Select Committee on European Communities Eleventh Report



Letter from Lord Tordoff, Chairman of the Committee, to Joyce Quin MP, Minister of State, Home Office

  At its meeting on Wednesday 19 November Sub-Committee F considered your Department's Explanatory Note on the above document. The Sub-Committee had the benefit of written submissions received from the Joint Council for the Welfare of Immigrants and Justice/Immigration Law Practitioners' Association (joint submission). I attach copies of the evidence received for your consideration [not printed].

  The Sub-Committee recognised that this proposal raised a number of serious legal and policy issues and agreed that I should write to you seeking further information on the following matters:

  (a) In paragraph 10 of your Explanatory Note you comment that It is evident that marriages of convenience are a problem for all Member States". What evidence is available to support your statement? How many incidences of marriages of convenience have been detected in the United Kingdom over the last five years?

  (b) The evidence received argues that the draft Resolution conflicts with existing obligations imposed on Member States under the EC Treaty and suggests that it would be unlawful for the Member States to seek to circumvent their obligations under the EC Treaty and secondary legislation passed thereunder by an agreement amongst themselves under the Third Pillar. The Sub-Committee would welcome your views on this matter.

  (c) Witnesses were concerned that the text of the proposal suggests that the status of the marriage would hinge upon an interpretation of the subjective intentions of the parties thereto and that this would reintroduce the primary purpose rule" recently abolished in the United Kingdom. ILPA/Justice have suggested that it might be desirable to spell out that a marriage cannot be solely for immigration purposes if there is, was or is intended to be nuptial cohabitation or other intimate relationship between the parties. The Sub-Committee would welcome your views on this matter.

  (d) ILPA/Justice believe that the factors set out in Article 2 of the draft text as providing grounds for believing that a marriage is one of convenience are inconsistent with the acquis communitaire relevant to family union rights. They question the wisdom or practicality of spelling out in an international resolution pointers to grounds for suspicion about a marriage. Commenting on the specific provisions witnesses suggest that the factors set out in the proposal range are:

    -   hopelessly subjective requiring public officials to enter into the realm of domestic disputes;

    -   involve an impermissible attempt to qualify the definition of marriage; and

    -   are offensive and involve an unacceptable intrusion into private life.

      The Sub-Committee would be grateful if you would indicate to what extent these factors are   already taken into consideration under the United Kingdom's existing immigration rules.

  (e) The JCWI comment that the proposal could seriously erode the family rights of non-European ethnic minorities and argue that the Government should withhold its agreement to the proposal until it is assured that ethnic minorities in other Member States have the same measure of protection against discriminatory actions as the United Kingdom. The Sub-Committee would urge the Government to ensure that the proposal will not undermine the level of protection afforded to ethnic minorities in the United Kingdom.

  The Sub-Committee noted that the draft text of the Council Resolution dated 3 October 1997 which was furnished informally had changed dramatically from the version originally deposited with your Explanatory Note and were surprised that your Department, being aware that the proposal was under scrutiny by the Sub-Committee, had not supplied a Supplementary Explanatory Note on this matter. I would draw your attention to the Select Committee's recommendation in its recent Report Enhancing Parliamentary Scrutiny of the Third Pillar" (6th Report, Session 1997-98) that a Third Pillar proposal has been deposited for scrutiny the Government must ensure that the Committee is kept informed of significant developments on the proposal at the earliest possible opportunity.

  Although the draft Resolution is on the agenda for the Justice and Home Affairs Council to be held on 4-5 December where it is likely to be adopted the Sub-Committee has decided to retain this matter under scrutiny pending a reply to the matters raised above.

19 November 1997

Letter from Joyce Quin MP, Minister of State, Home Office, to Lord Tordoff, Chairman of the Committee

  Thank you for your letter of 19 November about this proposal. The Committee raised a number of queries which I shall deal with in turn.

Evidence of Marriages of Convenience

  Before this draft proposal was tabled, the Luxembourg Presidency sought information from Member States as to whether this was an issue for them. The response to this confirmed that there was such a problem; the disclosure of this information would be a matter for each Member State. For the United Kingdom, the Office of National Statistics forwards information where Registrars have reason to believe that a marriage is one of convenience. There were 467 such notifications in 1995 and 420 in 1996. During 1995 and 1996 a total of 729 applications for leave to remain on the basis of marriage to a person settled here were refused because the Secretary of State was not satisfied that the couple intended to live together permanently. In the five years 1992 to 1996, 3460 applications for indefinite leave to remain, after the 12 months probationary period, were refused on the same grounds or because the marriage was no longer subsisting. It is clearly impossible to quantify how many marriages of convenience remain undetected.

EC Treaty Provision

  The evidence put to the committee is correct in relation to the original proposal, in that it was unclear as to whether the draft Resolution applied to residence under EC law on the basis of marriage. A preambular phrase was included in the text to make clear that the Resolution does not apply in these circumstances. In any case, Community law always has primacy over Third Pillar Agreements and the Resolution could therefore in no circumstances prevail over EC law entitlements.

Intentions of the parties to the marriage

  There is no intention to reintroduce the primary purpose rule by means of this Resolution. Before it was abolished the primary purpose rule affected not only bogus marriages which were contracted for the sole purpose of evading immigration control but also those where it was the primary reason for marriage. Typically in a primary purpose marriage the couple might have had the intention of living together permanently as husband and wife, even though the principal motive for the marriage was immigration. This is not the case with marriages of convenience, where the test is solely whether the couple intend to live together as husband and wife.

Factors for suspecting a marriage of convenience

  As I have explained above, the draft Resolution does not include in its scope residence on the basis of marriage under EC law, so there is no link to the acquis communautaire in this area. Moreover, the list of factors contained in Article 2 are intended to be only illustrative. The precise factors which are taken into account in the UK are clearly set out in the Immigration Rules. In satisfying ourselves that the Rules are met in an individual case, officials are instructed to ensure that there is no unacceptable intrusion into private life. Nothing in the Resolution will require us to go beyond our existing policy and procedures as set out in the Immigration Rules.

Discrimination against ethnic minorities

  I can give you every assurance that the proposal will be applied without discrimination on racial grounds. The Government is committed to equal treatment for all without regard to their ethnic origin.

Supplementary Explanatory Note

  When originally submitting this proposal for scrutiny, the Government's Explanatory Note set out its negotiating objectives. The revised text was made available to the Committee informally for information to confirm that negotiation was proceeding in accordance with those objectives. Had negotiation been proceeding otherwise, we would of course have resubmitted the text formally with a Supplementary Explanatory Note. However, we did not consider this justified at the interim stage, when the position of other Member States was not finalised. The text which has now emerged and which is likely to be agreed at the Justice and Home Affairs Council in December is enclosed for the Committee's information. The Government considers that this meets the objectives as originally submitted to the Committee. Pending the conclusion of the Committee's consideration, we have however formally notified the Luxembourg Presidency that this matter remains under scrutiny.

28 November 1997

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