Leave to remain - Refusal of leave - Human rights - Right to respect for private and family life

R (on the application of Aguilar Quila) v Secretary of State for the Home Department; R (on the application of Bibi) v Secretary of State for the Home Department: SC (Justices of the Supreme Court - Lords Phillips (president), Brown, Clarke, Wilson, Lady Hale): 12 October 2011

Paragraph 277 of the Immigration Rules (HC 395) (the rules) provides, so far as material: ‘Nothing in these rules shall be construed as permitting a person to be granted entry clearance, leave to enter, leave to remain or variation of leave as a spouse or civil partner of another, if either the applicant or the sponsor will be aged under 21… on the date of arrival in the UK or (as the case may be) on the date on which the leave to remain or variation of leave would be granted.’

In November 2008, the defendant secretary of state for the home department amended paragraph 277 of the rules. The rules specified the requirement that a sponsor party be at least 18 years of age at the time of making an application for leave to enter the UK, leave to remain or variation of leave on marriage grounds. In November 2009, the secretary of state amended paragraph 277, changing the age requirement of the sponsor party from 18 to 21 (the amendment).

The grant of a ‘marriage visa’ (strictly, entry clearance, leave to enter, leave to remain or variation of leave on marriage grounds) was forbidden unless both parties to the marriage or civil partnership would be aged 21 or over on the date of the applicant’s arrival in the UK or the grant of leave to enter, leave to remain or variation of leave as applicable. The instant proceedings concerned two appeals which had been joined as they concerned the same issue. In both cases, judicial review proceedings had been brought where the change of the age requirement had prevented the claimant from entering the UK. Both claimants sought to bring applications for judicial review of paragraph 277 of the rules.

Their applications were dismissed. Following the hearing of their appeals, the Court of Appeal held that the secretary of state had applied the rules with the effect that her refusal to grant marriage visas was in breach of the claimants’ rights to respect for their private and family lives, under article 8 of the European Convention on Human Rights. The secretary of state appealed.

The secretary of state submitted that the measure would prevent, deter or delay forced marriages, and was thereby justified by paragraph 2 of article 8 of the convention. The ­question arose as to whether the amendment was necessary in a ­democratic society. The appeal would be dismissed (Lord Brown dissenting).

(1) On the evidence, it was clear that the number of forced marriages which the amendment would deter would be vastly smaller than the number of unforced marriages which it hindered. Neither in the material published prior to the introduction of the amendment, nor in the evidence in the instant case, had the secretary of state addressed that imbalance.

On the evidence, the secretary of state had failed to establish that the amendment was no more than would be necessary to accomplish her objective and that it had struck a fair balance between the rights of the parties to unforced marriages and the interests of the community in preventing forced marriages. In all events, she had failed to establish that the interference with the claimants’ rights under article 8 of the convention had been justified.

Further, there was evidence that the desire to obtain a visa was not the predominant motive for forcing a child into marriage. It was impossible to tell how many forced marriages with non-resident spouses had been deterred, or how many forced marriages with resident spouses had been substituted for those which had been deterred. It was clear, however, that the amendment could have no effect upon forced marriages occurring in the UK or the EU. Furthermore, if the amendment was not effective in preventing a forced marriage, it could have the potential to do more harm than good. The risk existed that a young woman might be sent abroad and forced to marry there, then kept abroad until she could sponsor her husband to come to the UK. It was very difficult to rescue a young person who had been trapped into marriage abroad (see [58], [75], [76] of the judgment).

On the evidence, the secretary of state had failed to establish that the amendment was no more than was necessary to accomplish her objective, nor had she established that it struck a fair balance between the rights of the parties to unforced marriages and the interests of the community in preventing forced marriages (see [58] of the judgment). (2) The right to marriage was a fundamental right. It did not include the right to marry in any particular place, at least if it was possible to marry elsewhere. It was not a qualified right, and the state could only restrict it to a limited extent, and not in such a way as to impair its essence (see [78] of the judgment).

The delay on entry was not designed to detect and deter those marriages which were or might be forced. It was a blanket rule that applied to all marriages, whether forced or free. It imposed a delay on cohabitation in the place of choice which could act as at least as severe a deterrent as a large fee. Those factors lent weight to the conclusion that it was a disproportionate and unjustified interference with the right to respect for family life to use that interference for the purpose of impeding the exercise of another and even more fundamental convention right in an unacceptable way (see [79] of the judgment).

Decision of Sedley, Pitchford and Gross LJJ [2010] All ER (D) 250 (Dec) affirmed.

Richard Drabble QC and Christopher Jacobs (instructed by Joint Council for the Welfare of Immigrants) for the first respondent; Al Mustakim and Lina Mattsson (instructed by Davies Blunden & Evans) for the second respondent; Angus McCullough QC and Andrea Lindsay Strugo (instructed by Treasury Solicitor) for the secretary of state; Karon Monaghan QC, Shahram Taghavi and Eric Fripp (instructed by Bates Wells & Braithwaite) for the first intervener; Henry Setright QC and Michael Gration (instructed by Dawson Cornwell) for the second intervener; Satvinder Juss (instructed by Riaz Khan & Co) for the third intervener.