7 Oct 2009

Chickens come home to roost over bogus and forced marriages

The arrogance of our ruling classes is breathtaking. They do not listen. Please see earlier posts on forced and bogus marriage.

This is from David and Liz Percival's Weekly Update of UK Marriage News - No 9.37

"Sham marriage boom after judges rule Home Office crackdown is illegal

Sham marriages are booming after judges relaxed laws designed to prevent them, figures show reports the Daily Mail. The number of illegal immigrants who stage fake ceremonies to stay in the country are likely to top 500 this year, the highest level since 2004. Growing abuse of marriage laws appeared to have been stemmed that year after non-EU nationals were told they must apply for Home Office approval before marrying an EU citizen. But last year Law Lords said the rules against fake marriages breached human rights and could deny genuine couples the right to marry.

The figures, an increase of 80 per cent compared with three years ago, were produced by the Home Office and disclosed by More4 News. They showed that there were almost as many suspect marriages in the first six months of this year as in the whole of 2006. In 2004 the Home Office counted more than 3,500 suspect marriages, each involving one European Union citizen with the right to live in Britain, and one non-EU resident marrying to gain the right to stay.

Legislation introduced by former Home Secretary David Blunkett then brought in rules which said non-EU nationals must apply for Home Office approval before marrying an EU citizen. In some cases, a 'fiancĂ© visa' costing £600 was required. However a series of test cases in the High Court and Court of Appeal ended with rejection of the new law by judges. Last summer the Law Lords said the restrictions were unlawful under human rights rules. Baroness Hale, a judge who has now transferred to the Law Lords successor body, the Supreme Court, said that denying the human rights of a couple with a genuine relationship was 'neither a rational nor a proportionate response to the legitimate aims of a firm and fair immigration policy.'

The 3,578 sham marriages in 2004 fell to 282 in 2006. But after the restrictions were abandoned in the wake of the 2008 Lords decision, they have climbed by 80 per cent. There were an estimated 261 fake marriages in the first half of this year, putting numbers on course for more than 500 over 12 months. Senior registrars believe the estimates undercount the true level of immigration cheating through marriage.

Mark Rimmer, director of marriage registration at Brent council in North West London, told More4 News: 'We are seeing a steady increase in the numbers coming through our doors who are producing certificates of approval from the Home Office who have no connection with their partner, sometimes they don't even share the same language with their partner and are unable to communicate with each other in any way apart from through an interpreter.' He added: 'You don't have to be a rocket scientist to think these are not love matches. These are purely for the purposes of immigration avoidance. We are getting reports from every register office that I talk to that they are seeing people in every week, now that means we are looking at a figure in the thousands, not in the hundreds.'"

I suspected that this issue would come home to haunt those who failed to include proper provisions in the Forced Marriage (Civil Protection) Act, but I did not think it would be quite so soon.

Law Lords said the rules against fake marriages breached human rights and could deny genuine couples the right to marry. They were right.

Enforced marriage law forces couple apart where, "Rochelle is about to be deported from the UK and has been told that she will not be able to come back to see Adam until she is 21. She has become the first unintended victim of changes to UK immigration laws which were designed to protect young British Asian women from being subjected to forced marriages."

A problem with the Forced Marriage (Civil Protection) Act - as some of us pointed out at the time - was that it failed in its objective of "protecting individuals against being forced to enter into marriage without their free and full consent and for protecting individuals who have been forced to enter into marriage without such consent; and for connected purposes." [such as other bogus marriages]

It can now be seen to be preventing couples - with perfectly legitimate credentials - from getting and staying married!

One reason the Forced Marriage (Civil Protection) Act has failed is that it relied upon:

"63Q Guidance (1) The Secretary of State may from time to time prepare and publish guidance to such descriptions of persons as the Secretary of State considers appropriate about:

(a) the effect of this Part or any provision of this Part; or
(b) other matters relating to forced marriages.

(2) A person exercising public functions to whom guidance is given under this section must have regard to it in the exercise of those functions.
(3) Nothing in this section permits the Secretary of State to give guidance to any court or tribunal. "

(2) might be a Registrar, but as far as I am aware, the only 'Guidance' issued has been to Health Professionals, including:

"Forced marriage is primarily, but not exclusively, an issue of violence against women. Although throughout this document the term “women” is used to describe anyone who is trapped in, or, under threat of, a forced marriage, much of the guidance can also apply to men. Forced marriage should be regarded as a form of domestic abuse and, depending on age, child abuse. Most cases involve young women and girls aged between 10 and 30, although about 15 per cent of those helped by the Forced Marriage Unit are male."

The principle of guidance for marriage preparation should be in the Act, which should be renamed the Forced and Bogus Marriage (Civil Protection) Act. By the time Health Professionals are involved it is too late.

How can a Registrar - or an official concerned with Immigration and Border Control - distinguish between a couple entering an arranged marriage from a forced one, unless the couple have undertaken a valid assessment with a suitable facilitator who is willing to sign a certificate that he/she believes the couple have completed the programme in good faith?

If we - as a society - wish to change the culture towards respect for marriage, in our legislation we need to be a lot clearer about the implications of how we are going to support the principle "Marriage shall be entered into only with the free and full consent of the intending spouses." (Universal Declaration of Human Rights, Article 16(2))

I am suggesting additional clauses should be added concerning 'guidance':

(c) Registrars - and Immigration and Border Control Officials - must explain to all couples intending to marry the opportunities and advantages for the parties to participate together in a research-based educational programme of marriage preparation - including an assessment tool or pre-marital inventory that meets international standards.

(d) this programme is to assist them in preparing for a healthy marriage and to:

1. confirm to the Registrar or deputy Registrar the voluntary nature of their commitment to the marriage, and
2. protect themselves and each other against any possible accusations about the marriage being one that is forced or bogus.

(e) the advantage of obtaining a certificate from the facilitator of the programme of marriage preparation that they have satisfactorily completed both the educational programme and the inventory.

(f) in the event of a Registrar - or Immigration and Border Control Official - being suspicious that the "Marriage [is not being] entered into only with the free and full consent of the intending spouses" the matter must be referred with the evidence [such as a statement from the marriage preparation facilitator as to why he/she cannot sign a certificate confirming that the "research-based educational programme of marriage preparation - including an assessment tool or pre-marital inventory that meets international standards has been completed" to the appropriate Local Authority Solicitor.

In the SUMMARY OF CONSULTATION RESPONSES during the passage of the Bill - provided by the Odysseus Trust - they referred to:

3.4 Any other changes

The consultation asked for suggestions about any other changes to the Bill. Respondents made various suggestions of other issues relevant to forced marriage, including:

• The need for increased resources to tackle the problem of forced marriage, including for community groups and the voluntary sector;
• The importance of tackling domestic violence, including forced marriage, in a comprehensive, holistic way;
• The need for greater understanding of the obligations of marriage and the voluntary nature of marriage;

Among the proposed amendments was:

63Q Guidance
(1) The Secretary of State may from time to time prepare and publish guidance to such descriptions of persons as the Secretary of State considers appropriate about—
(a) the effect of this Part or any provision of this Part; or
(b) other matters relating to forced marriages.
(2) A person exercising public functions to whom guidance is given under this section must have regard to it in the exercise of those functions.

This was included in the Act - see above.

However, based on what happened to the attempts to have provision for marriage preparation included in the Family Law Act of 1996, I doubted if anyone except a horse marine would believe people could rely upon the Secretary of State in any government getting around to giving guidance to persons exercising public functions concerning marriage. I was wrong - in the sense that 'guidance' has been issued to Health Professionals [albeit they are scarcely "exercising public functions concerning marriage", but right in the sense that it is the wrong guidance being issued to the wrong people.

The Conservatives will - hopefully - have an opportunity to improve substantially the Forced Marriage [Civil Protection] Act by renaming it the Forced and Bogus Marriage (Civil Protection) Act and by including in it Guidance that requires Registrars to explain the advantages to all couples of undertaking a "research-based educational programme of marriage preparation - including an assessment tool or pre-marital inventory that meets international standards."

But we have not heard anything yet from the Conservatives to suggest they are even remotely in touch with this issue.