic area nationals, who are exercising their treaty rights, simply on the production of evidence of their nationality, their identity and their marriage and evidence that the European economic area national is exercising a treaty right.
§ We will make further enquiries, before deciding the application, only when there are reasonable grounds for suspecting that the marriage is a sham—for example, where a marriage involves a non-European economic area national who is on the point of deportation and where there is no evidence of any relationship with that person prior to the marriage.
§ I can also confirm that we would not regard as a marriage of convenience a marriage which is a genuine marriage but where, for example, a couple were living apart for work reasons or where the marriage had suffered a breakdown, leading to a separation.
§ During the debate on 29th April, some noble Lords suggested that the order should include provisions relating to the various European Community association agreements with Turkey or other countries. I should make it clear that this order is limited to transposing into United Kingdom law the nine directives which relate to free movement and rights of residence for European economic area nationals and their family members. Association agreements are of a different character and they do not confer rights of free movement on individuals. It would be outside the scope of this order to deal with association agreements or other wider aspects of Community law. In any event, while recognising our obligations under Community law, the Government do not consider that the immigration rules are in conflict with association agreements.
§ Some noble Lords expressed concern that the order fails to make provision for relatives who cease to be dependent on a European economic area national. There are, in fact, no provisions in the European Community directives for the treatment of those family members who cease to have an entitlement to remain as dependants. These people, therefore, must qualify on their own account—either under this order or under the immigration rules.
§ It has also been suggested that the order should cover the admission of more distant relatives who have been living under the same roof as the European economic 119 area national. We do not consider that if we "facilitate" or "favour" applications from more distant relatives that fact should confer upon them an entitlement to admission to the United Kingdom. But we do recognise our obligation to consider any such applications. In order that applicants should be aware of this, we will ensure that it is reflected in the information leaflet for European economic area nationals which will be published following the entry into force of the order.
§ The order introduces a new term, the "European economic area family permit". This is an entry clearance document which will be able to be obtained from a British diplomatic post overseas by non-European economic area dependants who wish to install themselves with a European economic area relative in the United Kingdom. It has been suggested that this is an entirely new requirement. In fact, this is not so. Non-European economic area dependant relatives, who are coming to the United Kingdom for settlement, are already expected to be in possession of an entry clearance document before they depart. This is in line with the entry clearance requirement for the foreign dependants of British citizens or of people who are already settled here, if they are coming to join their relative on a permanent basis.
§ The European Community directives do not contain any general provisions relating to settlement. The new immigration rules will, though, enable European economic area nationals —apart from students—who have been issued with a residence permit which is valid for five years to be granted settlement after four years here.
§ In providing a route to settlement under the immigration rules, we have, therefore, gone further than the directives themselves require. The grant of settlement in such circumstances is a matter of domestic immigration law and it does not constitute a "social or tax advantage".
§ We do not accept, therefore, that this is discriminatory compared with the treatment of the foreign spouses of British citizens who may be eligible for settlement after 12 months. It is the immigration rules which set out that the spouses of those who are settled here under domestic immigration law may be eligible for settlement after 12 months. This provision would, of course, apply equally to the spouse of a European economic area national who had been granted settlement under the rules.
§ During the debate on 29th April the noble Lord, Lord McIntosh, drew attention to the report of the Joint Committee on Statutory Instruments which raised doubts as to whether the order was intra vires. The joint committee suggested that the requirement that a student should demonstrate that he had sufficient resources, so as to avoid becoming a burden on the social assistance system of the United Kingdom, might be more onerous than the directive had intended. As the order does not refer to a "declaration", the joint committee said that it believed that it was doubtful whether the order in this respect implements the directive.
§ With the greatest respect to the joint committee, we take the view that the drafting of the relevant article does properly reflect the requirements of the directive. 120 The order does not specify the means by which a student may assure us that he has adequate resources. The wording of the relevant article in the order—which is Article 6(2) (h) (ii)—is taken from the directive and we remain of the view that it meets our obligation to transpose the Students Directive into United Kingdom law.
§ We will only require applicants for student residence permits to show reasonable evidence of funds, such as bank statements. A declaration, consisting of a letter indicating financial support from parents or other sponsors, would generally be regarded as sufficient. Our clear view remains that it cannot be right that a student should be able to acquire a right of residence—possibly also thereby becoming a burden on public funds—by misrepresenting the adequacy of his resources through a false declaration.
§ I apologise if I have gone over territory which may already be familiar to some of your Lordships, and to have done so in a degree of detail which some of your Lordships might have found tiresome. However, I hope that by doing so, I might have managed to reassure your Lordships that the order is a measure which should not represent any substantial change in the treatment of European economic area nationals and their families.
§ The order will also, for the first time, provide a separate provision in United Kingdom law covering the rights of residence of European economic area nationals. This will not only help to clarify those rights in domestic law, but it will enable us to comply with our obligations to implement Community legislation on rights of residence. I commend the order to your Lordships.
§ Moved, That the adjourned debate on the Motion, That the draft order laid before the House on 21st March be approved [15th Report from the Joint Committee] be now resumed.— (Earl Ferrers. )
§ Lord Mountevans
My Lords, it will come as no surprise to my noble friend if I raise a long-standing issue. This is an extremely complex order. As my noble friend knows, it refers to immigration. I would put just one question. My reading of the order is that it does not—I have had this confirmed—impose any further burden under immigration (carriers' liability). I should be grateful to my noble friend if he would confirm that point when he replies.
§ Lord Plant of Highfield
My Lords, as the Minister made clear, this is the second time that the order has been debated in your Lordships' House. In the first debate the draft order was subjected to severe criticism from my noble friend Lord McIntosh of Haringey, who unfortunately cannot be present this evening, and the noble Lord, Lord Bonham-Carter, speaking on behalf of the Liberal Democrats. Since then there has been a substantial exchange of correspondence and one or two meetings on the issues outstanding between Members of the Opposition and the Government Front Bench. We are grateful to the noble Earl, Lord Ferrers, the noble Lord, Lord Annaly, and Mr. Charles Wardle, the Minister in another place, for the help that has been given and for the clarifications that have been received.
121 I am also grateful to the Minister for reading into the record this evening the substance of some of those letters and discussions as background to the understanding of this complex order. There are, however, still some points upon which I wish to record the Opposition's reservations with the hope that the Minister might respond to one or two of those reservations and allay our worries, and, if he does not, to indicate that there is this conscientious difference of opinion which perhaps cannot be resolved.
The Minister will not be surprised to know that the first problem relates to marriages of convenience. Broadly speaking, there are two issues here, neither of which affects the central agreed point—that people should not benefit from marriages of convenience and how that general principle is incorporated into the order. We welcome the assurance given by the noble Earl, Lord Ferrers, in his letter of 12th July that the test of primary purpose in UK immigration rules does not apply in European economic area marriage cases.
However, in the letters received by my noble friend and the noble Lord, Lord Bonham-Carter, from the noble Lord, Lord Annaly, and Mr. Charles Wardle, the definition of a marriage of convenience still seems to be rather loose and objective as, for example:a marriage entered into solely for immigration purposes, with neither partner having the intention of living permanently with the other as man and wife in a settled and genuine relationship".It is difficult to see how, in that necessarily subjective context in which judgments have to be made about the nature of marriage, elements of primary purpose which have been excluded from European economic area marriage issues will not creep back in. I think that they will, and that will be unfortunate.
Letters from Ministers talk about marriages of convenience being sham and bogus marriages, but we are not given a definition, a criteria or detailed guidelines. I still feel that the order should be more specific about those things. The Minister has given one or two example in his speech and in correspondence about what in his understanding would constitute a marriage of convenience. But if officials are to act on some notion of a marriage of convenience it would have been better to have had something more substantial by way of criteria and guidelines. That point is perhaps particularly apposite since in a recent decision in the Queen's Bench Division of the Supreme Court it was held that a marriage of convenience can include a marriage where the couple intend to stay married. It is not for me to question the judgment, but it is one that causes some worry about the extent of the interpretation of the notion of a marriage of convenience. The order should have been much more specific.
If we are to invoke marriages of convenience, excluding the criterion of primary purpose, then we need to have a much clearer idea of what the concept involves, and I do not believe that the correspondence has elucidated that sufficiently, and neither did the Minister's speech this evening.
The second point on marriages of convenience is an important procedural one. As the Minister said tonight and in his letters to my noble friend Lord McIntosh of Haringey, in the case of Kwong the question of 122 marriages of convenience is likely to be referred to the European Court of Justice for it to rule on whether it is right to introduce a marriage-of-convenience rule into a national provision which seeks to implement Community law.
The point I want to make here is not over the substance of that, but it does seem curious to introduce the provision of a marriage of convenience into the order before the court's judgment has been made, particularly since in his letter the Minister seems to be almost pleased that the application to the court is likely to be made and he looks forward to a rapid resolution of the issue. In those circumstances it seems odd to have incorporated marriage-of-convenience exclusions into the order without waiting for the European Court of Justice to rule on the Kwong case.
So far as we can tell, issues relating to marriages of convenience affect about 40 people a year. That sort of number of cases is investigated. In the light of those quite small numbers, we should be able to ask for greater clarity about the assumptions made in, as it were, identifying marriages of convenience.
The second general issue that I want to raise relates to a point that the Minister addressed in his speech; namely, association and co-operation agreements. As I understand it, and I am not a lawyer—no doubt the noble Lord, Lord Lester, will put me right if I am making a mistake—the European Court of Justice has ruled twice on the rights of residence of Turkish workers. In both cases (one in 1992 and one in 1993) Turkish workers who have completed at least one year's employment in a member state are entitled by Community law to an extension of their work and residence permits. Those judgments are nowhere reflected in the immigration rules or the order. The order, in my untutored way, seems to be the obvious and correct place for such a provision since it is, as the Minister stated, implementing directives and law relating to rights of residence.
The Minister may well argue that he considers the association agreements to be of a different character and to fall outside the ambit of the order. Indeed, that is; a point that he made in his speech. But surely it is true, as a point of Community law—again I stand to be corrected on this—that the provisions of the association agreements which the court has held to have direct effect have the same character as all other provisions of Community law in this area which the order claims to be implementing. It therefore seems that the court's judgments in this area are of the same character as the directives and law which the order tries to implement. I may be wrong in my interpretation of the point of law but if I am not it is curious that the order does not reflect that.
I wish to raise two other general points. The order, and the letters of the noble Earl, Lord Ferrers, and the noble Lord, Lord Annaly, suggest that a non-EEA child who joins or accompanies a family here and who then becomes 21 or ceases to be dependent by leaving school and getting a job, for example, will no longer qualify to stay with the rest of the family. It would seem, therefore, that one of the implications of the order is; that Ministers are prepared to contemplate the break-up of families 123 who have lived in the UK for a number of years prior to being granted indefinite leave to remain if at the stage they apply for settlement one child is working or is aged over 21.
That contrasts strongly with the provisions of the Statement of Changes in immigration rules to come into force on 1st October 1994, which provides for the granting of applications by a child who is:under the age of 18 or has current leave to enter or remain in this capacity";or, in the case of settlement applications,is under the age of 18 or was given leave to enter or remain with a view to settlement".It must be wrong that children in European Economic Area families have less protection than others and strong assurances of the practice to be followed, which we hope will be in line with that envisaged in the immigration rules, should be incorporated into any leaflet which is being prepared.
I ask my final point as a direct question because it was put to me this afternoon. I have not had a chance to write to the Minister about the matter but, if he is unable to give me an answer tonight, perhaps he will write to me. I was not clear whether a comment that he made in his speech addressed the point. It has been put to me that the suggestion that non-EEA nationals can apply for settlement after 12 months living with a settled European Economic Area national spouse cannot be correct. European Economic Area national family members are entitled to the rights of residence held by their spouse or parent, as was confirmed, so it has been argued, in the case of Surinder Singh. The Somali wife of an Italian settled here five years ago, for example, was judged to be entitled to settlement and not just to an initial one year's probationary period.
I do not know whether that is how the law stands but it is a specific question which suggests that the general point made about the 12 months qualifying period is wrong. Therefore, overall, we believe that after all the lengthy correspondence and meetings there are still points which lack clarity and give cause for concern. The aim of my speech has been to register those points in the hope that the Minister will be able to respond at least to some of them and, if not, to put our anxieties on the record.
§ Lord Lester of Herne Hill
My Lords, I wish first to express regret on behalf of my noble friend Lord Bonham-Carter that he cannot take part in tonight's debate, in particular as he played such a prominent part in the debate on 29th April. I am here as his understudy.
Secondly, there is no need whatever for the Minister to express any apology, as he did in his concluding remarks, for the full and detailed nature of the statement that he has made to the House. On the contrary, I endorse everything that has been said by the noble Lord, Lord Plant, as words of gratitude to the noble Earl and his colleagues for the way in which they have assisted the House in this matter.
I wish to thank the noble Earl for clarifying uncertainties and ambiguities in the draft order as regards the scope and effect of the order itself and its 124 compatibility with European Community law. During the earlier debate, it was left to the noble Lord, Lord Annaly, to bear the heavy burden of responding to the formidable comments, criticisms and questions raised by the noble Lord, Lord McIntosh, and my noble friend Lord Bonham-Carter. Therefore, it was sensible to adjourn the debate until this evening because it has enabled discussions on these issues to take place with the noble Earl and his advisers.
I welcome the assurances given tonight about the way in which the Home Office regards the relevant practice and the way in which government will interpret the order. It shows the value of the decision of the Appellate Committee in the case of Pepper v. Hart, since the assurances given by the noble Earl tonight will be able to be looked at by the Immigration Appeal Tribunal adjudicators and the ordinary courts in order to resolve any uncertainty or ambiguity in the order.
Without the explanation that has been given by the noble Earl tonight, the draft order would bear on its face the stigma of illegality under European Community law. That is because of the vagueness and overbreadth of the undefined concept of a marriage of convenience derived from the rules on the control of Commonwealth immigration. The Minister has given a narrower meaning confined to manifestly bogus and sham marriages. That, too, is welcome. Whether it will pass muster under European Community-Jaw will need to be decided by the European Court of Justice. It would have been preferable if the order had made the position clear rather than leaving it to the noble Earl to give clarification in his speech. It would be presumptuous of me to express any opinion on the answer to that question. However, it would be most welcome if the matter could be decided speedily and we are glad to see that the Government will support any reference under Article 177 to the European Court.
Having expressed gratitude and welcomed the statement, I wish to say something which is more critical. It is unsatisfactory to have opaque and vague language in a statutory instrument without proper definitions. I agree with the noble Lord, Lord Plant, in his criticism. It is also unsatisfactory that other principles of rules of European Community law in this area have still not been directly incorporated into United Kingdom domestic law.
In the case of Re Freedom of Establishment: EC Commission v. Italy in 1988, the European Court of Justice stated:if a provision of national law which is incompatible with the EEC Treaty (even a treaty provision which is directly applicable in the national legal order) is retained unchanged this perpetuates uncertainty and therefore itself constitutes an infringement of the Treaty by the Member State".It is therefore not sufficient to fail to introduce implementing measures properly into United Kingdom legislation. I refer to implementing measures on such matters as rights and obligations contained in association agreements or judgments of the European Court on the right of establishment of companies in other member states employing foreign workers.
125 I appreciate that those issues are beyond the scope of this order. But surely it is incumbent on the United Kingdom to implement Community law properly in these other areas too. I hope therefore that the Government will speedily introduce clear and transparent measures so as to implement Community obligations and rights properly and fully in these other important areas. That is no reason to oppose the Motion which is before the House tonight, nor do I subtract anything that I said earlier by way of gratitude to the noble Earl.
§ 9 p.m.
My Lords, perhaps I may just tell the noble Lord, Lord Lester of Herne Hill, how grateful I am for his kind remarks, especially those expressed at the end of his speech. I know that he and a number of other noble Lords were concerned about the provisions of the order. It is indeed a complicated measure. If the noble Lord who is an expert on such matters finds them complicated, he will understand how a mere novice like myself also finds them complicated. The noble Lord said that he wanted to see transparent measures taken. I understand what he means. The noble Lord also said that he found the language in the order to be difficult and that he wished it had been simpler and clearer without a Minister having to explain it. I also understand that view. I am only glad that I have been able to explain the order and to iron out any difficulties that I believe some noble Lords certainly had before I spoke.
Many points were raised by several noble Lords. My noble friend Lord Mountevans referred to the carrier's liability. I should just point out to him that Article 19 of the order makes it clear that the Immigration (Carriers' Liability) Act 1987 does have effect, but only in relation to a visa national who is required under the order to hold an EEA (European economic area) family permit. It means that there should be no more onus than is the case under the present arrangements.
The noble Lord, Lord Plant, referred to marriages of convenience. I was glad that he accepted the fact that people should not benefit from such marriages. Indeed, I do not believe that anyone thinks that they should. I can confirm that the primary purpose test of the immigration rules does not apply in European economic area marriage cases. The noble Lord also said that he wished that the definition of marriage of convenience was more precise. However, in my opening remarks, I said that such marriages were marriages which were entirely bogus, the purpose of which was simply to circumvent immigration controls. I should have thought that that was a pretty clear definition of what a marriage of convenience is regarded as being from the Government's point of view. Of course, each marriage will differ, but it is better to have such a broad, obvious generality rather than to try to be too precise and possibly miss some marriages which ought to be caught. I do not think that I can be any clearer than I was when I gave the earlier definition in that respect.
The noble Lord, Lord Plant, also referred to the association agreements. He suggested that the obligations under the Turkish association agreement are not reflected in the order or in the immigration rules. 126 However, I explained earlier that such rights are outside the ambit of the order. Nevertheless, I can assure the noble Lord that the right of Turkish workers is given full effect under our work permit schemes. As regards the Kwong case, the noble Lord suggested that the fact that there may be a reference to the European Court of Justice should delay the order. But I made clear that the Immigration Appeal Tribunal confirmed the Government's view that parties to a marriage of convenience should not benefit from Community law. Therefore, we feel content with the position which we are adopting in the matter.
The noble Lord also referred to an example— although I forget exactly what it was—of a non-European economic area national marrying an EEA national. I hope that the noble Lord will forgive me, but I shall have to study that slightly complicated position. Perhaps I may write to him on the matter. The noble Lord was also concerned about dependent children. The order makes it clear that children of an EEA national who are under the age of 21 or who are dependent upon an EEA national will qualify for residence here, along with the EEA parents. They will be able to apply for settlement in the way in which I described earlier. The noble Lord was worried that they may come over here at a certain age and then, by the time they are possibly a year older, they may find that they do not have the right to stay here. Obviously, one has to have a cut-off point in such matters. But once those children reach that age, they will be able to apply in their own right.
As regards settlement for European economic area nationals and their dependants, I can tell the House that the matter is dealt with in the United Kingdom immigration rules. It is not contained either in the European Community directives or in the order now before us which implements them. As I said at the outset, the order incorporates nine totally different directives which are not all that easy to follow. Therefore, it is quite difficult to incorporate all of them in one document and make it relatively comprehensible.
I am grateful to noble Lords for the understanding with which they have dealt with the problem. I hope that the answers that I have given tonight will satisfy noble Lords that the order is in fact both appropriate and proper and that your Lordships will be content to accept it.
§ On Question, Motion agreed to.