JCHR scrutiny of marriages Remedial Order

09 September 2010

On 26 July 2010, the Government laid its proposal for the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Remedial Order) 2010 before both Houses of Parliament.  

Remedial Orders are "fast-track" legislation made under the Human Rights Act 1998 to remove an incompatibility with Convention rights in primary legislation identified by either domestic courts or the European Court of Human Rights.  This is the fourth Remedial Order produced under the Human Rights Act 1998.  It is a “non-urgent” remedial order, which means it will only take effect after its approval by both Houses of Parliament.

The purpose of the draft proposal for a Remedial Order is to remove the incompatibility with the right to marry without discrimination in Section 19 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 identified by the domestic courts in Baiai v Secretary for State for the Home Department.    Section 19 creates a Certificate of Approval scheme involving people subject to immigration control.  The effect of the scheme is to prohibit people subject to immigration control from marrying (other than in a Church of England religious ceremony) without specific authorisation. The Government proposes to repeal the Certificate of Approval scheme. The JCHR last reported on this issue in March 2010, when it noted the commitment of the previous Government to introduce a Remedial Order to deal with this issue and regretted the delay in removing the incompatibility identified by the domestic courts in 2006.
The Joint Committee on Human Rights is required by its terms of reference to report to Parliament on any remedial order made under the Human Rights Act.  The Committee will report on the draft proposal for a Remedial Order within 60 days of its publication.

The JCHR invites submissions of no more than 1,500 words from interested groups and individuals on:

  • Whether the remedial order removes the incompatibility with Convention rights identified by the courts
  • The application and impact of the Certificate of Approval Scheme, including:
    -  The impact in practice of the decision of the House of Lords in Baiai on the scope of the scheme;

    - The operation of the ex-gratia refund scheme operated by the Government, designed to refund applicants who had suffered past hardship in connection with the fees paid for a Certificate of Approval;

  • Whether there are “compelling reasons” to use the Remedial Order process:

  • Whether the non-urgent procedure is appropriate; and
  • The proposed scope and terms of the draft proposal for the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Remedial Order) 2010. 

Please note:

Submissions should reach the Committee by 8 October 2010 and be addressed to the Commons Clerk of the Joint Committee on Human Rights, Committee Office, House of Commons, 7 Millbank, London SW1P 3JA (email: [email protected]).  Electronic submission in Word or Rich Text format is requested, but a signed hard copy should also be sent.

Evidence becomes the property of the Committee, and may be printed, placed on the Internet or circulated by the Committee at any stage.  You may publicise or publish your evidence yourself, but in doing so you must indicate that it was prepared for the Committee. If you do this parliamentary privilege will not apply to your own publication, as evidence published other than under the authority of the Committee does not attract parliamentary privilege.

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