JOINT

Draft Asylum and Immigration Act 2004 (Remedial) Order 2010

14 March 2011

The Joint Committee on Human Rights (JCHR) publishes its second Report on the Government's proposal for a draft Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Remedial) Order 2010.

This Order intends to make the Act compatible with the European Convention on Human Rights. Section 19 of the Act creates a Certificate of Approval scheme involving people subject to immigration control: under the scheme any marriage other than in a Church of England ceremony is subject to Home Office authorisation.

The Order would abolish this scheme and would remedy the incompatibility found by the domestic courts in Baiai v Secretary of State for the Home Department (2006).

This report clears the way for the Order to be debated in both Houses of Parliament. The Committee considers that there are no reasons why this Order should not be agreed to by both Houses and recommends its approval.

Dr Hywel Francis MP, Chair of the Committee, said that "The Committee welcomes the Government's intention to end the Certificate of Approval scheme. The Government has accepted the technical chance recommended in our earlier Report, and we can see no reason why Parliament should not accept and approve this Remedial Order."

Notes

Remedial Orders are secondary legislation made under the Human Rights Act 1998. They are used to remove incompatibilities with the European Convention of Human Rights (ECHR) in primary legislation identified by either domestic courts or the European Court of Human Rights (ECtHR).

This Remedial Order was the subject of a JCHR Report published on November 16 2010 [Fifth Report of Session 2010-11, HL Paper 54/HC 599]. This Report explained that, in Baiai v Secretary of State for the Home Department (2006), domestic courts confirmed that Section 19 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 is incompatible with the right to marry without unjustified discrimination on the grounds of religion (ECHR Article 14 together with 12).

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