REFUGEE: BACK-DATING OF BENEFITS

HL Deb 15 June 2004 vol 662 cc664-721

(1) Section 123 of the Immigration and Asylum Act 1999 (c. 33) (back-dating of benefits for refugees) shall cease to have effect.

(2) Accordingly (and without prejudice to any other implied repeal, revocation or amendment) the following (each of which concerns the treatment of refugees) lapse—

1. (a) in the Income Support (General) Regulations 1987 (S.I. 1987–1967)—
1. (i) regulation 21ZB,
2. (ii) paragraph 18A of Schedule 1B, and
3. (iii) paragraph 57 of Schedule 9,
2. (b) in the Income Support (General) Regulations (Northern Ireland) 1987 (S.R. 1987/459)—
1. (i) regulation 21A,
2. (ii) paragraph 18A of Schedule 1B, and
3. (iii) paragraph 57 of Schedule 9,
3. (c) in the Social Security (Claims and Payments) Regulations 1987 (S.I. 1987/1968)—
1. (i) regulation 4(3C),
2. (ii) regulation 6(4D), and
3. (iii) regulation 19(8),
4. (d) in the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 (S.R. 1987/465)—
1. (i) regulation 4(3C),
2. (ii) regulation 6(4D), and
3. (iii) regulation 19(8),
5. (e) in the Housing Benefit (General) Regulations 1987 (S.I. 1987–1971)—
1. (i) regulation 7B,
2. (ii) Schedule A 1,
3. (iii) paragraph 62 of Schedule 4, and
4. (iv) paragraph 51 of Schedule 5,
6. (f) in the Housing Benefit (General) Regulations (Northern Ireland) 1987 (S.R. 1987/461)—
1. (i) regulation 7B,
2. (ii) Schedule A1,
3. (iii) paragraph 63 of Schedule 4, and
4. (iv) paragraph 49 of Schedule 5, and
665
7. (g) in the Council Tax Benefit (General) Regulations 1992 (S.I. 1992/1814)—
1. (i) regulation 4D,
2. (ii) Schedule Al,
3. (iii) paragraph 61 of Schedule 4, and
4. (iv) paragraph 51 of Schedule 5.

(3) An order under section 35 bringing this section into force may, in particular, provide for this section to have effect in relation to persons recorded as refugees after a specified date (irrespective of when the process resulting in the record was begun)."

The noble Lord said: Amendment No. 13 introduces a new clause, entitled, "Refugee: back-dating of benefits". In moving Amendment No. 13 I shall speak briefly to government Amendments Nos. 41 to 43. This group of amendments seeks to abolish back payments of income support and related benefits to refugees. Since the creation of the National Asylum Support Service in April 2000, those asylum seekers granted refugee status have been able to apply for a back-dated payment of income support equal to the 30 per cent differential between the cash element of asylum support and income support back-dated to when they made their claim for asylum.

However, given that those in receipt of asylum support receive other benefits in kind, such as payment of utility bills and household items, the Government believe that this is no longer necessary. Those approximate roughly to the 30 per cent differential, which does not apply to children because 100 per cent income support is paid in respect of children.

This amendment, therefore, seeks to repeal Section 123 of the Immigration and Asylum Act 1999. The relevant supporting regulations made thereunder will also cease to have effect on the repeal of Section 123. For the sake of clarity and certainty we are taking the opportunity to revoke those regulations expressly in this legislation. With the money saved in this way, the Government intend to introduce a new integration loan for which refugees will be able to apply. I beg to move.

Baroness Anelay of St Johns moved, as an amendment to Amendment No. 13, Amendment No. 14:

Line 46, at beginning insert "Subject to subsection (4),"

The noble Baroness said: In moving Amendment No. 14 I shall speak also to Amendment No. 15. Here, the Government are replacing an entitlement to benefits with a discretionary loan system which is outlined in the next new clause. The purpose of my amendment is simply to require the Government to put in place the regulations that will launch the loan scheme before they cut off the current entitlement to back-dated benefits.

I had several questions to ask on that, which were pre-empted by a letter which arrived hot foot from the Government—one of the many thousands the noble Lord referred to whizzing around Whitehall—at midday today. It makes a passing reference at this point. The Minister states: We will be working to bring about the abolition of backpayments and to bring the new loan scheme into effect as soon as possible. I would not expect there to be any significant delay between the end of the old system and the beginning of the new one".

I would hope that there would not be any delay at all. The point of my amendments is to ask: why should there be a gap through which people might fall? These are people who have been adjudged to be refugees who will be integrated into society. They will have been through a period when they certainly will not have had much in the way of money, even if they have been supported by friends or family, and every penny will count.

I am puzzled as to why the Government have said in a rather complacent way, "Do not worry. The gap will not be too big anyway". Why should there be any gap?

While I am on my feet and with regard more generally to the new clause which the Government are introducing, the UNHCR, which was referred to earlier, managed to get a briefing to us today, for which we are grateful. On this clause it states: UNHCR cannot support the introduction of the proposed amendments because they diverge from the 1951 Convention's clear intention to ensure high standards of welfare for refugees, and because they are bound to have an adverse effect on the dignity and rights of refugees". Have the Government had the opportunity to see that response from the UNHCR which objects to the making of these amendments? If so, what is their response to its view? I beg to move.

Lord Avebury

I did not receive the letter from the Minister which the noble Baroness mentioned, although I have received the one from the UNHCR.

Baroness Anelay of St Johns

It might be a good idea if I were to assist the noble Lord, Lord Avebury. The letter I hasten to add was addressed not to me but to the noble Lord, Lord Goodhart. Even though the letter sought to answer most of the questions that. I had put, I have not yet had a letter. I was lucky to see the letter addressed to the noble Lord.

Lord Avebury

I am grateful to the noble Baroness. It did not sound as though the letter from the Minister added very much to the sum of human wisdom, because we already knew, as he had explained previously, that the intention of the new clause was to remove the entitlement to back payments of income support and related benefits to asylum seekers ultimately granted refugee status.

The provision under which asylum seekers used to receive or have received back payments was originally in Section 11(2) of the 1996 Act introduced by the Tory government in July 1996. That was replaced by Section 123 of the 1999 Act. The idea was that if a person was finally recognised as a refugee he would have been entitled to income support, but the NA SS cash payments were set at 70 per cent of that amount. So the end result was that the person received the differential of 30 per cent when his application was granted. Thus he was restored to the financial position that he would have been in if his claim had been recognised immediately—except, of course, that he would not have had interest on the money which he had been lending the taxpayer meanwhile.

Lord Rooker

He also had all the NASS support, his utility bills paid and household effects bought, which anybody else would have had to buy out of income support. The noble Lord is giving a one-sided view of the issue.

Lord Avebury

I think the Minister was not listening to me. I said that the value of the NASS support was equivalent to 70 per cent of the amount of income support and that it was the balance of 30 per cent that was dealt with by the back payment, which the noble Lord now says is partially covered by the utility bills which he would have had paid on his behalf.

In any case, because asylum appeals are now being dealt with in less than six months, the amount of back payments is much less than it was in previous years. For a single person, the back payment at the end of six months would be about £500, and very few payments exceed that amount. These payments compensate the genuine refugee for a period when he is in very hard circumstances and during which, as we have just heard, he is not allowed to work. It would enable him to purchase small capital items, such as shoes, clothing, household items and children's toys which NASS payments do not cover.

We are told that the trigger for this proposal was an article in the Sun in March, in which the seven year-old backdating law was erroneously described as a "loophole" and Mr David Davis, whose party enacted the back payments in 1996, is quoted as saying: Why is it we have to find out what is going on with our money through a Sun exclusive?". The article also wrongly stated that half of those who claimed asylum in 2002 were eligible for backdated payments. Disregarding the 23 per cent who were given exceptional leave to remain, who were not eligible for those payments, the IND estimates that only about 10 per cent of applications in that year resulted in the granting of asylum with a further 10 per cent being granted it on appeal.

So, of the 20 per cent finally recognised as refugees, not all would have come below the minimum income level for benefits and thus would have been ineligible for payment. The Sun claimed that these payouts were costing us millions. I know of no government statistics on the number or the amount of the payments. The Whitehall editor of the Sun, to whom I made inquiries about this, told me that they themselves had no figures. If we assume an average of £250 on a three-month wait and 16,000 successful appeals this year, the cost would be about £1 million. I should be very grateful if the noble Lord would comment on that arithmetic.

The Sun article quoted an unnamed government source as stating that large sums go to those with very large families. The Minister has explained that children receive 100 per cent of income support and therefore they would not qualify for back payments anyhow. A qualifying couple would currently get a weekly NASS payment of £61.11, so I calculate that if they won an appeal after four years—and bear in mind that almost all applications are now being dealt with in a very much shorter space of time—and if we assume that the rates had been the same throughout that period, the back payment would be something like £6,000 with no additional payment for any children.

Article 23 of the Refugee Convention provides that contracting states shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their own nationals. As with all articles protecting the rights of refugees, they include those whose claims are under consideration.

The amendment breaches the right to non-discrimination in benefit provision for refugees, and we object to it in principle. It is a mean populist measure and contrary to the letter and spirit of Article 23.

It is only fair that asylum seekers should be able to pay off their debts when they get their status, and not to substitute a government loan for them, as we will discuss in the next set of amendments. Moreover, since the cost of backdating is directly proportionate to the length of the determination procedure, it must be falling as the backlog falls and appeals are heard with less delay.

The Government say that, with the money saved by abolishing back payments", they will introduce a new, discretionary refugee integration loan. We shall come on to that in a few minutes. We believe that retaining back payments of unpaid welfare support for all those granted refugee status would be an even more powerful tool for encouraging refugee integration.

Lord Rooker

Unfortunately—and I knew this as the noble Lord was speaking—we have no statistics of back payments paid by the Department for Work and Pensions. On the basis of the number granted asylum and the average wait for decisions of six months, we estimate that the cost of back payments is about £11 million per year.

I set that alongside a figure I used earlier on. I know the noble Lord does not seek to mislead, but he gives the impression that we are not doing anything. NASS support—taxpayer support—to asylum seekers is running at £1.1 billion per year. That is not income support or all the other support. It is over £1 billion per year. So the idea that we are being mean-spirited and unfair frankly does not stand up.

Perhaps I may briefly respond to the noble Baroness's amendments and a couple of other questions. Amendments Nos. 14 and 15 propose that the back payments should not be abolished until the refugee integration loan scheme comes into effect. Obviously, we shall come to that new clause in a moment. It is the Government's intention that the money saved by abolishing back payments of income support will be used to fund the new refugee integration loans. However, we do not consider it appropriate to place an obligation on the face of the Bill that back payments cannot be ended before the loans are put in place. That would tie things down to an unacceptable degree. We will work to bring about the abolition of back payments and bring the new loan scheme into effect as soon as possible. As the letter says, I would not expect there to be any significant delay between the end of the old system and the beginning of the new one. That is a commitment; it is not intended that there should be a massive gap between the two.

5.30 p.m.

Amendment No. 16 proposes that back payments should continue to be made to anyone who becomes a refugee "immediately before" the commencement date. I understand that noble Lords may be concerned about people who make their claim for asylum before commencement of the clause and who would otherwise have been eligible to apply for the back payment. However, the amendment as drafted would have the effect of negating the clause. If the amendment were accepted, it would provide that a person recorded as a refugee after the section comes into force shall be entitled to receive such benefits as he would have been entitled to receive if he had been recorded as a refugee immediately before the section comes into force. In other words, everyone would be treated as having been recorded as a refugee immediately before, regardless of when they actually were recorded.

I recognise that the purpose of this amendment is to provide transitional protection to those who have already claimed asylum. However, the clause will apply not only to those who claim asylum after the clause comes into effect, but to those with outstanding asylum claims. The Government do not consider it necessary or appropriate to phase in the provision. Given that the value of National Asylum Support Service in-kind support and cash support is broadly equivalent to what would have been received had the asylum seeker been in receipt of income support, there is no need for transitional protection.

I will repeat that for the benefit of the noble Lord, because three or four times he has consistently given the view that we are not supporting asylum seekers equal to other people—we are. The NASS in-kind support—that is accommodation, utility bills, household effects and cash support—is broadly equivalent to what would have been received had the asylum seeker been in receipt of income support. To that extent, we are not discriminating, and we are certainly not being unfair. We believe that the best approach to commencement of this clause is to have a single, clear date and to make sure it is fully understood by all those to whom it may apply. We can and will ensure that this is done by publicising the commencement date to asylum seekers, their advisers, and to refugee and community stakeholder organisations.

The question of the UNHCR report was raised. The Government have not seen the report, but the answer that we will give regarding allegations that the back payments are necessary to comply with Articles 23 and 24 of the 1951 Refugee Convention is this: so far as is relevant, Article 23 requires refugees to be given the same treatment in relation to public relief and assistance as is accorded to UK nationals. Article 24 contains similar provisions in relation to wages and related social security benefits. I do not think that anyone looking at the figures of the NASS benefits in kind—the 100 per cent support to children arid the 70 per cent cash support—could argue that they are not broadly comparable. We believe that the package of support for asylum seekers received from NASS—or local authorities under the interim provisions meets the equal treatment requirement of the Refugee Convention. I do not have another answer, therefore I hope that that matter is concluded.

Lord Avebury

If it does meet the requirements of the Refugee Convention, the Minister should discuss that with the UNHCR, because it is obviously not convinced. In the 1999 Act, when the levels of NASS support were decided, it was always explained that the amount of support was equivalent to 70 per cent of what a person would have received had he been on income support. That was the whole rationale at the time when the Tories introduced the back payments for the 30 per cent. If the arithmetic is different from that, the Government should have come along with a comprehensive explanation of how much the average utility bill is, how much the accommodation is worth, and so on, so that we could see a detailed make-up, which the Minister says comes to 100 per cent of the amount that the person—

Lord Rooker

I do not have the figures to hand, but to be honest, some people take the view that it would be cheaper to pay asylum seekers income support, let them get on with it, find their own accommodation, pay their own utility bills, and get their own household effects. The argument goes that it would be cheaper for the British taxpayer. I am sure that the noble Lord is not arguing for that. The present system leaves asylum seekers in a broadly comparable financial situation to UK citizens. In fact, there are others who argue that they would be better off. This is not the time to unravel this. We do not see a justification for continuing the back payments. It is not as though the money will be going back to the Treasury. We will use the money to fund the new loan scheme, which we will discuss in greater detail shortly.

Lord Avebury

The noble Lord does not have to convince only me; he must convince people outside this Committee, and in particular the UNHCR, which as we have heard believes that the arithmetic is wrong. If the noble Lord can produce a set of figures that will satisfy the UNHCR, well and good, and we can come back to this. I hope that he will be able to do that before Report stage, so that we have much more detailed information than we have at the moment.

The noble Lord has given us some help in that he has told us that the cost of the back payments amounts to £11 million per annum. I take it that that is from the last full year for which figures are available, 2002–03. The noble Lord can correct me if I am wrong. If that is the case, that is a reducing figure, because the number of asylum seekers since the end of the financial year 2002–03 has fallen sharply. We may be talking about an amount of half that, because the number of asylum seekers has come down by 50 per cent as the Government have proudly stated.

We are talking about a sum of £5.5 million that will be saved by this amendment. That amounts to 0.5 per cent of the total of NASS support which, as the noble Lord has told us, amounts to £1 billion. For the sake of saving £5.5 million, the noble Lord is erecting a new mechanism that will be costly and burdensome in terms of bureaucracy. I would like to know how much that will cost. What will be the cost of administering the system that will replace the back payments? Does the Minister think that that is justified as a means of saving this comparatively small amount?

Lord Rooker

I did say that the statistics were not kept. The figure of £11 million was given on the basis of the numbers granted asylum and the average waiting time for a decision of six months. The estimate for 2002 was approximately £11 million. That was an estimate based on statistics; I want to make that absolutely clear. I will come back, and we will discuss the loan scheme, but only in general today. Clearly, I am required to come back with further and better particulars of the scheme. We must have value for money. Some £5 million can be saved and used for something else. It will not go back netted to the Treasury, it will be used to fund the loan scheme. It is not a cut in overall support.

Baroness Anelay of St Johns

I am grateful to the Minister for his further explanation, particularly for responding to the concerns of the UNHCR. Naturally, we will go back to it to see what further briefing it wishes to bring forward as a result of the noble Lord's words.

I make it clear that I do not object to the change in procedure that the Government are seeking to enforce by removing backdating of benefits and having a discretionary loan system. How could I? As I mentioned to the Minister, I remember all too well when we on these Benches introduced the social fund we were landed on from a great height by the Labour Party, which has now converted to our view. The important thing is to ensure that loan systems are properly funded, and the organisation is transparent and workable.

In one breath the Minister tells us that the money saved from abolishing backdated benefits will fund the new loan system, and in another breath he tells us that the statistics about those funds are not kept. I am grateful to him for bringing forward the amount of £11 million a year as the estimated cost. No doubt we, and the Government, will want to look more carefully between now and Report at what size of fund it will be reasonable for the Government to be able to set up.

I was concerned to hear repeated what was in the letter in regard to the gap between ending the back-dating of benefits and starting the loan scheme. I accept entirely what the Minister said—that it would not be appropriate to have on the face of the Bill my amendment which required the regulations for the fund to be in force before back-dating ended—and I appreciate that that does not normally happen in legislation. However, what normally happens then is that the Minister goes on to say, "I am going to give an assurance that we will not get rid of the backdating until we have in place the regulations to implement the scheme". He has not given me that assurance on this occasion. I hope that by the time we get to Report stage he will have had a conversion. I beg leave to withdraw the amendment.

Amendment No. 14, as an amendment to Amendment No. 13, by leave, withdrawn.

[Amendment Nos. 15 and 16, as amendments to Amendment No. 13, not moved.]

On Question, Amendment No. 13 agreed to.

Lord Rooker moved Amendment No. 17:

After Clause 9, insert the following new clause—

"INTEGRATION LOAN FOR REFUGEES

(1) The Secretary of State may make regulations enabling him to make loans to refugees.

(2) A person is a refugee for the purpose of subsection (1) if the Secretary of State has—

1. (a) recorded him as a refugee within the meaning of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, and
2. (b) granted him indefinite leave to enter or remain in the United Kingdom (within the meaning of section 33(1) of the Immigration Act 1971 (c. 77)).

(3) Regulations under subsection (1)—

1. (a) shall specify matters which the Secretary of State shall, in addition to other matters appearing to him to be relevant, take into account in determining whether or not to make a loan (and those matters may, in particular, relate to—
1. (i) a person's income or assets,
2. (ii) a person's likely ability to repay a loan, or
3. (iii) the length of time since a person was recorded as a refugee),
2. (b) shall enable the Secretary of State to specify (and vary from time to time) a minimum and a maximum amount of a loan,
3. (c) shall prevent a person from receiving a loan if—
1. (i) he is under the age of 18,
2. (ii) he is insolvent, within a meaning given by the regulations, or
3. (iii) he has received a loan under the regulations,
673
4. (d) shall make provision about repayment of a loan (and may, in particular, make provision—
1. (i) about interest;
2. (ii) for repayment by deduction from a social security benefit or similar payment due to the person to whom the loan is made),
5. (e) shall enable the Secretary of State to attach conditions to a loan (which may include conditions about the use of the loan),
6. (f) shall make provision about—
1. (i) the making of an application for a loan, and
2. (ii) the information, which may include information about the intended use of a loan, to be provided in or with an application,
7. (g) may make provision about steps to be taken by the Secretary of State in establishing an applicant's likely ability to repay a loan,
8. (h) may make provision for a loan to be made jointly to more than one refugee, and
9. (i) may confer a discretion on the Secretary of State.

(4) Regulations under this section—

1. (a) shall be made by statutory instrument, and
2. (b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament."

The noble Lord said: I have some notes but they do not go into detail. I shall have to do that on Report and when we come to the regulations.

As I said, the money saved by abolishing the current back payments will be used to introduce the new integration loan for which refugees will be able to apply. Amendment No. 17 seeks to introduce the integration loan, to be funded out of that money. So it will not be new money; it will be funded out of the current back-payment system.

We want to move away from the current system under which payments are made to all refugees, calculated according to the amount of time spent awaiting an asylum decision. Under the new system, the Government will be able to target loans to those refugees who are most in need of help to establish themselves in their new lives in the United Kingdom and, ultimately, to facilitate their successful integration into society.

We are aware that many refugees who have sought protection and asylum in this country have skills and talents which are certainly needed in the United Kingdom. In providing the loan, the Government will be seeking to ensure that the refugees can quickly establish themselves in the United Kingdom, enabling them to fulfil their potential and contribute to society and the economy. By recovering the money loaned, the system has the potential to become a tool for facilitating refugee integration, not only for refugees today but for those who will need our help in the future.

We are committed to administering the loan in the most cost-effective way possible and we are currently conducting detailed work across departments—including the Department for Work and Pensions and, obviously, the Treasury—to establish how the loan might best be delivered. I am not in a position to give that information today. At this stage it seems likely that the money disbursed by the Home Secretary will be recovered via mechanisms already established by the Department for Work and Pensions for collecting money owed either to that department or a third party.

That is about it at this stage. I hope to have more information on Report but, quite clearly, a considerable amount of work needs to be done in establishing the loan system. I should say to the noble Baroness that I suspect that even at Report stage I may not be in a position to give her the answers she has requested about one scheme not ending before the other starts. I beg to move.

5.45 p.m.

Baroness Anelay of St Johns moved, as an amendment to Amendment No. 17, Amendment No. 18:

Line 3, leave out "may" and insert "shall"

The noble Baroness said: In moving Amendment No. 18 as an amendment to Amendment No. 17, I shall speak also to Amendments Nos. 19 to 23, which are also amendments to Amendment No. 17.

There was such a refreshing blast of honesty from the Minister that it nearly knocked me off my feet. The Government are saying, "We do not know what we are doing", which is what I was accusing them of in my opening remarks. I appreciate that the system will be difficult to set up, but I had hoped that the Government would have thought a little more about a system that will need to deliver support to the vulnerable refugees we want to integrate into the country.

The Minister said that he could not go much further now because the Government are having discussions with the DWP—I hope that they are because some of this will be complicated to implement—and we hope that he will come forward with more information on Report. He has warned me today that he cannot give me the answers. I would never warn the Minister, but I would advise him that it might be helpful if I at least put the questions so that they are on record. The Bill team can then advise the Government whether there is any hope of having the answers by the Report stage or even earlier by letter.

Let me briefly explain the individual amendments. Amendment No. 18 is the old friend of all opposition parties. It seeks to change "may" to "shall". It reflects our approach in the debates on the abolition of backdating benefits. If the Government intend to replace back-dated benefits by loans, it is clear that, having done so, there should be a duty on the Secretary of State to make regulations ensuring that there is a loan system in place. It would be very odd if the Government did not wish to do that.

Amendment No. 19 returns to the familiar theme of requiring the Secretary of State to take actions that are based on objective rather than subjective grounds. In the debate on an earlier group of amendments the noble Lord, Lord Avebury, referred to the importance of this. People need to know the reasons for the decisions of the Secretary of State. Subsection (3) of the proposed new clause provides that regulations shall specify matters that appear to the Secretary of State to be relevant when he is deciding whether or not a loan should be made. Such a decision clearly needs to be made on objective grounds.

Amendment No. 20 has been tabled in order to ask the Minister to explain why the Government have restricted so closely the list of criteria in subsection (3)(a). The list illustrates the reasons why someone may not get a loan. My amendment seeks to establish that the Government should also take into account the refugee's family responsibilities—that is, whether or not he or she is responsible for a child or a dependent adult. I am rather surprised that that obvious provision was not on the list. What is the reason for that omission?

Amendment No. 21 seeks to delete subsection (3)(d)(i), which gives the Secretary of State the option to charge interest. What are the Government's intentions? Will some people be charged interest and others not? Will the rate of interest be different for different recipients of loans? At what level do the Government expect to set the rate of interest? Will it be a commercial rate of interest, or will it reflect what happens currently within the DWP?

Amendment No. 22 seeks to delete subsection (3)(i). This is an extraordinary part of the clause because, as far as I can see, it gives the Secretary of State a discretion to do whatever he likes. It looks as though the Government have grown tired of trying to work out how a loan system should work, have given up and have put a catchall into the clause in order that they can make up policy as they go along. I hope that that is not the case, but what is the purpose of subsection (2)(i)? If the Committee were to pass such a statutory instrument, we would be giving the Secretary of State a blank cheque.

Amendment No. 23 seeks to add an extra subsection to the list to ask the Government about the way in which they intend to administer loans made under subsection (3)(h), which makes it possible for the Secretary of State to grant a loan jointly to more than one refugee. How would a legal requirement for this to be repaid by a specific person be imposed? The amendment simply requires the Secretary of State to specify which refugee has the legal responsibility to repay the joint loan. It could be that the Government intend that a joint loan would place joint liability on all those who benefit from it, so that if one dies the remainder have to pay up. Is that the case?

More generally, the Government need to give more information. For example, where do refugees apply for loans? Physically, where do they go? Which budget will reflect the annual costs of loans made and repaid? In the debate on the previous group of amendments, the Minister said that the abolition of the back-dating of benefits would be used to fund this loan system, so will that amount of money be reflected in the Home Office budget or the DWP budget?

With not much hope of getting any answers after the refreshing opening remarks of the Minister, I beg to move.

Lord Avebury

Without being clairvoyant, I think I can predict what the Minister's answer to the noble Baroness will be. He will say, "Wait and see what the regulations say. We will bring them forward as soon as possible".

The Minister has explained that the new clause introduces the refugee integration loan which will be available to all new refugees and would be linked to need, unlike the existing lump sum payments which depend on the length of time someone had been waiting in the queue. The Government claim that this will be a more equitable system and that it has the potential to become a powerful tool in facilitating refugee integration.

We welcome the idea of refugee loans. We think it is an excellent idea to make them available to new refugees who might not necessarily be creditworthy. But to establish a whole new set of regulations for determining need, checking the applicant's income and assets, evaluating his ability to repay, and so on, is cumbersome and expensive, as I said in the debate on the previous amendment. We do not consider that the Home Office is qualified to enter the banking business. We suggest that perhaps it should examine the idea of offering guarantees on loans which would be taken out by refugees from the ordinary banking system. Have the Government discussed these proposals with the banks, and what do the banks think about the Home Office going into competition with them?

How much has been spent by the Home Office so far in designing this loan scheme? How much will it cost to set up the mechanisms which are specified in the new clause? How much will it cost to vet and approve the applications when the scheme is up and running, a task which could very well be undertaken by the ordinary banking system?

In the end, most or all of the money saved could be swallowed up in the administrative costs incurred by civil servants who know nothing about banking, meritorious as they may be in other respects. The Bank of Queen Anne's Gate has an ominous sound to it, and this scheme, hastily cobbled together to please News International, should be reconsidered.

Will the calculation begin from the time when the back payments are abolished? If so, will potential applicants have to wait until the fund has built up to a certain level of capital? After one year, for example, if the fund has reached £5.5 million, will the Home Office press the button and say that nine people can start applying for loans? Incidentally, I have no greater hope of receiving answers to these questions than the noble Baroness had, but I am putting them on the record so that the Minister can think about them and come back to me later. If that were the case and the loan scheme does not effectively get under way until the saving in the back payments has reached a certain minimum level, then there will be quite a long gap between the ending of one scheme and the beginning of another. If the Minister says that the level of capital has to be at least £5.5 million, we are talking about a year's delay before the system gets under way. That could be avoided if the Minister will consider instead guaranteeing loans that are funded through the ordinary banking system.

Baroness Carnegy of Lour

It seems to me that, having done away with the back payment scheme, it would be absolutely wrong for the Bill to include an optional loan scheme when it leaves this House. Proposed subsection (1) states: The Secretary of State may make regulations to establish a loan scheme. Amendment No. 18 in the name of my noble friend Lady Anelay would provide that he must establish such a scheme. I should have thought that noble Lords would be wise to accept that amendment now, because an optional loan is simply not on.

Moreover, we do not know what the optional loan scheme is. I do not think that the Bill should leave this House while it includes proposed subsection (3)(i) which states that regulations under subsection (1), may confer a discretion on the Secretary of State". That provision should not be in the new clause, and I hope that we will not allow it. It seems quite extraordinary. My noble friend said that it was like signing a blank cheque—that is literally what it is.

Lord Hylton

It would be helpful if the Minister could give us some indication of whether there will be a maximum amount of loan for which an individual or a family can apply. Will there be some kind of ceiling, perhaps equivalent to the maximum amount of rebate of benefits which an individual could previously have claimed or been accorded? The noble Lord, Lord. Avebury, asked whether everybody who is accepted as a refugee would be eligible, or will it only be those who pass through NASS accommodation? These are quite important considerations.

Lord Rooker

Colleagues have been quite generous in the expectations they have of me. I asked some of these questions myself the other day, and I will be getting the answers in due course. I do not have them tonight, but I have a few points to make on the amendments which have been tabled.

Amendment No. 18 would make it mandatory for the Secretary of State to make the regulations. We are committed to helping refugees establish themselves in the UK and, as such, to introducing the loan scheme as soon as practicable. However, we do not think that there is anything to be gained by placing a duty on the Secretary of State to make the regulations enabling him to make the loans. We intend to bring in a loan scheme.

Amendment No. 19 seeks to amend the definition of the matters the Secretary of State may take into account in determining whether to make a loan so that it will mean that he has reason to believe that they are relevant rather than that they appear to him to be relevant. Again, we do not think that in practice there would be any significant difference between these two forms of wording. Where it appears to the Secretary of State that a matter is relevant, we can also say that the Secretary of State has reason to believe that that is the case. We do not think that the amendment is necessary. I am happy to look at all these points, because this is a new clause in a Committee on Recommitment. We will be going over everything again between now and Report.

Amendment No. 20 would insert an extra category of, whether or not that person is responsible for a child or dependent relative", to those matters the Secretary of State may consider in determining whether to make a loan. At this stage—I am digging myself into a pit here—we do not wish to be prescriptive about the matters that may be taken into account when considering whether to make the loan. We particularly want to ensure that those matters which may be taken into account will not militate against refugees who may not have had the opportunity to build up a history of creditworthiness. Careful consideration and detailed work will be required successfully to balance the administration of collecting loans with the features particular to new refugees as a group who have been in the country for only a relatively short period and who have not had access to other forms of credit. It is important that we do not limit ourselves at this point to taking specific points into account when determining whether to make a loan.

The matters listed in the Bill are not to be perceived as an exhaustive list of matters that the Secretary of State will definitely want to include in regulations as those things he wants to take into account when considering whether to make a loan but rather a list of examples of matters the Secretary of State may wish to take into account. I do not consider, therefore, that it is necessary to add a further example to this list.

Amendment No. 21 seeks to remove the words "about interest" from the list of provisions the Secretary of State may make with regard to repayment of a loan. Again, this is not intended to be an exhaustive list of matters about which the Secretary of State will definitely make provision. I want to reassure noble Lords that the Government do not intend at this stage that interest will be payable on loans. As a matter of general principle, we do not intend that interest will be payable. But it is important that the Secretary of State has the flexibility to make provision about interest, in the event that it is needed at any time in the future. It is purely a safeguard.

Parliamentary time is not always available when one needs it, but the Home Office appears to acquire substantial chunks. I cannot use the excuse that we may have to wait a long time for primary legislation. However, we have the opportunity to do that in setting up the primary legislation for the loan and, therefore, it makes sense to put the matter in. At this stage, we do not intend, as a matter of principle, that interest will be payable.

Amendment No. 22 seeks to remove the power for the regulations to confer a discretion on the Secretary of State. It is anticipated that the Secretary of State will have a discretion whether or not to grant a loan in a particular case. It is important that, while the regulations will set out the matters that must be taken into account in determining whether or not to make a loan, the ultimate decision of whether a loan is to be made is for the Secretary of State. A loan cannot be guaranteed to any refugee. That is not the purpose of this provision. It is not "loans for all". Of course, the Secretary of State in exercising that discretion, will have to act in accordance with the regulations and with the general public law principles, although he has to be reasonable.

6 p.m.

Baroness Carnegy of Lour

I am grateful to the noble Lord for giving way. Subsection (3)(i) states: may confer a discretion on the Secretary of State". Surely, it should say "make a loan". It is a very open-ended statement; it sounds like discretion to do anything.

Lord Rooker

The discretion will be defined by the words in this clause of the Bill—they will be in a section of the Act. The discretion has to be considered in the context of the clause.

The point about couples is not unimportant. Amendment No. 23 seeks to establish that where a loan is made jointly to one or more refugees, the Secretary of State shall make provision about which refugee is responsible for repayment of the loan. It is commonplace that a couple who borrow money for purposes that benefit both, such as the purchase of furniture or a mortgage, do so as a joint venture. It seems equitable that, when people borrow money to establish themselves together in a new life which they share, the responsibility for repaying the money that has helped them is shared. Therefore, it is not necessary to limit the responsibility for repaying the loan to only one beneficiary.

I have been able to give slight but not total amplification. We have a long way to go in explaining how the system will work, when it will be set up and whether there will be a limit on how much a refugee can borrow, which one noble Lord asked about. One pertinent question was asked by the noble Lord, Lord Avebury: given that the money from the loans will come from stopping the back-dated payments and given that there is not, as I understand it, to be any new money, how long will it be before a fund is established by which the loans can be paid out? I shall have to return with an answer to that. The scrutiny is all about that.

Baroness Anelay of St Johns

I shall not prolong the agony—an agony for those on this side of the House—on this group of amendments much longer. We want to ensure that refugees who need to be settled here will have certainty about what support they may receive. The Minister has said that he will do his best to return with answers at Report stage. I remind the Minister that time is short. Report stage will be on 28 June and I understand that Third Reading is scheduled for 6 July. It sounds as though the Home Office will be even busier than ever.

It is right for my noble friend Lady Carnegy to elaborate on some of the amendments on which I had been somewhat brief. In particular, she referred to the issue of subsection (3)(i) and the matter of discretion. The Minister sought to reassure us by saying that by looking at the Government's new clause we should read (3)(i) together with subsection (1), which states: The Secretary of State may make regulations enabling him to make loans to refugees". Yes, we know that the discretion to act is within the terms of regulations governing such a loan. As I read it, the difficulty is that the discretion that appears at the end of subsection (3) in (i), means that the Secretary of State can make regulations literally allowing him to do whatever he chooses, ignoring the rest of what has gone in between. That is where I have difficulty.

Lord Rooker

I am more than happy to give it further consideration.

Baroness Anelay of St Johns

I am most grateful to the Minister. I beg leave to withdraw the amendment.

Amendment No. 18, as an amendment to Amendment No. 17, by leave, withdrawn.

[Amendments Nos. 19 to 23, as amendments to Amendment No. 17, not moved.]

On Question, Amendment No. 17 agreed to.

Lord Rooker moved Amendment No. 24:

After Clause 14, insert the following new clause—

"PERSON SUBJECT TO IMMIGRATION CONTROL: PROCEDURE FOR MARRIAGE: ENGLAND AND WALES

(1) This section applies to a marriage—

1. (a) which is to be solemnised on the authority of certificates issued by a superintendent registrar under Part III of the Marriage Act 1949 (c. 76), and
2. (b) a party to which is subject to immigration control.

(2) In relation to a marriage to which this section applies, a notice under section 27 of the Marriage Act 1949 (c. 76)—

1. (a) may be given to the superintendent registrar of a registration district specified for the purpose of this paragraph by regulations made by the Secretary of State,
2. (b) may not be given to the superintendent registrar of any other registration district,
3. (c) may be given only if each party to the marriage has been resident in a registration district for the period of seven days immediately before the giving of the notice (but the district need not be that in which the notice is given and the parties need not have resided in the same district), and
4. (d) shall state, in relation to each party, the registration district by reference to which paragraph (c) is satisfied.

(3) The superintendent registrar shall not enter in the marriage notice book notice of a marriage to which this section applies unless satisfied, by the provision of specified evidence, that the party subject to immigration control—

1. (a) has an entry clearance granted expressly for the purpose of enabling him to marry in the United Kingdom,
2. (b) has the written permission of the Secretary of State to marry in the United Kingdom, or
3. (c) falls within a class specified for the purpose of this paragraph by regulations made by the Secretary of State.

(4) For the purposes of this section—

1. (a) a person is subject to immigration control if—
1. (i) he is not an EEA national, and
2. (ii) under the Immigration Act 1971 (c. 77) he requires leave to enter or remain in the United Kingdom (whether or not leave has been given),
2. (b) "EEA national" means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time),
3. (c) "entry clearance" has the meaning given by section 33(1) of the Immigration Act 1971 (c. 77), and
4. (d) specified evidence" means such evidence as may be specified in guidance issued by the Registrar General."

The noble Lord said: I am sure that noble Lords will be aware that over a period of years and certainly recently there has been a good deal of concern regarding the possibility that the number of marriages taking place in the United Kingdom, where there is no intention of entering into a subsisting relationship, but where the purpose is solely to circumvent our immigration control, is on the increase.

This is not an area in which it is easy to collate evidence. We have asked for many figures as I did when I was at the Home Office. However, the pattern of behaviour which is being reported to us by registrars through the channels that have been put in place under Section 24 of the Immigration and Asylum Act 1999 and through other intelligence sources, indicates that sham marriages, as a means of circumventing existing immigration controls, are increasing.

To date in 2004 the Immigration and Nationality Directorate has received 2,251 Section 24 reports from registrars. That is a significant increase over the 2,700 reports received in total in 2003. Immigration and Nationality Directorate officials believe that this is due both to an increase in the sham marriages taking place and renewed confidence in registrars by the level of action taken against these offenders.

In the last financial year, in following up registrar reports and other intelligence sources, UK immigration enforcement teams in London have carried out operations at over 60 weddings resulting in the arrest of 110 individuals. Those operations have not only resulted in the removal from the United Kingdom of illegal immigrants, but 37 of those arrested during the operations were charged with criminal offences. Those figures are indicative of the significant scale of the current problem where immigration offenders, who wish to remain in the United Kingdom, see the abuse of existing UK marriage laws as an easy option to get around existing immigration controls.

The UK Immigration and Nationality Directorate has continued to take operational counter-measures to combat this area of abuse, which intelligence suggests is on the increase. Marriage applications received by the Immigration and Nationality Directorate have been made subject to additional scrutiny, which has resulted in the detection of increased levels of fraudulent settlement applications, many involving forged supporting documentation. Registrars are also reporting increased levels of fraudulent documentation being presented in support of notifications for marriage at UK register offices.

It has become clear that organised criminality is becoming increasingly involved behind many of the applications received. Immigration enforcement action has also been stepped up specifically to target marriage abuse. Last month more than 200 suspected sham marriages were visited by immigration officers as part of an organised, high level enforcement operation. I repeat that several of those resulted in the arrest of over 100 individual offenders. A further 28 marriages did not proceed, following enforcement intervention.

It is clear that where there is abuse of our existing immigration controls we must move to stamp it out. We have to acquire the evidence, which is not always easy. We must ensure that our immigration system is robust in preventing those engaging in sham marriages from bending the rules to the detriment of those entering this country legally through managed migration channels. It is the Government's view that legislative changes are needed to strengthen our capability to deal with this abuse where it occurs and to protect the integrity of our marriage ceremonies.

The amendments that we are bringing forward today are in pursuit of this aim and are specifically designed to tackle marriage abuse at the earliest opportunity; that is before a sham marriage has taken place, after which it can become increasingly difficult to remove those seeking to circumvent current immigration controls by this means.

The first amendment introduces two new requirements for persons subject to immigration control who wish to marry in the UK. The definition of "subject to immigration control" for these purposes is given in subsection (4) of the first amendment, and applies to those who are not European Economic Area nationals and who require leave to enter or remain in the UK.

The first requirement, set out in subsection (2), is that notice of such a marriage can be given only at a registration district that has been designated for this purpose by regulations made by the Secretary of State, after consultation with the relevant Registrar General. The purpose of these centres is to restrict the capacity to authorise marriage involving non-EEA nationals to designated register offices. That will enable us to Focus our enforcement efforts on a more concentrated area, and also allow intelligence and expertise on marriage abuse to be built up in these dedicated centres.

This is not an easy area for government intervention. We do not wish to lay down rules that would make it harder for genuine couples to enter into marriage. Home Office officials are working closely with registrars to ensure that our proposals achieve the necessary balance between facilitating the vast majority of genuine marriage applicants and tackling abuse. A joint Immigration and Nationality Directorate and registrars group has been set up and will seek to strike a balance between the number of centres required to support a focused, targeted enforcement effort and a minimum of undue inconvenience to non-EEA nationals who will be required to travel to give notice of their marriage. I do not know the figure involved, but we are thinking of about 50 at the present. There is no set figure.

These new requirements may lead to an initial increase in the use of forged documents being used to facilitate sham marriages. Registrars, however, may refuse to take notice of a marriage when they believe that a forged document has been used and the Immigration Service will provide enhanced training and support to registrars to help them detect such documents.

The noble Baroness, Lady Anelay, has expressed concern to my officials at the possibility of a person who does not look like an EEA national being discriminated against following the introduction of these new procedures for the notification of marriages in the UK involving non-EEA foreign nationals. I reassure her that that is not the case. Clear instructions already exist for registrars in support of their statutory function under Section 24 of the Immigration and Asylum Act 1999 to ensure that they avoid any discriminatory practices in carrying out their duties. These instructions will be updated in the light of the new requirements. The factors taken into account by registrars when considering reporting a suspected sham marriage must be obtained by direct observation or during the questioning of the parties involved. Determination of nationality is on the basis of documentation produced and not based on the appearance of the parties involved.

Current instructions to registrars make it clear that particular care must be taken to treat all parties equally and without discrimination and that a person must not be treated less favourably on grounds of his or her race, colour, ethnic or national origins, nationality or citizenship when carrying out any function that involves providing a facility or service to the public. Section 24 reports are submitted to the Home Office only on the basis of reasonable suspicion that a marriage is a sham and will be based on a combination of factors, such as the degree of interaction between the couple and doubts about the authenticity of supporting documentation produced, together with the registrar's observation of a couple's behaviour.

6.15 p.m.

The second new requirement, set out in subsection (3), is that notice of a marriage given by persons subject to immigration control shall be accepted by the registrar only when that person has been specifically authorised to marry in the United Kingdom. That authorisation will be either in the form of an entry clearance granted expressly for the purpose of enabling the person to marry in the UK, or in the case of those already here, by written permission of the Secretary of State.

The criteria by which such authorisations will be given in-country will be set out in detail in administrative guidance, but we envisage at this stage that it will be refused in cases when the individual is here unlawfully, when the individual has leave to remain in the UK for less than six months, and when it is reasonable for that person to return to their country of origin and apply from there for entry clearance in order to marry. That is not unusual. Lots of my former constituents went home to wait in the queue to marry and did not to seek to jump the queue. Subsection (3)(c) also gives a power to the Secretary of State to exempt certain classes of individuals subject to immigration control from this requirement. That will give us the flexibility to respond to any change in circumstances or patterns of behaviour in this area so as best to ensure that the regime is appropriate and proportionate at any given time.

The introduction of designated register offices and the requirement for entry clearance or a Home Office certificate of approval would provide a complementary two-pronged approach to tackling marriage abuse. To begin with, non-EEA foreign nationals who are present in the UK could give notice of a marriage only upon production to a registrar of either a certificate of approval or proof of entry clearance as a fiancé or marriage tourist—or proof that they fall within any exempted categories. When they do not satisfy those criteria, they would need to return home and apply for entry clearance from abroad to return to the UK or go to another European Union country in order to get married. That would have a similar effect to the "no switching" rule applied to third-country nationals marrying British nationals, and would also cover marriages to EEA nationals, where levels of marriage abuse are increasing.

The introduction of a certificate of approval requirement, in addition to the entry clearance process, would provide an early interaction between non-EEA foreign nationals seeking to marry in the UK and immigration officials, who would be able to examine the validity of the identity and immigration documents provided to ascertain whether the person should be required to apply for entry clearance for the purpose of the marriage. The introduction of this measure is therefore likely to provide a significant deterrent against those intending to enter into a sham marriage for immigration purposes. The chances of couples coming into contact with immigration officials will be much higher, which will not be welcomed by those who are not genuine, and will make them less likely to seek to engage in a sham marriage to avoid immigration controls.

All non-EEA foreign nationals would then be required to give notice of an intended marriage at a designated register office, where the Immigration Service will be in a position to target its intelligence and enforcement effort in order to reinforce capabilities to tackle abuse of the immigration system via the sham marriage route. As there are significant difficulties in taking action against a suspected sham marriage involving a third-country national and an EEA national after the marriage has taken place, the two measures combined will make it more difficult for them to enter into a sham marriage in the first place.

The final part of the first amendment contains consequential amendments to the Marriage Act 1949 and the Regulatory Reform Act 2001 and also deals with the manner in which the Secretary of State shall be able to exercise the powers that I have just described. The second amendment deals with the question of the cost of the certification process set out in subsection (3)(b) of the first amendment. We believe that it is reasonable for the cost of the process to be recoverable by the Immigration Service. Although we certainly wish to ensure that any additional burden on genuine couples of any of these provisions is kept to a minimum, we believe that, in the context of a genuine marriage, the payment of a fee is not unreasonable. The actual fee will be set out at a later date, but is likely to be comparable to the fee payable for leave to remain applications, which is currently £155 by post and £250 in person.

Although people will be required to go to the designated register office to give notice of the marriage, once they have secured the permission to marry, they are free to marry anywhere they choose. They do not have to marry at the designated office. It is purely the giving notice of the marriage at the designated office.

Lord Avebury

Would this be one of the purposes for which a loan might be granted?

Lord Rooker

I could not possibly answer that question. Marriage is not cheap anyway, so the extra cost of this certificate will not break the bank for people who genuinely wish to marry.

The Government will continue to pursue a policy of managed migration to the UK, with procedures in place which allow us to facilitate genuine applications from those from whom our society derives real benefit—social and economic. That includes those who wish to enter into a genuine marriage with a United Kingdom citizen or an EEA national and settle here. The ability to maintain an effective immigration control is crucial in promoting community cohesion, and good relations between people of different nationalities and ethnic groups within the UK.

Abuse of the marriage laws under which people are able, or perceived to be able, to circumvent the immigration rules creates mistrust, fosters resentment between different groups and certainly undermines the integrity of the institution. We are confident that these amendments will help to protect the institution of marriage within the UK, while enabling us to maintain appropriate secure immigration controls. I very much hope they will be supported. I beg to move.

Lord Avebury moved, as an amendment to Amendment No. 24, Amendment No. 25:

Line 30, after "Kingdom," insert—

"( ) is lawfully resident in the United Kingdom and has been so resident for a period exceeding 6 months,

( ) has been given leave to remain in the United Kingdom for a period which has not expired and exceeds 12 months or is indefinite,"

The noble Lord said: The Minister has told us that it has become clear through intelligence and other channels that abuse by those seeking to enter into sham marriages as a means of circumventing immigration controls is on the increase. He disclosed some of the evidence on which that assertion was based. I am particularly grateful to him for giving the figures of notifications by registrars under Section 24 of the 1999 Act, but I made a search to see if I could find these figures on the Home Office website and I was unsuccessful. Perhaps when the noble Lord winds up he will say what mechanism he envisages for ensuring that these figures are regularly reported and available to Parliament in the normal course of events, so that we do not have to wait until the Minister stands up at the eleventh hour on an amendment which he has just tabled to a Bill to enable us to scrutinise the rate of increase to which the noble Lord referred. I would like to have had the figures from the 1999 Act onwards so that we could see how these reports are increasing.

I also ask the noble Lord to give some idea whether registrars, having become used to the obligation to report suspicious marriages under Section 24, have been doing so more regularly than they were at the time of the 1999 Act. It could be that the rise in the figures is partly due to a greater assiduity by registrars or the perception by registrars that they should report cases where there is any conceivable doubt. I am rather borne out in that conclusion when I compare the figures that the noble Lord gave: for example, the 2,251 reports which have been made so far in this calendar year under Section 24, with the 37 criminal offences which have been detected as a result.

The 37 offences do not seem to be a very large haul from the 2,251 reports of suspicious marriages. If I were a registrar, and looking at this obligation, I would make a report when there was the slightest doubt so that some investigation could be conducted. I would be erring on the safe side. So perhaps that figure is not a true indication.

Lord Rooker

I appreciate what the noble Lord says. Indeed, I said as much in my notes. There might be some indication that registrars are doing more reports because they know something is being done about it. There may have been a reluctance before Section 24 came in—that if suspicions were reported nothing would be done about it. There was no mechanism. There is a mechanism now. That is similar to other issues: has the incidence increased, or has the reporting of the incident increased? Not quite the same thing.

Lord Avebury

The Minister has made a good point. He reinforced what I said: that registrars may not have considered it worth bothering to make a report under Section 24 until they saw—as he put it—that there was some indication that the Government would do something about it.

The Government say that by requiring all non-EEA nationals to give notice of a marriage in a designated register office, the Immigration Service will be able to focus its enforcement and intelligence efforts on a reduced number of centres, in order to reinforce the capability of tackling abuse of the system via sham marriages. The Home Office press release of 8 June said that this amendment will require non-EEA foreign nationals to demonstrate that they have entered the UK lawfully and had permission to be here before giving notice of an intended marriage at a designated register office. The amendment goes much wider and provides that a person subject to immigration control is not to be married unless he satisfies one of four conditions.

The first, as I understand it—although it is not clear on the face of the amendment—is that he gets married according to the rites of the Church of England following the publication of banns of matrimony, or following the grant of a licence from the ecclesiastical authority. Secondly, that he has been granted entry clearance for the express purpose of getting married in the United Kingdom. Thirdly, that he falls into a class which is to be specified by the Secretary of State. The noble Lord has not given us any indication of how that power is to be exercised. Fourthly, he has the written permission of the Secretary of State. Those are the only four circumstances in which he can lawfully get married.

The amendment discriminates against anyone who is a member of a religion other than the Church of England, because the restrictions will not only affect marriages that take place in register offices, but also Jewish or Quaker weddings, or weddings which take place in any venue apart from a Church of England church or chapel. That potentially breaches Article 4 of the convention on the status of refugees because it will prevent a refugee who is not a member of the Church of England practising his or her religion in so far as he will not be able to take part in a ritual which is central to most religions.

It looks to us as if the amendments as drafted extend the prohibition on marriage to anyone who is subject to immigration control, who has not been granted entry clearance for the express purpose of getting married in the United Kingdom. Subsection (3) merely provides the Secretary of State with the power to specify which other people will be permitted to marry. Persons subject to immigration control include those with indefinite leave to remain; refugees; Commonwealth working holidaymakers, in the UK for up to two years, and work permit holders who may be resident in the country for even longer; overseas students and others on short-term stays, including ordinary visitors. If the Government want to restrict the right only of overstayers and illegal entrants to marry, why not confine the clause to persons here unlawfully, rather than extend it to all EEA nationals as a whole?

If cases are to be scrutinised individually to see whether there are grounds for suspicion that the marriage is being entered into for the purpose of evading immigration law or rules, then presumably every couple will have to undertake some kind of test where officials will have to look at the intentions and motives of the parties. I fear that the infamous "primary purpose" rule, which was abolished by the Government in 1997 soon after taking office, will be resuscitated in another guise.

How can the Government forbid an asylum seeker from marrying, considering that if that person is eventually granted refugee status, the decision on status merely recognises that he or she is and always has been a refugee?

Has the Secretary of State thought of the effect of the restriction on the status of women and children, when a pregnant woman is forbidden from marrying the father of her child? That will have very serious consequences for the social, economic, legal and moral status of the woman and her child in the wider community. It also runs counter to all the Government's efforts to support and encourage family life and the protection of children.

Subsection (3)(b) provides that the Secretary of State may give a non-EEA national permission to marry. We need to know how that is to be exercised. No doubt there will be criteria laid down in the regulations—the Minister gave some hint of that—but we need to have some idea of the Government's thinking if we are to do our job properly. Where a Secretary of State is given discretion over a matter that will profoundly affect the lives of thousands of people every year, Parliament would not be doing its job properly if it were to hand them a blank cheque. I wonder if the JCHR is seized of the matter, and whether it would express an opinion on whether these proposals are compatible with Articles 12 and 14 of the European Convention on Human Rights—the right to marry and the right to non-discrimination in the exercise of ECHR rights respectively. To force a couple to remain separate or to live together in contravention of their community's social and religious rules, to deprive a child of his father, and to discourage someone from practising her religion in the interests of immigration control cannot be in the public interest.

We acknowledge that there are sham marriages and that measures need to be taken against them, but we object to the Government's pernicious habit of introducing major amendments at the eleventh hour to deal with problems that could well have been foreseen at an earlier stage, allowing for proper consultation with the agencies concerned.

We have not seen the whole of the evidence on which Home Office estimates are based, nor the research which is said to have been conducted by the Local Authorities Co-ordinators of Regulatory Services, but I am sure that if that information, together with an analysis of the five years of reports submitted to the Secretary of State over the five years since the 1999 Act, had been published, a better solution could have been developed, avoiding the possibility of ECHR breaches, and of interference with legitimate marriages. I beg to move.

6.30 p.m.

Baroness Anelay of St Johns

I should like to speak to my Amendments Nos. 26 and 27, which are grouped with the amendments that we are discussing. I begin by making the obvious point that the trade in sham marriages for the purposes of obtaining residence here is obnoxious. We are all agreed on that.

The Minister talked about the difficulty of assessing the number of sham marriages that occur. The noble Lord, Lord Avebury, said that we needed to know about the evidence and what consultation had been carried out which indicates that there is a significant problem, and that the measure we are discussing constitutes the appropriate way to try to resolve it.

Earlier, the noble Lord, Lord Avebury, teased the Committee by quoting at length from the Sun. I shall quote from the Evening Standard, but rather more briefly. An article in today's Evening Standard reports the comments of Mark Rimmer, a service director for registrations of births, deaths and marriages, who, believes rising numbers of foreigners are organising the ceremonies in a desperate bid to stay in Britain … He claimed racketeers setting up the fake marriages were now operating nationwide". He also claimed that, one in five marriages in London [are] bogus". That seems an extraordinary claim, but it is made by someone who has tried to operate the system with integrity. It is difficult if registrars are put in a position where they feel that they do not have the proper authority to stop sham marriages going ahead.

We accept that there is a problem but we need to know the scale of the problem and, consequently, how the Government should try to attack it. We know that the problem has existed for some time. The amendment has come at the eleventh hour and some of its provisions seem rather daunting. The Minister said that last week I asked about the sensitivity with which the measures would be implemented. I understand perfectly well that approaches to marriage, and the reasons for marriage, may be different in different cultures. We must not discriminate against people who arrange their marriages for different reasons in different ways. I asked whether there would be a race equality impact assessment. I was pleased to learn at lunchtime that one has been carried out since last week. However, as I received the rather lengthy document only at lunchtime I have read it but not yet properly considered it. We shall have a chance to do that before Report.

The Minister's explanation of the measure today does not seem to match the hyperbole of the Home Office press releases that have been issued since April in which the Government said, "There is a dreadful problem, but we have the answer and here it is", as they said in the press release of 8 June to which the noble Lord, Lord Avebury, referred. However, the Minister appeared to say that the new proposal will create an extra tier of bureaucracy—the "super registrars"—in an as yet undefined number of districts, and that these "super registrars" would work closely with the Immigration Service to try to feed off each other's expertise and spot, and, they hope, stop, sham marriages.

When the Government first said that they would bring forward proposals, they referred to two major points. The press release of 22 April states that both parties would need to attend one of the specialist register offices in person to obtain authorisation. However, I cannot see that requirement in the new clause. I should be grateful if the Minister could indicate where that provision is located. The same press release also stated that there would be, changes to marriage laws to empower registrars to refuse to conduct a marriage suspected to be carried out for the purposes of illegal immigration". That, again, does not appear to be included in the new clause.

I note that in the letter which winged its way to the noble Lord, Lord Goodhart, of which I received a copy at lunchtime today, the Government confess that they have not carried out consultation on the matter. They say that they will consult on making further changes to the marriage laws to reinforce the proposals in the amendment that is before us. When will the consultation be carried out? When are we likely to see changes to the marriage laws? Earlier, the Minister said that the Home Office bus of legislation tends to come along fairly regularly, but all the buses are getting to the end of their stops at the moment, if there is such a thing, and parliamentary time is running out. It does not look as if we shall see such measures in the near future unless the Government want to undertake yet another recommitment. We shall have to see.

This is a step forward, but not a big one. I turn to my amendments. Amendment No. 26 would require the registrar to keep a record of applications that were refused together with the reasons why they were refused. Is that the practice today? I appreciate that registrars keep a record of refusals, but do they keep a record of why they refused to enter marriages in the marriage book?

Amendment No. 27 would require the Secretary of State to produce an annual report on the operation of the section. We shall all need to know whether the proposals are adequate to address the problem, and we shall need to know more fully what the problem is comprised of so that we can design the proper system to attack the abuse.

Although I certainly support what the Government are doing so far with the reservation that I am worried they are creating an extra tier of bureaucracy which may not deliver, I certainly consider that this is not a question of ticking a box where the Government can say, "Right, we have done that; let's move on". This is a first step on the very long way that lies ahead.

Earl Russell

First, together with my noble friend Lord Dholakia, who, regrettably, is unable to be present, I should like to thank the noble Lord, Lord Ahmed, for his letter which drew attention to the fact that this measure was on the day's agenda. That is one of the important reasons I am here. I am very grateful to him.

The first thing that occurs to me to ask is whether any estimate has been made of the effect of this measure on public service manpower, and, therefore, of the cost of it. It strikes me that it may be very demanding.

The second thing that strikes me is that I really do envy the confidence of these bureaucrats who have it given to them to know in their hearts which marriages are genuine and which are not. I do not know whether the Minister ever saw "Four Weddings and a Funeral". I ask him to think of the last wedding in that film involving, I believe, Hugh Grant and Kristin Scott Thomas. Was that a genuine wedding or was it a sham? It ended with Hugh Grant slapped unconscious on the floor of the church. However, I believe that when he went into it, he believed it to be a genuine marriage. I should not like the responsibility of classifying that. I remember Lord Whitelaw once saying in this House that he was unwilling to hand out to others responsibilities which he was unwilling to undertake himself.

I also remember the film "Green Card", which began with a Home Office textbook sham marriage, designed to defraud the regulations and for no other purpose. However, the couple discovered that nothing propinqs like propinquity, and stayed together. When finally they were refused, their early deception being discovered, they were observed by the officers going off duty passionately embracing each other and vowing to meet and marry in France, and the officers shook their heads sadly and said: "Seems as if we got that one wrong". Well, did they or not? I wish I knew. This is something for a searcher of all hearts, and the state does not, thank God, have that authority.

We move from fiction to fact. My noble friend Lord Avebury and I shared the same great-uncle—Henry—who was married three times to the same woman, and at the end of the day was never married at all. This case was raised when back in 1996 the noble Baroness, Lady Sharples, asked whether there were any measures to deal with marriages that may be bogus. I apologise for not quoting her, but I do not think she will take any offence. My great-uncle Henry met a lady on holiday. They married in a register office in Geneva, then came back and had a slap-up wedding at St George's, Hanover Square. Twenty years later, she said that she had been very happy all these years, but she would like to be married by the rites of "Holy Mother Church" before she died, so they had a Catholic wedding. When she died, it was discovered that the first two times she had a husband living, and the third time there was no registrar present. So was she married, or was she not? In law, obviously not, as a family with an eye on the jewellery decided very quickly. My great-uncle Henry, incidentally, has the distinction of being the first Muslim Peer to sit in this Chamber.

This issue is rather difficult, and always has been, because the spiritual and secular requirements have always been different. The secular requirements are concerned with the lawful descent of the property, and the spiritual with the legitimacy of the offspring. There is a remarkable pastoral letter of 1219, written by the Bishop of Salisbury, warning young men who pluck themselves rings out of rushes and give them to their girlfriends and plight their troth that they may find they have taken on more than they have bargained for.

So what is a genuine marriage? There is room for a great deal of litigation on that question, as well as on the requirement of a specified registration district. Many people wish to marry in districts other than those where either of them live.

Lord Rooker

I am sorry to interrupt, but I made it clear that they are not required to marry at the specified district office. They are only required to give notice of the marriage there. They are then free to marry where they wish.

Earl Russell

I was just coming to the point I intended to make, which is that there may be a great deal of dispute about the area that should be set aside. That is a very fertile subject for litigation, and the Minister's intervention has strengthened, rather than weakened, that point. If I were a historian of this period, I would be delighted to have a measure of that sort on the statute book, but not, I think, under any other circumstances.

Regarding the entry clearance expressly for the purpose of marriage, a lot of people come to each other's countries in order to find out whether they are likely to be appropriately suited to be married or not. I have known two couples who did that, one of whom concluded they were not, and the other, as it were, tumbled into bed and have never been out of it since. These cases are unwisely excluded, and yet a definition that includes them is going to have a great deal of difficulty about it.

6.45 p.m.

The fees also worry me, because the group of people they affect is not our most prosperous. There will be those with a genuine wish to marry who cannot raise the fees, and the question my noble friend asked just now about a loan facility is going to be relevant to the marriage fee. That will introduce an element of what the noble Baroness, Lady Thatcher, used to refer to as "churning"—sending public money round and round in a circle until it comes back to where it started, and a little bit sticks to each finger on the way. It is an expensive habit.

Subsection (3)(c) concerns a marriage that, falls within a class specified for the purpose of this paragraph by regulations made by the Secretary of State". Fortunately I am not the noble Lord, Lord Tebbit, but one could easily imagine what he might have made of that. This subsection could, for example, legitimise the marriage of first cousins, which is contrary to law in most normal situations. In fact, it could do absolutely anything, and is a bar that is rather wider than that which I am happy to see on the statue book. The Government are buying themselves a large packet of litigation. Historians will bless them, but I do not think anyone else will.

Baroness Carnegy of Lour

The noble Earl made a very long speech. Marriages certainly seem not always to be what they were intended to be, and, after listening to noble Lords, I am glad that I never embarked on such a project myself.

To get back to the Bill, my noble friend mentioned Mr Mark Rimmer's research. He is the superintendent registrar of Brent who has being doing national research, which I read about in the Daily Telegraph of 11 June. He made it plain that he thought there were 8,000 such bogus marriages for the purposes of immigration in a year. That is an enormous number—as my noble friend said, perhaps one in five marriages in London. He pointed out that when registrars meet people getting married and the lady is asked what the gentleman is called, some women have to look at the man's passport to see what his name is. The registrar said that when people are asked to kiss, they flinch. Registrars are finding all sorts of amazing evidence of the rackets that are being run, and the Government are quite right: they have got to do something about it. We are trying to ensure that what is arranged is fair, and that it operates satisfactorily. I personally have a lot of sympathy here—if it is really true that racketeers are asking couples to pay £5,000 in order to marry for immigration purposes, this simply cannot go on. I am in favour of this government amendment, and I shall look forward to hearing what the Minister says in response to my noble friend's amendment.

Lord Ahmed

First, I thank the noble Earl, Lord Russell, for supporting the position that I share with the noble Lord, Lord Dholakia, on this amendment. I feel it is important in the midst of this debate to acknowledge that the Home Secretary and the Prime Minister have on previous occasions expressed their appreciation of the contribution of immigrant communities to British society. They have also highlighted the role that new immigrants will play in bringing their vital skills and expertise to the British economy. I value such recognition of the role immigrant communities play, and will continue to play, in our society.

As, I am sure, my noble friend the Minister will appreciate, however, the amendment proposed by the Government at this late stage regarding new marriage procedures for those subject to immigration control is bound to arouse concern among black and ethnic minority citizens and residents of Britain. I want to raise the potential concerns, and I look to my noble friend kindly to assist with clarification of the Home Office's intentions.

I know that my noble friend and the Committee will be aware that, in our globalised age, an increasing number of people have an international network of family and friends. That has always been the case for the black and ethnic minority communities, and it is, therefore, particularly likely that they will seek marriage partners through such networks. In that connection, I am grateful to the Joint Council for the Welfare of Immigrants for reminding me that it often used to advise distressed immigrants or members of the Asian community whose foreign-born spouses and fiancés were prevented from entering the UK to remain here because, in the eyes of the Immigration Service, the foreign nationals had failed to prove that their primary purpose in coming here was the pursuit of a genuine married relationship, rather than just immigration.

Many of those refusals of leave to enter or to remain with the British-resident partner had to be taken to appeal, causing great distress to all the parties concerned, as well as being an administrative nightmare for entry clearance officers and the Immigration Service. After all, how exactly should one determine whether a relationship is genuine, especially when what constitutes a genuine relationship may itself be a cultural variable? I would be interested to hear my noble friend's views on that. The adverse nature of some of the immigration decisions inevitably meant that the Asian community felt that it was being discriminated against. So high did feelings run that the Government abolished the primary purpose rule in 1997. We are grateful for that.

I am concerned that the new proposal for designated centres should not give rise to the same problem all over again, as the noble Lord, Lord Avebury, said. However, in some respects, the amendment goes further than the former primary purpose rule. It appears that, under subsection (3), a foreign national subject to immigration control who wishes to marry a British citizen or resident must obtain the written permission of the Home Secretary to marry in the UK. I would like to know from my noble friend why the Home Secretary judges it necessary for a foreign national to have to obtain his specific permission to marry. It is a novel concept in British marriage law.

I can understand that foreign spouses who wish to remain in the UK have historically needed the leave of the Secretary of State, but is he not venturing one step too far in prescribing exactly who can get married? The right to marry and found a family is enshrined in the European Convention on Human Rights. As has been said before, such broad discretion in the hands of the state will, I strongly suspect, breach that right.

Existing legislation caters for the prevention of sham marriages, if a marriage registrar has grounds for suspecting such. In that case, the suspicion can be reported to the Secretary of State, and leave to remain can be refused. Can my noble friend tell me how many such reports have been made and how many refusals of leave there have been in the past 12 months?

The amendment is unclear about who permission will be granted to, and I would be grateful for clarification on that point from my noble friend. I know that that matter will be the subject of regulations under the affirmative resolution procedure. Such an important stipulation should be made clear at the outset.

I would also like to be assured that members of the black and ethnic minority communities will not be discriminated against by incurring extra cost through the process. The foreign nationals in question will already have had to pay a marriage licence fee. Will they then be required to pay an application fee for the written permission of the Secretary of State to marry? Furthermore, can my noble friend assure me that such additional administrative process will cause neither distressful delay to the parties in marrying nor extra expense to the British taxpayer?

My noble friend may feel that that is more than enough questions to be getting on with, but, before I finish, I beg his indulgence and ask another: what training and qualifications will be required of the special marriage registrars? That will be important, given that the entry clearance monitor has been less than complimentary about the performance of entry clearance officers in assessing candidates for entry clearance in a sensitive manner. Of even greater concern is the duty on registrars throughout the UK not to accept notices of marriage from those subject to immigration control but to refer them to the special registrars. I suspect that, even if both parties to an intended marriage are British or EEA nationals and are settled in the UK, their immigration status will be questioned, if they are perceived to be ethnically different. It is precisely that singular discriminatory treatment to which ethnic minority communities will be subject that I find particularly objectionable.

I am conscious that, in raising my concerns and asking for assurances and clarifications, I may give the impression that I am opposed to the Government's intention of stamping out sham marriages. Such an impression would be mistaken. I understand that the Home Office must respond to a situation in which some individuals may abuse the formalities of marriage to gain entry to the UK. However, I hope that my noble friend will appreciate my concern that the amendment risks repeating the mistakes of the primary purpose rule, with even worse repercussions for black and ethnic minority individuals and communities. If the concerns that I raise are not addressed, the amendment will act to the detriment of the Government's agenda of community cohesion and a dynamic and inclusive modern strategy for Britain.

Lord Rooker

I hope that my noble friend will forgive me, but I am not sure whether he was present when I moved the amendment. Most of what he has said leads me to believe that he was not. I shall not repeat it, so I invite him to read Hansard.

Lord Ahmed

May I—

Lord Rooker

I shall give way to my noble friend in a moment, but I must say that some of the things that he has just said are inaccurate and inflammatory and are almost designed to stir up a problem that does not exist.

There is nothing about relationships in the amendment. That is not the issue. It does not even arise. As for British nationals, it does not matter what their ethnicity, religion or colour is, they will not be affected. That is not the issue before us today. I am certain that most of the questions that my noble friend asked can be answered to his satisfaction, but I would have hoped that the way that the amendment is written and the way that I spoke to it would have led him to believe that most of those issues were not even on the agenda.

Earl Russell

I must—

Lord Rooker

I shall give way in a moment. The issue of the primary purpose rule was raised. There is not a scintilla of a hope or an attempt to reintroduce the primary purpose rule. I would not be party to it. I would not be standing here promoting the clause, if that were the case. I assure my noble friend of that.

I have another issue to address before I give way to the noble Earl. I do not want to wind him up, but I thought that he made rather a joke of this serious issue. As an academic, he crafted his speech carefully, but there was a scintilla of a joke about it. To the noble Lord, Lord Avebury, I say that religious ceremonies are not affected. If the people are eligible for the ceremony of the relevant religion, they will not be affected by the amendment. The right of a person to have a religious marriage is not affected, if they are eligible for the religion, if I can put it that way. I hope that that is clear. There is also, by the way, no evidence of sham marriages in the Church of England. It is already a requirement of the Marriage Act that notice must be given in person by both parties. We are dealing with register offices here.

The noble Lord, Lord Avebury, raised some legitimate questions about religion that I would raise myself. There is no way that we would put something on the statute book that would, if you like, force a child to be born deliberately out of wedlock. It beggars belief that that would be the case, and it is not our intention. The regulations will be drafted to accommodate such circumstances.

In many ways we are dealing with a highly targeted commercial operation. I have not read the report of the Registrar General that has been reported in the press, so I do not know the detail. We are not dealing with whether people love each other, whether they are going to get on with each other or whether the marriage is genuine. That is not our purpose; it is not the function of Government to be involved with that. We are dealing with a narrow aspect of the matter.

7 p.m.

Earl Russell

First, the noble Lord, Lord Ahmed, was present. Secondly, his point was that because some creeds believe that it is a sin to have a relationship without marriage and some do not, the effect is discriminatory even if the intention is not. Thirdly, I had not realised that the Minister intended to go down the route of separating legal from ecclesiastical marriage. That has been done before and it is a dangerous route that leads to total confusion.

Lord Rooker

All I can say is that it will not confuse if people take the clause as it stands and not for what they think it might be. The point is that it deserves explanation. I fully accept that this is a change in policy at the end of the Bill. That is the reason why we are having today effectively a late Second Reading debate, as the noble Baroness said to start with. I fully accept that we shall have to return with further and better particulars at other stages. Part of my error was not delineating between civil and religious marriages when I introduced the clause. Had I done so it would have answered the noble Lord, Lord Avebury, before he rose.

I turn to the amendments listed on the Order Paper. Amendment No. 25 would allow those people with leave to remain one year or more and those who have been legally resident in the UK to be exempt from the requirement to present a suitable entry clearance or a certificate of approval when giving notice. Registrars are as keen as the rest of us to stop marriage abuse, but they are not experts in immigration law and we would not expect them to become so.

The purpose of the notification procedure is to give the registrar an opportunity to see if there are legal impediments to the marriage. We are placing an additional burden on them so they can refuse to accept notification where a person is not lawfully resident here. That has nothing to do with whether the relationship is genuine; it is not their function to check that—far from it. Our aim is to make the process as simple as possible.

As the proposal stands, non-European Economic Area nationals will be required to produce proof of their status in two forms: an entry clearance stamp or a certificate of approval. By including persons who have been lawfully resident in the UK for over six months and persons—

Lord Ahmed

How do the Government then propose for the registrars to identify who is a non-resident of the EEA area when a black or ethnic minority person marrying a white indigenous person goes to the registrar? Would he have to prove his status in the UK and if he does not have a passport what sort of evidence will he have to produce? Is that not primary purpose all over again?

Lord Rooker

Far from it. They are simply required to state their nationality in any event. That is the normal question. There is nothing different. Everyone is treated the same. If they give as their nationality one of the countries that is not a member of the European Economic Area, that triggers the rest of the factors. It has nothing to do with the person's colour, or their age for that matter, so long as they are above the lawful age. Perhaps people are required to give their age; I do not know.

The fact is that they are required to give their nationality; not their religion, ethnicity or anything to do with their colour. The nationality is the trigger. Everyone would be asked the same. There is nothing discriminatory about it. The list of countries is clear and it is well known which are in the European Economic Area. I do not propose to read them out unless any noble Lord demands it. There are countries not on that list which have an arrangement with the area still to be treated the same.

It is clear that one is either a national of the European Economic Area or not. If one is not, there is a new process to go through. That is all. It has nothing to do with picking on people who are from the black and ethnic minorities. As the proposals stand, non-EEA nationals will be required to produce proof of their status in two forms: an entry clearance stamp or a certificate of approval.

By including persons who have been lawfully resident in the UK for over six months and persons who have over one year's leave to remain, registrars would be required to recognise the whole range of entry clearance and leave to remain stamps and visas. That is in response to the amendments; obviously they would be asked to do a much bigger job.

Both the entry clearance and the certificate of approval will be in the form of secure documents, which are less likely to be forged. Both documents will be issued only by entry clearance officers or by Immigration and Nationality Directorate staff, again by those already in possession of the necessary expertise in immigration law. We do not want the registrars to become immigration officers.

The categories of person identified by noble Lords are already catered for in the provisions. Those who have valid leave to remain of over six months will be able to obtain a certificate of approval from the Home Office. Switching that power to registrars will open that to further abuse, so we do not believe that it would be prudent to amend the clause as suggested. For those reasons I hope that the amendment will not be pressed.

Amendments Nos. 26 and 27 would require superintendent registrars in England and Wales to maintain a record of refusals of notices by non-EEA nationals and to make that record available to other superintendent registrars of designated centres.

Registrars would not accept notification of a marriage if they could not enter it into the marriage notice book. They would not be able to accept a notification unless the person met all of the criteria: age, residence and marital status. Keeping a record of everyone who approaches a registrar but does not meet the criteria would prove a time-consuming task and would not help in combating sham marriages. As such I would urge for the amendment not to be pressed.

The suggestion is noted about submitting an annual report to Parliament on the operations of the new provisions. I agree that in common with other controls and systems operated by the Immigration and Nationality Directorate in a wide range of contexts it is important to keep Parliament informed about the way in which the powers are used.

My brief states, I am not convinced at this stage that such a provision for an Annual Report solely on these new measures dealing with marriage needs to be written in the Bill in this way". I have read that out, but Parliament has to be informed about the operation of legislation that it has been asked to approve, particularly, in this case, at the last minute. We will review with ministerial colleagues what might be the most appropriate form as a reporting mechanism. In other words, there will be a reporting mechanism in the area, but I cannot say that it will be an Annual Report to Parliament and therefore I ask not to write that in the Bill.

The noble Lord, Lord Avebury, asked whether the proposals may breach Articles 12 and 14 of the European Convention on Human Rights. The right to marry under Article 12 can be subject to the requirements of immigration control, just as the ability to treat people differently will not breach Article 14 if it is objectively justified by the circumstances.

The Secretary of State will ensure that any decision taken under the proposed amendments will not on the individual facts breach either Article 12 or Article 14 of the ECHR. I hope that I have put the primary purpose rule to bed, but I shall do the note because it is worth repeating. I do not want this hare to get out running. This is not the primary purpose rule. We are not touching it and there is no intention of reintroducing it by the back door.

We will not be considering in the lawful eligibility whether immigration is the primary purpose of the marriage. We will be applying criteria to each application whereby we will consider if the person is lawfully resident, whether they have been granted leave over six months or they are a visitor and, if so, whether it is reasonable or unreasonable to expect them to leave; for example, in the case of a pregnant woman. It is not our intention to do that.

As I stated, we would not normally grant Home Office approval where it is unreasonable to expect a person to return to their home country to reapply for entry clearance. That sometimes relates to asylum seekers or pregnant women. We are not seeking to stop people from getting married; far from it. We are seeking to stop some people from getting married twice a week, every week, or every year. That is the reality, and I point out to my noble friend Lord Ahmed that that is what the sham marriage commercial operation is about.

I hope that I have satisfied most of the questions at this early stage so as to knock on the head some of the hares that may start running. On Report we will obviously be able to clarify matters further, but I suspect that we will not have all the answers.

Our approach is highly targeted, very limited and non-discriminatory. I have dealt with all the points raised by my noble friend and others on the issue, and we will get a note to everyone before Report. It is important to get things into writing so that they are on record.

Lord Hylton

The noble Lord, Lord Ahmed, raised an important and valid point about proposed new subsection (3)(b) in the amendment. Are we to understand that, written permission of the Secretary of State to marry", simply means acknowledgement that at least one of the parties is entitled to remain in the country for more than six months?

Lord Rooker

The answer is yes. We must remember the way in which the parliamentary draftsmen have to write the rules. It looks onerous and almost oppressive to say that people need the written permission of the Secretary of State. However, that is subject to the caveats in proposed new subsection (3) as a whole, which states: The superintendent registrar shall not enter in the marriage notice book notice of a marriage". If the person fulfils some of the rights and has an entry clearance certificate, that is sufficient for the purposes of marriage. That is what I said. However, in other cases, people do not have the entry clearance but can satisfy the other conditions. All that they have to do is satisfy the Home Office and get the necessary documentation, which is a secure document from the Immigration and Nationality Directorate. That means that the registrars will be able to have confidence in the matter.

The Countess of Mar

I apologise to the Minister for not being in the Chamber to hear his opening speech on the amendment—I was in Grand Committee—but I want to get something absolutely clear. He said that we were not talking about the primary purpose rule, but is not the primary purpose of a sham marriage of a foreign national to a British passport holder for that foreign national to remain in the United Kingdom? Is that not what we are looking at and why people undertake such marriages? They want to say that they are married to a British national and will live with that person for 12 months, and then have the right to stay in the United Kingdom.

Lord Rooker

The noble Countess was obviously elsewhere on parliamentary business, but I hope that I clarified the matter in my opening speech. There is no connection whatever between what we propose and the former primary purpose rule, which was abolished in 1997. The sham marriages about which we are talking are of a different order to anything contemplated by the introduction of that rule. That is probably not a very satisfactory reply to her now, but I shall clarify everyone's points in writing in the fortnight that we have before Report.

Lord Avebury

The Minister has done his best to answer the many questions directed to him. He understands that the noble Lord, Lord Ahmed, reflected the genuine concerns of people outside this House in ethnic minority communities, who believe that their customs and practices will be adversely affected by the proposal. I hope that the Minister will not think that, by giving an answer in the debate, he has discharged the responsibility for explaining such matters to the wider community outside. I hope also that the Home Office will make every effort to reassure those communities and disabuse them of some of the misconceptions that it has been said have arisen.

A vital point dealt with at the end of the debate was that, if someone were here for more than six months, the certificate issued by the Home Office would be more or less automatic. Therefore, any person who falls into one of the categories granted leave to remain here for more than six months—for example, a refugee, someone with exceptional leave to remain or whatever the description that has replaced that is, or those on Commonwealth working holidays—will automatically be given the certificate of approval by the Home Secretary. That is quite a considerable advance on what I understood the proposed new clause to mean.

7.15 p.m.

The Minister also said that religious ceremonies were not affected, and that no discrimination was either intended or indirectly brought about between those who got married in the Church of England and those who sought to marry in any other religious ceremony. I certainly do not read the proposal that way. The four categories of person, which I enumerated in moving the amendment, began with those married in the Church of England, who have to give notification, call banns and so on, as the Minister explained. Thereby, they escape the process of scrutiny that would otherwise be undertaken by the registrar. However, someone who marries in a mosque or synagogue must bring the registrar in, so undergoes the examination that those married in the Church of England escape. I ask the Minister to reflect on what he said.

Lord Rooker

What I said was accurate. As I understand it—I have no personal experience of the matter—in the Church of England someone will not get married unless they are more or less known personally to the vicar. However, the requirement for banns will be abolished in 2007, so there will be a process where all marriages are treated the same.

Lord Avebury

I am grateful to the Minister for that clarification. Perhaps the matter is another that needs to be explained more than it has been until now, because people still believe that there is an element of religious discrimination in what the Government propose. Another matter that needs clarification was that addressed to the Minister by the noble Baroness, Lady Anelay, on what changes to the marriage law were contemplated that would allow registrars to decline to perform a ceremony. He did not reply to that, so far as I am aware. That is an important element in the jigsaw.

We need to reflect on what the Minister said and will consult those who have advised us outside, particularly those concerned about the discriminatory elements that they see in the new proposal. We may or may not come back to the matter on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment No. 25, as an amendment to Amendment No. 24, by leave, withdrawn.

[Amendments Nos. 26 and 27, as amendments to Amendment No. 24, not moved.]

On Question, Amendment No. 24 agreed to.

Lord Rooker moved Amendment No. 28:

After Clause 14, insert the following new clause—

"SECTION (PERSON SUBJECT TO IMMIGRATION CONTROL: PROCEDURE FOR MARRIAGE: ENGLAND AND WALES): SUPPLEMENTAL

(1) The Marriage Act 1949 (c. 76) shall have effect in relation to a marriage to which section (Person subject to immigration control: procedure for marriage: England and Wales) applies—

1. (a) subject to that section, and
2. (b) with any necessary consequential modification.

(2) In particular—

1. (a) section 28(1)(b) of that Act (declaration: residence) shall have effect as if it required a declaration that—
1. (i) the notice of marriage is given in compliance with section (Person subject to immigration control: procedure for marriage: England and Wales)(2) above, and
2. (ii) the party subject to immigration control satisfies section (Person subject to immigration control: procedure for marriage: England and Wales)(3)(a), (b) or (c), and
2. (b) section 48 of that Act (proof of certain matters not essential to validity of marriage) shall have effect as if the list of matters in section 48(1)(a) to (e) included compliance with section (Person subject to immigration control: procedure for marriage: England and Wales) above.

(3) Regulations of the Secretary of State under section (Person subject to immigration control: procedure for marriage: England and Wales)(2)(a) or (3)(c)—

1. (a) may make transitional provision,
2. (b) shall be made by statutory instrument, and
3. (c) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(4) Before making regulations under section (Person subject to immigration control: procedure for marriage: England and Wales)(2)(a) the Secretary of State shall consult the Registrar General.

(5) An expression used in section (Person subject to immigration control: procedure for marriage: England and Wales) or this section and in Part III of the Marriage Act 1949 (c. 76) has the same meaning in section (Person subject to immigration control: procedure for marriage: England and Wales) or this section as in that Part.

(6) An order under the Regulatory Reform Act 2001 (c. 6) may include provision—

1. (a) amending section (Person subject to immigration control: procedure for marriage: England and Wales), this section or section (Application for permission under section (Person subject to immigration control: procedure for marriage: England and Wales)(3)(b), (Person subject to immigration control: procedure for marriage: Scotland)(3)(b) or (Person subject to immigration control: procedure for marriage: Northern Ireland)(3)(b)) in consequence of other provision of the order, or
2. (b) repealing (Person subject to immigration control: procedure for marriage: England and Wales), this section and section (Application for permission under section (Person subject to immigration control: procedure for marriage: England and Wales) (3)(b), (Person subject to immigration control: procedure for marriage: Scotland)(3)(b) or (Person subject to immigration control: procedure for marriage: Northern Ireland)(3)(b)) and re-enacting them with modifications consequential upon other provision of the order."

The noble Lord said: The amendment basically covers the legislation elsewhere, so it is a repeat of the previous debate. The effect of the provisions for Scotland and Northern Ireland directly reflects those that we discussed for England and Wales. We have no desire to see the problem of sham marriages displaced to Scotland and Northern Ireland and believe that the provisions will protect against that taking place. The provisions for Scotland and Northern Ireland differ from the England and Wales provisions only in so far as they seek to facilitate both countries' marriage-tourism procedures.

As the Committee is aware, marriage tourists are couples who travel abroad to be married—specifically, to marry in particular surroundings. Marriage tourism provides significant income in Scotland and is a growing industry in Northern Ireland, so every effort has to be made in the provisions to accommodate that trade. I see from the faces of Members of the Committee that they did not expect me to say all that. People might want to get married in the middle of a loch or in a castle, and it is their right to do so. They come here as marriage tourists for that purpose. It is an income earner, and we do not wish to knock it on the head.

The effect on marriage tourism will be that non-EEA foreign nationals will be required to gain entry clearance for the purpose of marriage before entering the UK. We do not believe that to be a great burden to put on parties embarking on a genuine marriage, in view of the amount of consideration already required in organising a wedding, and we do not think that it will deter genuine couples.

The supplementary provisions in the amendments for each area of the UK confer on the Home Secretary the power to specify register offices for the purpose of proposed new subsection (2)(a). That power can be taken only in consultation with the UK's Registrar General. A joint working group between the registrars and Immigration and Nationality Directorate officials has already been set up to discuss those designations.

We have also proposed an amendment that deals with the cost of the certification process set out in subsection (3)(b) of the first amendment. We believe that it is reasonable for the cost of the process to be recovered by the Immigration Service. While we certainly wish to ensure that any additional burden of any of these provisions on genuine couples is kept to a minimum, we believe that in the context of a genuine marriage the payment of the fee is not unreasonable. The fee will be set at a later date, but is likely to be comparable to the fee payable for leave to remain applications, which is currently £155 by post or £250 in person. I beg to move.

Lord Avebury

I have a couple of questions. First, the noble Lord says that he wishes to encourage marriage tourism and I can see that in Scotland or Northern Ireland people might wish to be married in the circumstances that he has described. What are the rules that apply when both parties to the marriage are non-EEA nationals? Will they have to pay the £150 fee? Would that not deter someone who was seeking to be married in a castle or at a loch?

My second question relates to a provision in the Marriage Act 1949, where one party to a marriage is resident in Scotland and the other party is resident in England. What will the rules be if a non-EEA national is resident in England and the native is resident in Scotland? What will happen if it is the other way round? Will these provisions have any relevance to the duties that they have to perform in order to be married in one or other of the jurisdictions?

Lord Rooker

On the latter point, as far as I am aware, once the marriage has been notified and the couple have certified the requirements, they are free to be married wherever they wish. There is no restriction; it is a matter of their choice of where the marriage should take place—England, Scotland or wherever, even a traffic island or down a coal mine. Once the notification has been approved they are free to be married wherever they wish, so I cannot see a distinction between being north or south of the Border.

Regarding the noble Lord's first question, I shall give the example of a couple of Americans who are non-EEA nationals who wish to be married in a castle in Scotland. To be honest, the cost of that enterprise somewhat puts into the shade the fee of around £200 for the extra certificate. I do not see that the cost of the fee would put them off.

Lord Avebury

Is the fee of £200 per person or per couple?

Lord Rooker

I honestly do not know, but I do not believe that that matters to someone in those circumstances. I am happy to clarify the matter, but the cost of the breakfast in the castle will be more than that.

On Question, amendment agreed to.

Lord Rooker moved Amendment No. 29:

After Clause 14, insert the following new clause—

"PERSON SUBJECT TO IMMIGRATION CONTROL: PROCEDURE FOR MARRIAGE: SCOTLAND

(1) This section applies to a marriage—

1. (a) which is intended to be solemnised in Scotland, and
2. (b) a party to which is subject to immigration control.

(2) In relation to a marriage to which this section applies, notice under section 3 of the Marriage (Scotland) Act 1977 (c. 15)—

1. (a) may be submitted to the district registrar of a registration district prescribed for the purposes of this section, and
2. (b) may not be submitted to the district registrar of any other registration district.

(3) Where the district registrar to whom notice is submitted by virtue of subsection (2) is the district registrar for the registration district in which the marriage is to be solemnised, he shall not make an entry under section 4, or complete a Marriage Schedule under section 6, of the Marriage (Scotland) Act 1977 in respect of the marriage unless satisfied, by the provision of specified evidence, that the party subject to immigration control—

1. (a) has an entry clearance granted expressly for the purpose of enabling him to marry in the United Kingdom,
705
2. (b) has the written permission of the Secretary of State to marry in the United Kingdom, or
3. (c) falls within a class specified for the purpose of this paragraph by regulations made by the Secretary of State.

(4) Where the district registrar to whom notice is submitted by virtue of subsection (2) (here the "notified registrar") is not the district registrar for the registration district in which the marriage is to be solemnised (here the "second registrar")—

1. (a) the notified registrar shall, if satisfied as is mentioned in subsection (3), send the notices and any fee, certificate or declaration which accompanied them, to the second registrar, and
2. (b) the second registrar shall be treated as having received the notices from the parties to the marriage on the dates on which the notified registrar received them.

(5) Subsection (4) of section (Person subject to immigration control: procedure for marriage: England and Wales) applies for the purposes of this section as it applies for the purposes of that section except that for the purposes of this section the reference in paragraph (d) of that subsection to guidance issued by the Registrar General shall be construed as a reference to guidance issued by the Secretary of State after consultation with the Registrar General for Scotland."

The noble Lord said: I beg to move.

[Amendments Nos. 30 and 31, as amendments to Amendment No. 29, not moved.]

On Question. Amendment No. 29 agreed to.

Lord Rooker moved Amendments Nos. 32 to 35:

After Clause 14, insert the following new clause—

"SECTION (PERSON SUBJECT TO IMMIGRATION CONTROL: PROCEDURE FOR MARRIAGE: SCOTLAND): SUPPLEMENTAL

(1) The Marriage (Scotland) Act 1977 shall have effect in relation to a marriage to which section (Person subject to immigration control: procedure for marriage: Scotland) applies—

1. (a) subject to that section, and
2. (b) with any necessary consequential modification.

(2) In subsection (2)(a) of that section "prescribed" means prescribed by regulations made by the Secretary of State after consultation with the Registrar General for Scotland; and other expressions used in subsections (1) to (4) of that section and in the Marriage (Scotland) Act 1977 have the same meaning in those subsections as in that Act.

(3) Regulations made by of the Secretary of State under subsection (2)(a) or (3)(c) of that section—

1. (a) may make transitional provision,
2. (b) shall be made by statutory instrument, and
3. (c) shall be subject to annulment in pursuance of a resolution of either House of Parliament."

After Clause 14, insert the following new clause—

"PERSON SUBJECT TO IMMIGRATION CONTROL: PROCEDURE FOR MARRIAGE: NORTHERN IRELAND

(1) This section applies to a marriage—

1. (a) which is intended to be solemnised in Northern Ireland, and
2. (b) a party to which is subject to immigration control.

(2) In relation to a marriage to which this section applies, the marriage notices—

1. (a) may be given only to a prescribed registrar, and
2. (b) shall, in prescribed cases, be given in person at a prescribed register office.

(3) The prescribed registrar shall not act under Article 4 or 7 of the Marriage (Northern Ireland) Order 2003 (S.I. 2003/413 (N.I.3)) (marriage notice book, list of intended marriages and marriage schedule) unless he is satisfied, by the provision of specified evidence, that the party subject to immigration control—

1. (a) has an entry clearance granted expressly for the purpose of enabling him to marry in the United Kingdom,
2. (b) has the written permission of the Secretary of State to marry in the United Kingdom, or
3. (c) falls within a class specified for the purpose of this paragraph by regulations made by the Secretary of State.

(4) Subject to subsection (5), if the prescribed registrar is not the registrar for the purposes of Article 4 of that Order, the prescribed registrar shall send him the marriage notices and he shall be treated as having received them from the parties to the marriage on the dates on which the prescribed registrar received them.

(5) The prescribed registrar shall not act under subsection (4) unless he is satisfied as mentioned in subsection (3).

(6) For the purposes of this section—

1. (a) a person is subject to immigration control if—
1. (i) he is not an EEA national, and
2. (ii) under the Immigration Act 1971 (c. 77) he requires leave to enter or remain in the United Kingdom (whether or not leave has been given),
2. (b) "EEA national" means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time),
3. (c) "entry clearance" has the meaning given by section 33(1) of the Immigration Act 1971 (c. 77), and
4. (d) "specified evidence" means such evidence as may be specified in guidance issued by the Secretary of State after consulting the Registrar General for Northern Ireland."

After Clause 14, insert the following new clause—

"SECTION (PERSON SUBJECT TO IMMIGRATION CONTROL: PROCEDURE FOR MARRIAGE: NORTHERN IRELAND): SUPPLEMENTAL

(1) The Marriage (Northern Ireland) Order 2003 (S.I.2003/413 (N.I.3)) shall have effect in relation to a marriage to which section (Person subject to immigration control: procedure for marriage: Northern Ireland) applies—

1. (a) subject to section (Person subject to immigration control: procedure for marriage: Northern Ireland), and
2. (b) with any necessary consequential modification.

(2) In section (Person subject to immigration control: procedure for marriage: Northern Ireland) "prescribed" means prescribed for the purposes of that section by regulations made by the Secretary of State after consulting the Registrar General for Northern Ireland and other expressions used in that section or this section and the Marriage (Northern Ireland) Order 2003 have the same meaning in section (Person subject to immigration control: procedure for marriage: Northern Ireland) or this section as in that Order.

(3) Section 18(3) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)) (provisions as to holders of offices) shall apply to section (Person subject to immigration control: procedure for marriage: Northern Ireland) as if that section were an enactment within the meaning of that Act.

(4) Regulations of the Secretary of State under section (Person subject to immigration control: procedure for marriage: Northern Ireland)—

1. (a) may make transitional provision,
2. (b) shall be made by statutory instrument, and
3. (c) shall be subject to annulment in pursuance of a resolution of either House of Parliament."

After Clause 14, insert the following new clause—

"APPLICATION FOR PERMISSION UNDER SECTION

(PERSON SUBJECT TO IMMIGRATION CONTROL:

PROCEDURE FOR MARRIAGE: ENGLAND AND

WALES)(3)(B), (PERSON SUBJECT TO IMMIGRATION

CONTROL: PROCEDURE FOR MARRIAGE:

SCOTLAND)(3)(B) OR (PERSON SUBJECT TO

IMMIGRATION CONTROL: PROCEDURE FOR

MARRIAGE: NORTHERN IRELAND)(3)(B)

(1) The Secretary of State may make regulations requiring a person seeking permission under section (Person subject to immigration control: procedure for marriage: England and Wales)(3)(b), (Person subject to immigration control: procedure for marriage: Scotland)(3)(b) or (Person subject to immigration control: procedure for marriage: Northern Ireland)(3)(b)—

1. (a) to make an application in writing, and
2. (b) to pay a fee.

(2) The regulations shall, in particular, specify—

1. (a) the information to be contained in or provided with the application,
2. (b) the amount of the fee, and
3. (c) how and to whom the fee is to be paid.

(3) The regulations may, in particular, make provision—

1. (a) excepting a specified class of persons from the requirement to pay a fee;
2. (b) permitting a specified class of persons to pay a reduced fee;
3. (c) for the refund of all or part of a fee in specified circumstances.

(4) Regulations under this section—

1. (a) shall be made by statutory instrument, and
2. (b) shall be subject to annulment in pursuance of a resolution of either House of Parliament."

On Question, amendments agreed to.

Lord Rooker moved Amendment No. 36:

After Clause 17, insert the following new clause—

"ENTRY CLEARANCE

(1) After section 88 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (appeal: ineligibility) insert—

"88A INELIGIBILITY: ENTRY CLEARANCE

(1) A person may not appeal under section 82(1) against refusal of entry clearance if the decision to refuse is taken on grounds which—

1. (a) relate to a provision of immigration rules, and
2. (b) are specified for the purpose of this section by order of the Secretary of State.

(2) Subsection (1)—

1. (a) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 84(1)(b) and (c), and
2. (b) is without prejudice to the effect of section 88 in relation to an appeal under section 82(1) against refusal of entry clearance."

(2) In section 112 of that Act (regulations, &c.) after subsection (3) insert—

"(3A) An order under section 88A—

1. (a) must be made by statutory instrument,
2. (b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament, and
3. (c) may include transitional provision.""

The noble Lord said: This amendment provides a power to remove the right of appeal against certain entry clearance decisions. The Secretary of State will be able to specify requirements under the Immigration Rules. Where an entry clearance application is refused because a specified requirement is not met, there will be no right of appeal. We intend to use this power only in respect of provisions in the Immigration Rules that are based on objective criteria. It makes little sense for an application to have an appeal in these circumstances. The decision that an applicant fails to meet such a requirement is a question of fact.

The amendment extends the scope of Section 88 of the Nationality, Immigration and Asylum Act 2002. Section 88 already prevents an appeal in cases where a requirement in respect of age, nationality, documentation or period for which leave is sought is not met, or where the purpose of entry or stay is not covered by the Immigration Rules. The amendment will not impact on existing rights of appeal in respect of race discrimination and human rights issues. Those residual appeal rights are preserved by the construction of Section 88; that construction is mirrored in Clause 88A(2)(a) of the amendment.

That provision will provide greater flexibility to tackle areas of abuse in entry clearance cases, by targeting specific provisions of the Immigration Rules. Where it is necessary to amend the Immigration Rules to create additional, objective criteria, this power could be used to preclude a right of appeal against refusals based on a failure to meet that new requirement. Thus a development of the Immigration Rules need not result in new meritless appeals. Such appeals impact adversely on the swift resolution of other, arguable appeals. We are not seeking to rule out arguable appeals.

We are, for example, looking at the possibility of creating a register of bone fide colleges. We would then make it a specified requirement for entry clearance as a student that the applicant be enrolled at a registered college. This would tackle an existing problem whereby students enrol at bogus colleges, or at colleges which do not maintain proper attendance checks. Enrolment at a non-registered college would be a matter of fact, leaving no issues to be argued at appeal.

I acknowledge that noble Lords may be concerned about the operation of this order-making power. I state again that it will apply only to provisions of the Immigration Rules that are based on objective criteria, that is to say provisions about which there can be little debate as to whether the necessary requirements have been met. The example that I have given is as clear cut as I am able to give. Furthermore, the amendment provides that the order-making power is subject to affirmative resolution procedures, so any use of the power will be subject to debate in this House, as it should be. I beg to move.

Baroness Anelay of St Johns moved, as an amendment to Amendment No. 36, Amendment No. 36A:

Line 10, at end insert—

"(1A) Immigration rules specified for the purpose of this section may include the requirement that a person who is normally domiciled outside the United Kingdom who travels to the United Kingdom to study shall provide evidence that he is registered at an education establishment that has been approved for the purpose by the Secretary of State."

The noble Baroness said: In his clear opening remarks the Minister made clear that my amendment provides half of what the Government are trying to do in this clause by attacking alleged bogus students. The reason for tabling this amendment is simple. When the Minister's colleague, the noble Baroness, Lady Scotland, wrote to noble Lords on 26 May to say that there would be some extra amendments, we were told that there would be some amendments on sham marriages and others on so far unannounced policies, so we could not be told what they were. The only other matter that I could imagine was the issue of alleged sham students, so I asked the Government whether there would be anything to do with alleged bogus students. The answer was "no".

The next day, another letter arrived saying, "Sorry, when we said no, we meant yes". It said that although the clause would not refer to education in particular, it would be aimed to tackle what is perceived to be the problem of bogus students coming here to obtain residence in this country. I was told in that letter, rather teasingly, that it might be clear to the trained eye that there would be something about students in one of these clauses and that the Minister's letter would make the matter clear. Well, the letter arrived last Tuesday and it did not make that clear—there was no reference to students. This was the only clause out of the 13 clauses that might have anything to do with bogus students and was thus the source of my amendments.

7.30 p.m.

Therefore, the questions are as follows. Can the Minister tell the Committee on what evidence the Government have based their determination to use new legislation—legislation which, in the form of this clause, goes very widely and will not allow the Committee to say, "Yes, we can see what the Government are really trying to do. We approve it". As the Minister said, any change in the entry clearance requirements will come forward in regulations in the future. Therefore, again, we are being asked to sign something of a blank cheque. If it were a cheque with which we knew we were targeting people who were coming to bogus colleges which were exploiting people, knowing that they could be brought in to obtain residence, I should be much happier. I understand, for example, that prospective students who intend to study in the United Kingdom and who are not yet enrolled on a course are already denied an appeal under Section 91(1)(b) of the Nationality, Immigration and Asylum Act 2002. Therefore, I am intrigued as to why the Government now need to take this course of action.

What work has the Home Office carried out with educational institutions on this subject? Has that work been completed? Is a report available for Members of this House to consider before the Bill leaves us?

I want to place on record my gratitude to Clive Saville of UKCOSA, the Council for International Education, and to Jo Clough of the Association of Colleges for their briefing on this issue over the past couple of weeks. I particularly appreciate their willingness to respond at such short notice when they are deep in briefing on the Higher Education Bill.

Is the Minister aware that overseas students contribute in the region of £3 billion to our economy and that it is vital that we do not discourage the genuine students who come from the genuine colleges? That would simply send them to our competitors in other countries.

Can the Minister confirm reports in the press, following the last round of government statements in April, that the Home Office intends to launch immediate checks on all claimed educational establishments and, by the end of the year, set up an accreditation and monitoring scheme for all colleges? In his opening remarks, he talked about what sounded like an approved list. That is not quite the same as having accreditation for all colleges.

Can the Minister give an assurance that, if the approved list is compiled, it will automatically include a listing for all publicly funded institutions? With regard to privately owned institutions, does he agree that the vast majority are well run and that they contribute much to the UK economy? They are part of our small-business culture, which is the lifeblood of our economy. Does the Minister accept that it is vital that students who enrol with such privately run institutions should be able to come to this country to study?

I hope the noble Lord agrees that those institutions are badly served by some of the very few—I hope that they are very few—suspect businesses, such as the one that had the misfortunate to e-mail me yesterday. I shall not give it publicity by revealing its telephone number, but it asked me: Do you want a prosperous future, increasing earning power, more money and the respect of all? Call this number … There are no required tests, classes, books, or interviews! Get a Bachelors, Masters, MBA, and Doctorate (PhD) diploma! … No one is turned down! … Confidentiality assured!". Well, it was not like that at Bristol 30 or so years ago. It is that kind of organisation that does such a bad service to the education sector in this country, which has the admiration of the world.

Can the Minister give an assurance that, in future, they or the IND will provide colleges with a list of students who have been issued visas on the basis of an offer letter from a college? We need to be sure that, in the new world under this legislation, genuinely operated and good colleges also receive co-operation and information from the Government. Does the Minister agree that that is vital as it would mean not only that the colleges would know who should be turning up but it would also help in identifying where fraud offer letters were being used to gain entry, as well as giving the colleges the opportunity to assist in giving information about no-show students? Is the Minister aware that this procedure was, in fact, piloted by City College Brighton and Hove, and the Beijing Visa Office and that it was very successful?

Finally, what discussions have the Government held on these amendments with the Association of Colleges, UKCOSA, ARELS and the English language schools, and what has been their response? I beg to move.

Lord Lewis of Newnham

I want to add to what the noble Baroness, Lady Anelay, has just said. There is no doubt in my mind that she has admirably summarised the situation so far as concerns universities. There is a hypersensitivity, if I may express it in that way, on this point. Perhaps we can put this in the context that many of the countries which are sending students over here are also sending them to other parts of the world. In particular, the present situation in America has caused a considerable amount of concern in many countries.

If it were suggested for one moment that we were following that line—I am delighted to hear what the Minister said, which seems to exclude that possibility—I believe that that could cause quite an emotional reaction from those countries. It would be a great help if the position could be clarified and stated in specific terms as that would then alleviate any problem such as this.

Lord Avebury

We understand fully the arguments for not providing a right of appeal in cases where a requirement in respect of age, nationality, documentation or the period for which leave is sought are not met or where the purpose of entry or stay is not covered by the Immigration Rules. But here we are being asked to give the Secretary of State the power to remove the right of appeal on grounds which "relate to" any other requirements in the Immigration Rules. We think that that is going too far.

The Minister said that an order will be made under Section 88A only if it is based on objective criteria or where the decision that an applicant fails to meet such a requirement is a question of fact. That is not what the proposed new clause states. ILPA suspects that the Government's real motive is to try to rescue some of the many appeals that they are now losing. In 2002, 43 per cent of appeals against refusal of entry clearance were allowed. That is a remarkably high figure when one considers that those appeals were conducted only on the basis of written submissions.

As an example of how the clause might be applied in practice, the Immigration Rules stipulate that an applicant must provide evidence that he or she will not rely on public funds and will have adequate accommodation. I believe that entry clearance officers are applying a higher standard of proof than the appellate authorities in this matter as many of their decisions, including those by spouses, visitors and students, are overturned on the grounds that they wrongly assessed the evidence submitted.

We should not like the Government to have the power to remove appeal rights where there is a dispute about the applicant's ability to support or accommodate herself, but that is only by way of illustration. Why cannot the description of cases that it applies to be on the face of the Bill, as is the case with Section 88 of the 2002 Act?

We are concerned that the Minister has been coy about the reasons for the clause and has revealed them only at the last minute in response to the amendment tabled by the noble Baroness, Lady Anelay. If it was in the Government's mind all along to make provision to register these places of education, why could they not have said so and why could we not have had a proper discussion based on the evidence? How is that registration to be earned or achieved, and is there any appeal against refusal?

We can envisage that there may well be a dispute about whether a particular educational establishment is bona fide or whether it exists for the purpose of allowing entry for some illicit reason. Obviously we are not talking about the universities here but some schools or colleges of English. We all know about the scams on the Internet, mentioned by the noble Baroness, Lady Anelay, which invite people to obtain degrees simply by making a payment. However, I do not think that their primary concern is to evade immigration controls but, rather, to extract money from gullible people who seem to fall for such scams.

The Government are removing appeal rights and, hence, denying justice, for reasons of administrative expediency. I remind Members of the Committee of the Prime Minister's comment on the proceedings in the 1993 Act when he said: It is a novel, bizarre and misguided principle of the legal system that if the exercise of legal rights is causing administrative inconvenience, the solution is to remove the right … a right of appeal … is a valuable and necessary constraint on those who exercise original jurisdiction".—[Official Report, Commons, 2/11/92; col. 43.] Agencies such as the CAB advise us that they are not aware of any evidence put forward by the Government to justify this proposal apart from what has now been presented to us in terms of the colleges. They too say that it is incumbent on the Government to say which of the objectively based requirements of the immigration rules they have in mind and to address such matters on the face of the Bill.

Baroness Carnegy of Lour

The Government really should consider the advice of the noble Lord, Lord Lewis, and put an amendment, whether my noble friend's or some such amendment, on the face of the Bill. The confidence of people across the world in our education system and colleges is very important. As an example, the University of St Andrews, which is a very small world-class university, at present has students from 96 different countries. I do not whether the Minister realises the extent of the importance of bringing people to this country from other countries.

This measure should be placed on the face of the Bill, particularly in view of the provisions to which the noble Lord, Lord Avebury, referred and the fact that the Secretary of State can specify by order reasons for refusing appeal. That is a very wide provision and may be necessary; I do not know. It would be prudent for the Government to do this.

The Countess of Mar

When I first started on the Immigration Appeal Tribunal we regularly had cases of students attending these so-called bogus colleges. More recently, I have seen fewer and fewer. I do not know whether that is because Her Majesty's immigration inspectors are being more efficient and stopping the colleges before they start, so to speak, or whether there are simply not enough inspectors and the colleges are continuing.

I appreciate what the Minister is doing with the amendment. However, I sometimes wonder at the rules. I think that rule 317 allows people to come in as dependants and for various other reasons. There are cases where the immigration officers get the facts wrong—we are considering facts in this case—and I do not know how we can get round that. Sometimes it is important that someone is allowed to enter this country and if the immigration officer is starting from the wrong premise, how do we put things right?

Earl Russell

Briefly. I share the concerns expressed by the noble Lord, Lord Lewis. I also share the concerns expressed by my noble friend Lord Avebury that nothing further restrictive should be smuggled through under this than is needed. I should like to draw attention to something which is different in this country from the rest of the world. This is the only country where the power to confer degrees is given or taken away by the state, which means that the state's conception of what constitutes a valid degree cannot diverge too widely from that of the academic community or else we would rapidly reach a situation where the rest of the world would not recognise our degrees.

I hope that if anything is done to define the standards of a degree it will be done in the closest and most amicable of consultation.

Lord Rooker

On the latter point raised by the noble Lord, Lord Lewis, the noble Countess, Lady Mar, and the noble Earl, Lord Russell, as a general assurance all the issues and suggestions raised here today on all of the clauses will be considered. However, as to the specific point regarding the need for the protection of the integrity of the higher education system, certainly I shall have that looked at by my colleagues in the Home Office. It is vital that we do not have an unintended consequence on an important matter simply because of a slip because we took it for granted that this would not occur. This is very important. It is not just that it is big business; it is more than that. There are 96 nationalities at one university and I should imagine that that is repeated elsewhere. That is an enormous contribution to humankind in many ways and is one that we want to continue and to flower. We do not want to damage that in any way. Therefore, if we have to put it on the face of the Bill to nail it down, we shall certainly give that urgent consideration between now and the next stage. I hope that that will satisfy noble Lords at this point.

This may sound like a cop out but at the end of the day in the background, even when the rights of appeal are removed, there is always the concept of judicial review. I know that that is expensive for people, but it would not be in the interests of the Government to create a situation where the lack of a right of appeal gave rise to an explosion in the numbers which could be judicially reviewed. So, we have to be extremely careful about how we redraft the immigration rules to ensure that it is as clear as possible that it is the facts with which we are dealing. Judicial review is far more expensive than the appeals process. This could be a huge waste of time and resources on both the Home Office and Government. We do not want to get into that area.

7.45 p.m.

The Countess of Mar

Is judicial review possible from an appellant outside this country?

Lord Rooker

I cannot say but I think so on the basis that judicial review is still there. Surely, if you remove more appeal rights there is a risk that applicants will resort to judicial review. Obviously, judicial review will be available to such applicants. So, the answer is yes, as my noble friend states. In other words, we do not make a rod to beat ourselves with by getting it wrong. We are not trying to slip something in which later will cause a major problem. It is not in our interests to do that.

This is not a question of administrative expediency. There will be affirmative resolution. The Bill is not the last time that noble Lords will have an opportunity to discuss this. There will be Report stage, Third Reading and then affirmative resolution. We are working on various areas of possible abuse. I fully accept that when we write up the rules, colleges that do not get on to the register must have some right of appeal. However, the proposal is at a very early stage and is yet to be worked up in consultation with the DfES. That is as far as I can go this evening. That is the evidence that I have.

I do not know the details of the pilot that was raised. Frankly, a two-way process between the Immigration and Nationality Directorate, the college and the students seems to be to everyone's advantage. I say no more than that because I do not know the details of the pilot carried out in the Brighton area. However, it seems that exchange of information in those circumstances would be to everyone's advantage. Certainly, we shall return to this, but that said, I hope that the amendments will not be pressed.

Baroness Anelay of St Johns

I am grateful to the Minister, particularly for saying that he will look again at this section and how it might have greater clarity. I am grateful to all noble Lords for their contributions and the support of the noble Lord, Lord Lewis of Newnham, the noble Countess, Lady Mar, and my noble friend Lady Carnegy.

The noble Lord, Lord Avebury, referred to the noble Lord, Lord Rooker, as being rather coy about this. I think that is a first. It is an interesting thought. We are all united on the idea that we should try to ensure that in cutting out the opportunity for people to come to bogus colleges or to be bogus students coming here that we must not in any way frame regulations that will deter the expansion of our valuable education institutions throughout the country.

One of the issues raised was the importance of an appeal against a refusal to go on an approved list. As the Government have announced tonight that that is the route they are choosing, there has to be very careful consultation with the various educational organisations and institutions about how that list should be composed and what recourse one has if one finds that one is not on it.

The noble Earl, Lord Russell, referred to the conferring of degrees. I am aware of the rules and regulations about that. Of course, many of the very good colleges up and down the country, which provide courses for overseas students, are not conferring degrees. Therefore, it is even more important that one looks very carefully at getting those on the list. This morning I was reminded of the importance of work that is done in training people in the law and accountancy, where they will not get degrees but a very valuable qualification.

So, in having this rather open-ended clause, at the moment the Government have not actually devised the weapon that we all agree is needed. It must be a weapon that is not going to blow up in our faces or that of the education world. The Minister has our good will in trying to frame something between now and on Report to probe these matters further. I undertake to go back to UKCOSA and the AOC to see what we might come up with to aid the debate at that stage. But, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Amendment No. 36 agreed to.

Lord Rooker moved Amendment No. 37:

After Clause 17, insert the following new clause—

"EARLIER RIGHT OF APPEAL

(1) Section 96 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (earlier right of appeal) shall be amended as follows.

(2) For subsections (1) to (3) substitute—

"(1) An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the Secretary of State or an immigration officer certifies—

1. (a) that the person was notified of a right of appeal under that section against another immigration decision ("the old decision") (whether or not an appeal was brought and whether or not any appeal brought has been determined),
716
2. (b) that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision, and
3. (c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in an appeal against the old decision.

(2) An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the Secretary of State or an immigration officer certifies—

1. (a) that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,
2. (b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and
3. (c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice."

(3) In subsection (5) for "Subsections (1) to (3) apply to prevent or restrict" substitute "Subsections (1) and (2) apply to prevent".

(4) At the end add—

"(7) A certificate under subsection (1) or (2) shall have no effect in relation to an appeal instituted before the certificate is issued.""

The noble Lord said: I have been waiting all day to say this because it is dead true. Amendment No. 37 is a technical amendment. It adds nothing to the law; it is not a change in the law at all. It adds nothing to one-stop powers, but it clarifies how further applications are dealt with once an earlier application has been determined.

Currently, the definition of what amounts to a fresh asylum claim is to be found in paragraph 346 of the Immigration Rules. Similar principles may apply to human rights cases by virtue of Court of Appeal case law. There is no guidance for other cases. Since only a fresh application can be decided and certified under the one-stop provisions, it is important that there is a consistent definition. We shall accordingly amend the Immigration Rules to define fresh claims in respect of all types of case.

With the passage of time we are now able to remove the provisions for certifying an appeal after it has been instituted. They were vital only to deal with certain appeals under the 1999 Act that arise in circumstances where no certificate could be issued earlier.

The new wording for Section 96 reduces the present four options for certifying to two: where there has been a chance to appeal, or where a one-stop warning has been issued. In both cases there must be no good reason why the applicant has delayed raising the new issue, and this is what the words say, rather than the earlier reference to, "no other legitimate purpose", and, "in order to delay removal".

The amendment and the change to the Immigration Rules that go with it will not revolutionise one-stop as we know it, but they will make the process easier for caseworkers to operate consistently and for lawyers to understand precisely what has been done. On that basis I beg to move the new clause.

Lord Avebury moved, as an amendment to Amendment No. 37, Amendment No. 37A:

Line 33, at end insert—

"(3) No such certificate as is mentioned in subsection (2) shall be issued by the Secretary of State or an immigration officer if the Medical Foundation for the Care of Victims of Torture has notified the Secretary of State that in their opinion careful consideration has not been given to medical evidence bearing out allegations of torture.""

The noble Lord said: This follows a case that I raised earlier in proceedings on Report on 7 June at col. 34. I referred to a case dealt with by the tribunal whereby the adjudicator had used his own experience to assess medical evidence submitted by the Medical Foundation for Care of Victims of Torture. Since I raised that case at the beginning of the month the case has been determined and the applicant has lost.

We believe that there should be a procedure for reference to be made to the Medical Foundation for matters to be resolved other than through the process of judicial review where clearly something has gone badly wrong, as it did in this case.

Some 10 years ago there were disputes about medical evidence submitted by the Medical Foundation. In two cases the Home Office brought in the very well known forensic pathologist Dr Ian West, who went through the evidence it submitted. By that process an agreement was reached. We believe that some sort of fall-back is necessary in cases where the adjudicator has wrongly taken it upon himself to make a determination of fact on medical evidence which has been submitted by the Medical Foundation, as it was in the particular case that I raised on 7 June.

So the amendment provides for subsequent procedure. We think that it would safeguard cases being wrongly determined by the application of an incorrect standard of proof. The standard in cases of torture is "a reasonable degree of likelihood", as the noble Lord will be aware, whereas in this particular case the adjudicator was asking for some higher standard of proof. The victim had scars that were consistent with a history of torture. The medical expert, who was called in by the Medical Foundation, in a six-page report described the scars as "typical". That is a much higher standard than is demanded. One should also bear in mind that it is an overall evaluation of all lesions and not the consistency of each lesion in a particular form of torture that is important in assessing the torture story.

So there are cases where, in spite of the fact that all the procedures have been correctly followed, medical evidence has not been properly taken into consideration, as the noble Lord, Lord Filkin, said it would be in cases of this kind. The amendment is a safeguard, which it is necessary to introduce. I hope that the noble Lord will agree to my amendment. I beg to move.

Baroness Park of Monmouth

I support very strongly the amendment of the noble Lord, Lord Avebury. I know that for some people from Zimbabwe there have been just these problems; that they have been ruled as not having been tortured when there is plenty of evidence to suggest that they have been. It would have been possible to establish that if professional advice had been taken.

Lord Rooker

At this point in Committee I have to resist the amendment, although I must say that I have a good deal of sympathy with it. I shall describe the situation we have at the present time, but the government amendment, the new clause, does not change the situation. Therefore, the amendment is actually not necessary.

Amendment No. 37A, as the noble Lord said, seeks to prevent the issue of a one-stop certificate if the Medical Foundation asserts that careful consideration has not been given to medical evidence.

If the Medical Foundation asserts that a person has been tortured this is always considered carefully, whether in relation to the initial claim or a fresh one following an initial decision. If, for example, a fresh application is to be refused despite the medical evidence and the Medical Foundation has asserted that the evidence was not provided earlier because the claimant was unable, say, for psychological reasons to put the torture issue forward, then that will constitute a satisfactory reason and a one-stop certificate would not be issued. We accept that in some cases, particularly those where the torture is of a sexual nature, claimants may have difficulty in addressing the issues.

That is the situation as it stands. The Government amendment that I moved would not change it. The amendment therefore is not necessary, but I am more than happy to say to the noble Lord that I will have the matter looked at again. I moved an amendment that I simply said was not changing policy; it was clarifying and declaratory. If we can make it a bit more clarifying and a bit more declaratory to satisfy people as to what the situation actually is, then I think we should take the opportunity to do so. So I am more than happy to take the matter away and have a look at it.

8 p.m.

Earl Russell

I am most grateful to the noble Lord, Lord Rooker. What he says is the theoretical basis of the position. As the noble Baroness, Lady Park of Monmouth, has said, it does not always work that way. I have heard of scars that were said to be self-inflicted, although they were on the man's back where he could not have reached. If the Minister can do anything to stop this sort of case happening, we will be very grateful indeed.

Lord Avebury

I am also most grateful to the Minister for promising that he will look at this particular case, although I really wanted something that went a bit wider than that. I referred back to the procedure that was followed some 10 years ago, when in the case of a dispute between the Medical Foundation and an adjudicator, Home Office experts were called in. With the best will in the world, and I am sure that the noble Countess, Lady Mar, will agree, the adjudicator is not in a position to make judgments on clinical evidence. It is a matter for the experts to do that. In this case, there were three separate medical experts, who all found increasingly that the evidence was consistent with the man's claim to have been tortured.

While I am grateful to the Minister for agreeing to look at this case, I suggest to him that the failure not only of this applicant, but as the noble Baroness, Lady Park of Monmouth, said, of others of whom we know—particularly the cases of people who have been tortured in Zimbabwe—justify a more general review of how evidence submitted on behalf of the Medical Foundation has been dealt with. I wonder whether it would be possible to create a new procedure by which the Home Office, with the help of its own experts, would be able to satisfy an adjudicator that that evidence—

The Countess of Mar

I am sorry to interrupt the noble Lord. The case referred to by the noble Lord, Lord Avebury, and the cases referred to by the noble Baroness, Lady Park, are slightly different. Many of the cases referred to by the noble Baroness have not got to the Medical Foundation. One of the big problems is that the Medical Foundation does such a wonderful job that it has a very long waiting list. If that could be overcome in some way, it would be enormously helpful.

I am a little bit worried that the noble Lord specifies just the Medical Foundation, because there are other doctors who certify that people have been tortured. Some of the doctors are not quite as efficient as others, and as a tribunal member I am aware of which are which. On the whole, we do not lightly overturn the professional judgment of the medical profession.

Lord Avebury

I agree entirely with the noble Countess that there is a more general case to be made here, as to how evidence of torture is dealt with. However, I do not think that we will get the Minister to go further than he has already this evening. Maybe we can have a discussion with him before Report stage to see whether there is anything further that we can do by way of amendments to this Bill, or whether the matter can be dealt with by conversations off-line between the Minister, the Medical Foundation and myself. I beg leave to withdraw the amendment.

Amendment No. 37A, as an amendment to Amendment No. 37, by leave, withdrawn.

On Question, Amendment No. 37 agreed to.

Schedule 2 [Asylum and Immigration Tribunal: Consequential Amendments and Transitional Provision]:

Lord Rooker moved Amendment No. 38:

Page 38, line 38, at end insert—

"(za) section 87 (successful appeal: direction) (for which purpose a direction may, in particular, provide for an order under section 40 above to be treated as having had no effect),"

The noble Lord said: In moving Amendment No. 38, I shall speak also to Amendments Nos. 39 and 40. Amendment No. 38 is necessary because of an amendment—I understand that it was Amendment No. 52—that was made in Committee. The effect of that earlier amendment is that the fact that an appeal against a decision to make an order for deprivation of citizenship under Section 40 of the British Nationality Act 1981 is pending, or that such an appeal could be brought, does not prevent an order for deprivation being made. The deprivation order might then be followed more or less immediately by the commencement of deportation action, or by certification and detention under the Antiterrorism, Crime and Security Act 2001. In either case, this further action also attracts a right of appeal.

Although the earlier amendment was actually unintentional, having reviewed the position we believe that it would make considerable sense to be able to run the appeals—the deprivation appeal on citizenship and the deportation and or certification appeal—together. We therefore propose to amend the relevant appeals procedure rules, subject to the approval of Parliament, to require the appeal against citizenship deprivation and any appeal against deportation or against certification under the 2001 Act, to be heard together.

Where a deprivation order has been made, and the appeal against the decision to make that order is later allowed, Amendment No. 38 would enable the appellate body to direct that any such order should be treated as having had no effect. In other words, the successful appellant could be deemed never to have lost his British nationality. That seems to us to be the best way to safeguard the interests of the person concerned and to avoid any difficulties that might arise if he were instead treated as having lost his citizenship and then had it restored only at the conclusion of the appeal. This could, for example, affect the entitlement to citizenship of any children born to the appellant between the making of the deprivation order and the determination of the appeal.

Amendment No. 39 is a technical amendment about practice directions for appeals against deprivation of citizenship. It removes Section 40A(8) from the British Nationality Act 1981, the effect of which is to be continued without modification, by the new Section 40A(3) which will be inserted by paragraph 4(b) of Schedule 2 to the present Bill. That will look a lot better in Hansard than it sounded just now.

Amendment No. 40 provides for the repeal of Section 40A(6) to (8) of the British Nationality Act 1981. These repeals reflect the changes made by Amendment No. 39 and by the earlier Amendment No. 52 when your Lordships' House was previously in Committee. I beg to move.

Lord McNally

The Minister should rest assured that we all sound better in Hansard. As he will know, my noble friends Lord Russell and Lord Avebury only let me intervene on special occasions. Therefore, I will stick very closely to my brief, which says that these are sensible and overdue provisions, which should be supported.

On Question, amendment agreed to.

Lord Rooker moved Amendment No. 39:

Page 38, line 42, leave out "and (7)." and insert "to (8).".

On Question, amendment agreed to.

Schedule 2, as amended, agreed to.

Schedule 3 agreed to.

Schedule 4 [Repeals]:

Lord Rooker moved Amendments Nos. 40 to 43:

Page 52, line 15, leave out "40A(3) to (5)." and insert "40A(6) to (8)."

Page 52, line 26, at end insert—

"Section 123."

Page 52, line 27, at end insert—

"State Pension Credit Act 2002 (c. 16).	In Schedule 2, paragraph 42.
State Pension Credit Act (Northern Ireland) 2002 (c. 14 (N.I.))	In Schedule 2, paragraph 31.
Tax Credits Act 2002 (c. 21).	In Schedule 4, paragraph 22."

Page 52, line 28, second column, at beginning insert—

"Section 52."

On Question, amendments agreed to.

Schedule 4, as amended, agreed to.

House resumed: Bill reported with amendments.