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Immigration Rules (Spouses)

Volume 475: debated on Wednesday 14 May 2008

I am most grateful for the opportunity to debate this subject and to do so under your chairmanship, Mr. Weir. The issue that I want to raise is a specific one, rather than the wider issue of rules relating to spouses who seek to come to this country. Furthermore, it really applies only to female spouses, for reasons that I shall make clear. The group that I wish to discuss consists of those female spouses cleared to enter this country from the main Muslim countries on the Indian subcontinent, where the tradition of marrying cousins is still strong. I refer to Pakistan and, to a lesser extent, Bangladesh, but particularly to Azad Kashmir. My constituency has a large population from the Mirpur, Chakswari and Dadyal communities in Azad Kashmir.

When a female spouse seeks entry clearance to come to this country after having married her husband, who travelled from the United Kingdom for the ceremony, she must meet the requirements of the immigration rules. The sponsor, her husband, must be able to demonstrate clearly that he can support and sustain his wife in the United Kingdom without recourse to public funds, and that he has sufficient financial resources and accommodation to sustain them both. That is a perfectly reasonable requirement, and I take no issue with it.

After a female spouse arrives in the United Kingdom, the terms of her visa include an initial two-year probationary period, for want of a better description, during which she must demonstrate that she and her husband live together and that the marriage is happy and successful. She can then apply before the two-year period expires for indefinite leave to remain in the United Kingdom. Under the change in immigration rules—again, I take no issue with this—spouses must show that they have made genuine efforts to assimilate into the life of the United Kingdom and to learn the English language, and an additional period of limited leave to remain is allowed. However, that is not what I am discussing today.

The specific issue that I am raising relates solely to female spouses who come from the parts of the Indian subcontinent that I mentioned. It does not really apply to male spouses because, when they come to the United Kingdom, they invariably become the breadwinner of the family. As a result of custom and tradition, they become the head of the family and take responsibility for the household.

Sadly, there are instances of male spouses using marriages arranged in their extended family by both sets of parents as a means to enter the United Kingdom without any definite intention of staying with their wives. I am sure that the Minister for Borders and Immigration, if he were here today, would know of instances of extremely distressed wives whose husbands have left the family household within a short time, and I am sure that he has dealt with the repercussions, including wives who feel that they have been used and want their estranged husbands thrown out of the country before the two-year probationary period expires. Such instances are extremely sad, but again, that is not the issue that I am discussing.

I have sought this debate to bring a specific issue into the public domain. When a female spouse is granted entry clearance to come to this country and moves into the family home—whether it is a property owned or rented by her husband or her father-in-law’s house—the first thing that invariably happens is that her husband takes her passport and puts it with other valuable documents. Then they get on with their lives. If the wife becomes pregnant during the course of their first 18 months or so of living together, some of the problems that I am about to mention, although not necessarily all, are easier to resolve.

Unfortunately, the husband and wife often overlook the fact that they must regularise their stay in the United Kingdom before the two-year probationary period expires, and they only realise that that has not been done when it is drawn to their attention by another family member or they take it in mind to travel abroad. The female spouse then applies for indefinite leave to remain in the United Kingdom, but as her application is made after her visa has expired, she is technically classified as an overstayer. In my many years’ experience, for what it is worth, if the application is made before the two-year period ends, the UK Border Agency seems to take a more relaxed attitude, but the same criteria must nevertheless be fulfilled. That is where the problem arises.

If a spouse applies for indefinite leave to remain after having stayed beyond the two-year probationary period, she must provide evidence that she and her husband have been living together for the past 24 months and, according to the guidance notes, attach the SET(M) application form. She is asked for a range of documents in joint names showing the address of where she is living with her husband. The guidance notes specifically say that the items of evidence should come from at least five different official sources and that a total of 20 items of evidence would be a good indicator, but that she must provide 10.

Sadly, many female spouses—including two in my constituency, to whose cases I shall refer—cannot provide the documents required, which include telephone bills or statements, gas bills or statements, electricity bills or statements, water rates bills or statements, council tax bills or statements and mortgage statements or agreements. As I have explained, a female spouse who lives with her husband or in a house owned by her father-in-law will invariably not be named on any of those items, as they will be in the sole name of either the husband or the father-in-law.

Many spouses who come to this country from Mirpur, Chakswari and Dadyal have not only a limited command of the English language but no experience whatever of owning property in their own right or jointly. Although some people in our emancipated society may frown on such traditions, it is a fact of life that they exist. The overwhelming majority of female spouses from Azad Kashmir who live in my constituency—and, indeed, in that of the Minister for Borders and Immigration next door—will not be named on any of the listed items.

The guidance also says that other acceptable documents include bank or building society statements or pass books, but a spouse cannot open a bank or building society account unless they can prove their entitlement to live permanently in this country, so they cannot produce such documents even if they want to. The next item said to be acceptable is a tenancy agreement, but as I have said, the vast majority of female spouses go to live with their husband either in houses owned by husbands or in their father-in-law’s house. As it is an extended family matter, there is no formal tenancy agreement.

The guidance notes then refer to insurance policies, certificates or other correspondence, or loan agreements. However, for the reasons that I explained in relation to utility bills, the female spouse’s name will invariably not be on any of those items, because it is traditional for husbands to deal with insurance and loan agreements.

It might be, of course, that the wife has a copy of an English for speakers of others languages certificate saying that she studied to learn the English language, but the certificate does not give the address to which it was sent.

The guidance note then refers to membership of the Automobile Association, the Royal Automobile Club or “similar membership”, but if the female spouse does not drive, how can she produce such documents? There is then reference to

“correspondence from Government Departments or Agencies, e.g. HM Revenue & Customs, Inland Revenue, Department for Work and Pensions, including evidence that you have declared your relationship to the appropriate Government Bodies”.

It might be that the female spouse has taken a job and can produce a P60 Inland Revenue certificate, but in many cases female spouses from abroad do not take full-time employment and concentrate on running the family household and, in the fullness of time, bringing up a family. She is not going to have documents from the Department for Work and Pensions saying that she is in receipt of unemployment benefits—nor, for what it is worth, a pension. It is more than likely, therefore, that she will not be able to produce any of these documents to satisfy the criteria.

The last correspondence that the guidance notes say would be acceptable is from a general practitioner or local authority, such as an NHS card, or regarding antenatal and post-natal treatment, including a letter confirming dates of visits to the home address by a midwife. Again, the guidance specifically says that the documents must

“show your home address and the date first registered”.

Most female spouses will obtain an NHS card from a GP, which is accepted by the UK Border Agency as an acceptable document, but if she has not become pregnant during the two-year period, she will not have had any involvement with antenatal or post-natal services or with a midwife.

The final acceptable documents are proofs of

“membership of a sports or social club and membership of a religious organisation”.

The overwhelming majority of female spouses coming to this country are very protective of their femininity and are not likely to trot off to a David Lloyd fitness centre, and nor do they enrol as a member of the local mosque. Such evidence, therefore, is not applicable to female spouses who come from the areas that I have mentioned.

In a nutshell, therefore, the only documents that they might be able to produce, out of the list in the guidance notes, would be something from the Inland Revenue, if they have a job, and an NHS card from their local GP. However, that constitutes only two items out of a total of 20 asked for, with a requirement that

“at least 10 should be provided”.

When only two items are sent in with an application by a female spouse for indefinite leave to remain, the application will be turned down. She will be told by the UK Border Agency that she has no entitlement to be in the country and should go back to the country whence she came. With all due respect, that is absolute nonsense.

I am fully supportive of good border and immigration controls, but the world does not fit into neat boxes that can be ticked by everybody. Female spouses who have their applications for indefinite leave to remain in the UK turned down will not return to Pakistan or Azad Kashmir. They stay in this country—including in my constituency and that of the Minister for Borders and Immigration—and become non-persons. They have no legal status to be in UK, but the enforcement sections, based in Solihull and elsewhere, have much more important things to do—dealing with organised people trafficking and men who have deliberately involved themselves in marriages in order to obtain residence in this country, but who then desert their wives—than pursuing housewives whose only crimes are that their husbands forgot to send in the passports before the expiry of the two-year probationary period, and whose names do not appear on any of the documents to meet the criteria, owing to the customs and traditions within their community.

I shall not go into the details of the two particular cases in my constituency, to which I referred, because time does not permit. However, I have raised the issues with the UK Border Agency, which responded in detail. Basically, it said, “Well, it is the fault of the spouse. If she had sent it in before the expiry of the two-year period, there would not have been a problem.” It does not seem to understand the way life actually happens in this country. I know that the spouse should send it in before the expiry of the two years, but it does not happen. The women cannot comply with the requirement to produce 10 documents or bills containing joint names, so their applications will be turned down and they will be told to return to the country whence they came. They do not go back, so they become non-persons and just add to the number of technically illegal people in this country.

To be helpful, I told the UK Border Agency that it might care to change its system. I know that the issue of effective border control is a difficult one, particularly in dealing with cultural groups from around the world and from countries where rules and regulations are flexible, to put it mildly. However, the specific client group to which I am referring needs to be reconsidered, otherwise the number of non-persons is going to continue to grow. I pointed out to the agency that, at the very least, when a visa is issued it should be accompanied by a one-sided A4 leaflet, issued in English and other local languages, clearly stating that for spouses to regularise their stay in the UK after their two-year probationary period, they will need to present a range of documents with their name and that of their husband, and their address.

I also said that a copy of that should be signed for by the recipient of the visa and held by the high commission or embassy, so that it can at least be said by the authorities—the Home Office and the UK Border Agency—that they knew quite clearly what the rules were when they came to the country. However, the agency does not seem to get it. I mentioned earlier that it said that suggested evidence of cohabitation is set out in the SET(M) application form, which is used to apply for indefinite leave to remain as a spouse, and which can be found on the website—this is for people with a limited grasp of the English language! However, by the time that somebody applies for indefinite leave to remain by getting the SET(M) application form—namely, before the expiry of the two-year period—it is too late for them to get the documents registered in joint names.

This problem must be looked at. If it is not, we will have more and more people, who have done nothing wrong, except forgotten to send in their applications, becoming non-persons and technically illegal immigrants. That is a nonsense. I hope very much that the Minister will take back to her Department and the Minister for Borders and Immigration the message that this issue must be resolved, and that it can be with a degree of common sense on all sides.

It is a pleasure to serve for the first time under your chairmanship, Mr. Weir. I congratulate my hon. Friend the Member for Birmingham, Sparkbrook and Small Heath (Mr. Godsiff) on securing this debate on an important topic that I and the Minister for Borders and Immigration, my hon. Friend the Member for Birmingham, Hodge Hill (Mr. Byrne) are looking into, and in a moment I shall expand on some of the areas under consideration.

It is worth highlighting the importance of immigration generally. I welcome the comments of my hon. Friend the Member for Birmingham, Sparkbrook and Small Heath about the need for a robust immigration system, to attract the right people, to help the economy, to take tough action against those in the United Kingdom illegally and to set out a clear contract of rights and responsibilities for all. However, as we all know—this is one of the difficulties of the job of immigration Ministers and others in the Home Office—the system is abused.

It is important that we tackle abuse when we have evidence that it is taking place, and that we introduce rules and legislation to stop it occurring. That protects the public’s confidence in the system. However, as my hon. Friend rightly highlights, we need to ensure that genuine migrants—those who wish to live and work and raise their families in the United Kingdom—have a fair deal from the system.

Clearly, the issue of spouses is an emotive one. It is important that we have provisions in the immigration rules to ensure that we distinguish between genuine marriages and failed or sham relationships. I am discussing the issue of sham marriages with hon. Members from all parties because we need to ensure that we strike the right balance. That is the judgment we have to make when we consider any of my hon. Friend’s proposals.

The Government have introduced a number of legislative and policy changes to tackle rules relating to marriage and to combat sham marriages taking place in the UK. Under the Immigration and Asylum Act 1999, we required registrars to report their suspicions about any sham marriages. In April 2003, the probationary period for those seeking settlement on marriage was increased from one to two years with a view to limiting further the possibilities of people pretending that they were married when they were not. In addition, we introduced a no-switching rule for marriage applications, which meant that anyone in the UK on a visitor visa would not be able automatically to switch in country to a marriage visa, but would have to return to their country to apply for an entry visa. The Government believe that the two-year probationary period helps to protect the system against abuse. At the end of that period, if the UK Border Agency is satisfied that the marriage is subsisting and that the parties involved wish to live permanently together, we will grant leave of status. We have introduced the certificate of approval scheme, which is a key policy that has reduced the number of sham marriages dramatically.

We have taken important steps to tackle some of the abuses in the system. However, my hon. Friend raises some important points about cultural attitudes to marriage and issues around documentation. Some of the people to whom he refers are often vulnerable, young, unable to speak English and inexperienced in the ways of the UK, including in respect of property ownership and other issues that my hon. Friend mentioned.

At the moment, applicants for leave to enter or remain in the UK as spouses have to be 18 or over. We have to be satisfied that they have recourse to public funds. We are consulting on whether we should raise the age to 21 and insist on a level of English for any spouse to enter the UK.

Under the immigration rules, a person wishing to remain in the country as a spouse is normally granted leave to enter or remain for two years in the first instance. I may take a slightly different view from my hon. Friend on the issue of late submission of a passport. Although I appreciate what he says about passports often being put away in a safe place, it should be made clear—perhaps we should make it clear when a visa is given—that the application needs to be submitted a month before the two-year deadline arises. I think that the rule is reasonable and clear and that exceptions to it can lead to confusion and potential abuse. It is a basic rule that will not change, because it is important not just for marriages but for other applications. We need a cut-off and a deadline to apply the rules fairly.

My hon. Friend raised the important issue of documentary evidence. As the MP for a multicultural constituency, I, too, see that providing documentary evidence of cohabitation can pose a challenge to couples. As my hon. Friend rightly says, the lists of documents are in the form SET(M). He makes a fair point about the point at which someone gets hold of that form. It is unlikely that when someone applies for a visa they will also apply for their SET(M) form. It would be a good two years before they would need to use it. Perhaps we should consider providing better information when a visa is granted. My hon. Friend’s suggestion that we provide a leaflet in other languages is something we could consider.

I assure my hon. Friend that we want a robust system. It is important that we have some documentation to prove that marriages exist, but we must also ensure that people are well able to meet those requirements and that they know they need to meet those requirements at the point at which they enter as a spouse. The guidance about the required evidence is clear on the application form. Someone with the right advice is able to provide the right evidence, as many couples do.

I am aware that my hon. Friend has raised a couple of cases with the UK Border Agency. I will not go into them because of lack of time and because I do not normally talk about individual cases in such a debate. However, if someone has genuine difficulty in providing the documentation, it is open to them to provide a detailed explanatory letter. We probably need to consider more closely how the rules around that will work.

We are considering the issues in respect of marriage. We are planning a review of the marriage route and we are awaiting a judgment on the Baiai case; the hearing is scheduled for 23 and 24 June. After that we will consider certificates of approval for marriage.

In instances such as the ones that I have referred to, in which the spouse forgets to send in the application until the two-year period has passed, and when documents cannot be provided retrospectively with the joint names on, does the Minister accept that there is a case for allowing an interview to take place with a representative from the Border Agency? Those couples cannot go to appeal because they are outside the two-year period, but an interview would enable the representative to satisfy themselves officially that the application is genuine and that the couple have lived together for two years. I accept that there is a public cost, but the cost of such an interview should be borne by the applicant on the basis that they did not send in the application before the end of the two-year period. Does my hon. Friend accept that it is wholly unreasonable to say, “Sorry, you cannot provide the document, go back to Pakistan or Kashmir and apply again.”

I want to unpack that a bit. I think that it is reasonable for people to have to apply a month before their temporary visa runs out and for the Government to have a deadline and a clear rule on that point. On the issue of documentary evidence, clearly interviews are part of the process. If we are to consider charging people extra for a detailed interview, the issue that my hon. Friend raised about the cost of returning to the country of origin could be balanced out. It could be that the cost is about the same. We would thus not be reducing the cost to the individual, and we would be in danger of introducing a loophole in British immigration rules. We have to be very careful about that. That is always the balance that we make.

We are considering the issues relating to marriage. I have listened to my hon. Friend. He has raised such issues with me and my hon. Friend the Minister for Borders and Immigration in the past. We are working on a number of elements and we will include in that programme of work a review of the issues around the evidence required. My hon. Friend the Member for Birmingham, Sparkbrook and Small Heath has raised a couple of pertinent cases. However, we need to ensure that we have some documentation. It is reasonable in the modern world for people to have certain documentation. My hon. Friend referred to the national health card, which is something that everyone would have. There are other bits of evidence that people would have. Perhaps we need to look at the total volume.

I have been through all the documents listed in the guidance notes. The Minister says that there are others that would be acceptable. Will she tell me what they are?

I was only referring to the ones mentioned in the guidance notes. I am aware that time is running out, but I welcome my hon. Friend’s comments. I should also welcome his contribution to our review of marriage rules, particularly in respect of the evidence required. I look forward to having a meeting with colleagues who have a shared interest in the subject so that we can discuss the matter as we go through the review period. I know that my hon. Friend the Minister for Borders and Immigration is equally committed to ensuring that we get this right—that we tackle sham and false marriages, that there are no loopholes in the rules and that people in a genuine marriage get a fair deal.

Sitting suspended.