The Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c 19) is an Act of the Parliament of the United Kingdom. It set various rules for immigrants to the United Kingdom. In 2006, section 19 of the Act was declared to be incompatible with the Convention for the Protection of Human Rights and Fundamental Freedoms under section 4 of the Human Rights Act 1998.
Section 19 dealt the problem of so-called “sham marriages”, where immigrants marry British citizens merely to gain leave to stay. In a case heard by the High Court of Justice in 2006, Mr Justice Stephen Silber ruled that as the section made an exemption for marriages held in the Anglican church, it discriminated against non-Anglicans.
Political and sociological context
In 2002 the UK Labour government published a White Paper entitled ‘Secure Borders, Safe Haven: Integration with Diversity in Modern Britain’. The Paper identified a concern that over half those claiming asylum were found not to be in need of protection. There were also concerns about the number of unqualified immigration advisors in the UK. In 2003 the government introduced a Bill to improve the existing asylum system and clamp down on its abuse by those making unfounded asylum claims. The government stated that fairness, firmness and speed would be the hallmarks of this new system.
Legal context
The Act aimed to end abuse of the immigration appeals system by dishonest applicants and unqualified advisors. To deter groundless claims and to deal with genuine claims more efficiently, the Act replaced the existing two-tier appeals system with a single tier. The Act also introduced criminal offences for those who deliberately destroyed or lost passports in order to make groundless claims, for trafficking in labour, and for providing unqualified immigration advice. Additionally, the Act provided rules about assessing the credibility of claims, especially for those claimants who travelled through a safe third country before applying for asylum in the UK. Finally, the Act aimed to deal with ‘sham marriages’ where an immigrant married a UK citizen merely to obtain leave to remain in the UK.
Main changes to the law
Section 2 created an offence of attending an asylum interview without having an immigration document establishing the holder’s identity and nationality or citizenship. It is a defence if the person: produces an immigration document within 3 days of the interview; has a reasonable excuse for not having the document; produces a false document and proves this was used in connection with his journey to the UK; or proves that he travelled to the UK without the immigration document at any stage. However, under s.2(7)(b)(iii) ‘reasonable excuse’ does not include delaying or influencing an asylum decision or complying with the instructions of a person who facilitated their entry into the UK unless it was unreasonable not to comply with that person in the circumstances.
Under s.4 it is an offence to arrange or facilitate the arrival of another person in the UK intending to exploit them or believing that another person intends to do so.
Section 8 states that certain factors may be deemed as being damaging to a claimant’s credibility when assessing an asylum claim. The section lists behaviours which are designed to conceal information or mislead. These are: failing to produce a passport on request to an immigration officer; producing an invalid passport as if it were valid; destroying, altering or disposing of a passport, ticket or travel document without reasonable excuse; failing to answer a question asked by a deciding authority without reasonable excuse; failing to make an asylum claim in a safe country if this was reasonable; and failing to make an asylum claim before being arrested or notified of an immigration decision unless the claim relies on matters arising after the arrest.
Under s.9 the Secretary of State could order that financial support be withdrawn from an asylum-seeker who had reached the end of the asylum process and exhausted their appeal rights if, without reasonable excuse, they failed to take reasonable steps to leave the UK on 14 days’ written notice. Under s.10 this included the provision of accommodation.
Section 19-25 established a Certificates of Approval scheme that required non-EEA nationals (those from outside the European Economic Area) to obtain permission from the Secretary of State to marry. Section 20 required anyone subject to immigration control to give notice in a specified form to a Registrar before marrying outside of the Church of England. Under s.25 the parties could only marry if they had entry clearance to marry or written permission from the Secretary of State.
Under s.26 the existing two-tier system of asylum and immigration appeals was replaced by a single Asylum and Immigration Tribunal headed by a President. Under this provision most appeals would be heard by a single judge, with a District Immigration Judge providing oversight.
Section 39 created an offence of advertising or offering to provide immigration advice by an unqualified person.
Schedule 3 laid down rules for third country decisions. Normally if an asylum seeker passes through a safe third country which could have heard their asylum claim their claim in the UK is halted while a decision is obtained from that country. The Schedule listed 28 safe counties of the EEA except Lichtenstein, Croatia and Switzerland. Other countries could also be declared safe on a case by case basis. These included countries where the immigrant would not face persecution or human rights violations.