Michaelmas Term [2011] UKSC 45 On appeal from: [2010] EWCA Civ 1482; [2009] EWHC Admin 3189

 

JUDGMENT
R (on the application of Quila and another) (FC)
(Respondents) v Secretary of State for the Home
Department (Appellant)
R (on the application of Bibi and another) (FC)
(Respondents) v Secretary of State for the Home
Department (Appellant)
before
Lord Phillips, President
Lady Hale
Lord Brown
Lord Clarke
Lord Wilson
JUDGMENT GIVEN ON
12 October 2011
Heard on 8 and 9 June 2011
Appellant Respondent (Quila)
Angus McCullough QC Richard Drabble QC
Andrea Lindsay Strugo Christopher Jacobs
(Instructed by Treasury
Solicitors)
(Instructed by Joint
Council for the Welfare of
Immigrants)
Appellant Respondent (Bibi)
Angus McCullough QC Al Mustakim
Andrea Lindsay Strugo Lina Mattsson
(Instructed by Treasury
Solicitors)
(Instructed by Davies
Blunden and Evans
Solicitors)
Intervener (The AIRE
Centre)
Intervener (Southall Black
Sisters and the Henna
Foundation)
Karon Monaghan QC Henry Setright QC
Shahram Taghavi
Eric Fripp
Michael Gration
(Instructed by Bates Wells
& Braithwaite LLP)
(Instructed by Dawson
Cornwell)
Intervener (The Asian
Community Action Group,
Sheffield)
Satvinder Juss

(Instructed by Riaz Khan
& Co)

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LORD WILSON
A. INTRODUCTION
1. These two appeals relate to one of the rules currently in force by which the
appellant, the Secretary of State for the Home Department, determines an
application for a visa to enter or remain in the United Kingdom made by the
spouse of a person who is present and settled in the UK (“a marriage visa”).
2. The Secretary of State appeals against the order of the Court of Appeal
dated 21 December 2010 (Sedley, Pitchford and Gross LJJ) [2010] EWCA Civ
1482, [2011] 3 All ER 81) by which it declared that her application of the rule so
as to refuse marriage visas to the two effective respondents was unlawful as being
– so the majority concluded – in breach of their rights under article 8 of the
European Convention on Human Rights and Fundamental Freedoms 1950 (“the
ECHR”). In effect pursuant to supplementary orders made by the Court of Appeal
the Secretary of State has now granted marriage visas to each of the two
respondents. But her appeals to this court, although academic for them, retain a
general importance which has justified their continued prosecution.
3. The rule is rule 277 of the Immigration Rules 1994 (HC395). The version of
the rule which, as substituted by HC1113, came into force on 27 November 2008
was as follows:
“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 United Kingdom or (as the case may be) on the date on
which the leave to remain or variation of leave would be granted.”
That rule therefore governed “a spouse or civil partner”. There were parallel rules
which governed “a fiancé(e) or proposed civil partner” (rule 289AA) and “an
unmarried or same-sex partner” (rule 295AA).
4. A “sponsor” is defined by rule 6 as “the person in relation to whom an
applicant is seeking leave to enter or remain as their spouse (etc)”. Thus, for
present purposes, the “sponsor” is the spouse who is present and settled in the UK,
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for example (as in each of the cases before the court) a British citizen present and
ordinarily resident in the UK. The “applicant” is the other spouse.
5. Prior to 27 November 2008 rule 277 – like the parallel rules – was in the
same terms save only that its reference to age was “under 18” rather than “under
21”. Such had been the rule since December 2004, when the minimum age for the
applicant had been raised from 16 to 18 so as to become the same as the minimum
age for the sponsor, which had been raised to the same extent in April 2003.
6. With effect from 6 April 2010 rule 277 – like the parallel rules – was
amended in a small and largely irrelevant respect. After the words “under 21” were
inserted, in parenthesis, the words “or aged under 18 if either party is a serving
member of HM Forces”.
7. The appeals require focus upon the Secretary of State’s purpose in
amending rule 277 so as to provide that, with effect from 27 November 2008, a
marriage visa should not – in the absence of exceptional, compassionate
circumstances which would attract the exercise of her discretion outside the ambit
of the rules – be granted until both the sponsor and the applicant had attained the
age of 21.
8. The Secretary of State’s purpose is clear. It was not to control immigration.
It was to deter forced marriages. At the heart of the appeals is her analysis of the
nexus between entry into a forced marriage and the increase in the minimum ages
requisite for the grant of a marriage visa. No one could contend that the nexus is
very obvious.
B. FORCED MARRIAGE
9. A forced marriage is a marriage into which one party enters not only
without her or his free and full consent but also as a result of force including
coercion by threats or by other psychological means: section 63A(4) and (6) of the
Family Law Act 1996, inserted into it by section 1 of the Forced Marriage (Civil
Protection) Act 2007 (“the Act of 2007”). The forcing of a person into marriage is
a gross and abhorrent violation of her or his rights under, for example, article 16(2)
of the Universal Declaration of Human Rights 1948, article 23(3) of the
International Covenant on Civil and Political Rights 1966 and article 12 of the
ECHR. A forced marriage is entirely different from an arranged marriage in which,
in conformity with their cultural expectations, two persons consent to marry each
other pursuant to an arrangement negotiated between their respective families. The
prevalence of forced marriage within sections of our community in the UK has
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come increasingly to the attention of a shocked public during, say, the last 12 years
as victims of it, or witnesses to it, have at last and less infrequently summoned the
courage to report it. In 1999 the Home Office established a Forced Marriage
Working Group, which published its findings in 2000. Parliament has responded
actively to revelation of the problem by enactment of the Act of 2007, which
provides the court with a flexible jurisdiction to make orders protective of a person
who may be, or has been, forced into marriage. Under renewed discussion is
whether there is any value in also making the act of forcing a person into marriage
into a specific criminal offence. The other main instrument of the state’s response
to the revelation of the problem has been the creation in 2005 by the Home Office
and the Foreign and Commonwealth Office of the Forced Marriage Unit (“the
FMU”).
10. In November 2008 the Secretary of State published guidance under section
63Q of the Family Law Act 1996, as inserted by the Act of 2007. It was for the
benefit of those exercising public functions potentially relevant to instances of
forced marriage. In the guidance the Secretary of State addressed the motives of
those who forced a person to marry in the following terms:
“36 Some of the key motives that have been identified are:
 Controlling unwanted sexuality (including
perceived promiscuity, or being lesbian, gay,
bisexual or transgender) – particularly the
behaviour and sexuality of women.
 Controlling unwanted behaviour, for example,
alcohol and drug use, wearing make-up or
behaving in a ‘westernised manner’.
 Preventing ‘unsuitable’ relationships, e.g.
outside the ethnic, cultural, religious or caste
group.
 Protecting ‘family honour’ or ‘izzat’.
 Responding to peer group or family pressure.
 Attempting to strengthen family links.
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 Achieving financial gain.
 Ensuring land, property and wealth remain
within the family.
 Protecting perceived cultural ideals.
 Protecting perceived religious ideals which are
misguided.
 Ensuring care for a child or vulnerable adult
with special needs when parents or existing
carers are unable to fulfil that role.
 Assisting claims for UK residence and
citizenship.
 Long-standing family commitments.”
Thus “Assisting claims for UK residence and citizenship” was one of 13 suggested
motives.
11. Data included in the guidance or otherwise provided by the FMU suggest
the following:
(a) most persons forced into marriage in the UK are female;
(b) for example 86% of the 815 possible cases of forced marriage considered
by the FMU between September 2009 and February 2010 related to female
victims;
(c) most victims are aged between 13 and 29;
(d) more particularly, of the 145 cases in 2005 in which the FMU provided
direct support (as opposed to general or preliminary advice) to victims or potential
victims of forced marriage, 44, i.e. 30%, related to victims aged between 18 and
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20; in 2006 the number of victims of that age was again 44 albeit out of 167 cases,
i.e. 26%; and in 2007 the number was 69 out of 212 cases, i.e. 33%;
(e) it is usually the parents (or one of them) of the victim who apply the force;
(f) most victims are members of South Asian families; and
(g) for example, of the cases in which the FMU gave general or preliminary
advice in 2008, 2009 and 2010, over 70% related to families of Pakistani,
Bangladeshi or (to a much lesser extent) Indian origin.
C. THE FACTS
12. Mr Aguilar Quila, the first respondent, is a national of Chile who was born
on 12 July 1990. His wife, Ms Amber Aguilar, is a British citizen who was born on
25 April 1991 and who until 2009 lived in England. They began a relationship in
2006 when, with his parents, the first respondent was living temporarily in
London. Later, on 17 August 2008, he returned to the UK on a student visa which
was expressed to expire on 3 August 2009. In September 2008 they became
engaged and on 22 November 2008 they were married. The Secretary of State
acknowledges that they married because they were in love. By then they were
aware of the imminent change in the rule; but even under the old rule the first
respondent was not then entitled to a marriage visa because, although he had
attained the age of 18, his wife would not attain it until 25 April 2009.
13. On 23 November 2008 the first respondent sought a marriage visa on the
basis of exceptional, compassionate circumstances. The Secretary of State
responded to the effect that the first respondent’s wife had not attained the age of
18 and that there were no such exceptional, compassionate circumstances as would
justify a discretionary grant. On 1 May 2009, acting by the Joint Council for the
Welfare of Immigrants, the first respondent sought a fresh decision on the basis
that his wife had by then attained the age of 18 and by reference to fresh material
which was said to call for the exercise of the Secretary of State’s discretion. But
she responded to the effect that, because of the serious nature of forced marriages,
the minimum age of both parties had been raised to 21; that by then the first
respondent’s case fell to be determined – and inevitably refused – by reference to
that new minimum age; and that, as before, there was no basis for a discretionary
grant. She reminded the first respondent that, by virtue of the fact that he had leave
to remain in the UK until 3 August 2009 and of the terms of section 82(2)(d) of the
Nationality, Immigration and Asylum Act 2002, he had no right of appeal against
her decision.
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14. Thus, on 31 July 2009, the first respondent, accompanied by his wife, duly
returned to Chile. But by then he had issued the claim for judicial review, which
was to be dismissed by Burnett J in the Queen’s Bench Division, Administrative
Court, on 7 December 2009 but was to be the subject of the successful appeal to
the Court of Appeal.
15. The exceptional, compassionate circumstances which the first respondent
had pressed unavailingly on the Secretary of State related in particular to the
position of his wife. He stated that it would be intolerable for them not to live
together for the following three years but that the effect on her of removal to Chile
for such a period would be highly detrimental. He explained that both her parents
were teachers; that she wanted to become a teacher of modern languages; that it
would take five years for her so to qualify – in the attainment of an undergraduate
degree for four years and of a Post Graduate Certificate of Education for the fifth
year; that she had been offered a place at Royal Holloway, University of London,
to study French and Spanish for four years beginning in October 2009, provided
that (as later she duly did) she were to attain the requisite grades at A level; and
that life in Chile for three years would set back the plans for her career to a grossly
unfair and – in that the marriage was not forced – to a wholly unnecessary extent.
16. In August 2010 the first respondent and his wife, who had been staying with
his family in cramped conditions in Santiago, moved to Ireland, where she
embarked on a course at University College, Dublin. The paradox that the first
respondent and his wife were entitled to live in Ireland but not in the UK arose
from the fact that, as an EEA citizen exercising treaty rights to live in an EU state,
the first respondent’s wife had a right to live there with him. In February 2011 the
Secretary of State granted the marriage visa to the first respondent with the result
that, with his wife, he moved back to the UK.
17. Bibi (as she invites the court to describe her), the effective second
respondent, is a citizen of Pakistan who was born on 7 July 1990 and has always
lived there. Her husband, Mohammed (as he invites the court to describe him), is a
British citizen who was born on 8 April 1990 and who, save for some weeks in
2008, has always lived in England. They were married in Pakistan on 30 October
2008. It was a marriage which, in accordance with their cultural traditions, their
two sets of parents had arranged. They allege – and the Secretary of State does not
dispute – that each of them freely consented to the marriage and that they had been
engaged since October 2007, whereupon they had begun to speak occasionally on
the telephone. They had first met in Pakistan about a week prior to the marriage.
On 1 December 2008 the second respondent, with the help of her father-in-law,
applied to the Entry Clearance Officer (“the ECO”) in Islamabad, for a marriage
visa. But the ECO had already told the father-in-law that, unless she were to apply
prior to 27 November 2008 (which was to prove impracticable for her), her
application would be rejected on the basis that, although both she and her husband
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had attained the age of 18, neither had attained the age of 21. On 19 January 2009
the ECO duly refused the application on that ground.
18. Following the marriage the second respondent and her husband appear to
have cohabited briefly in Pakistan – perhaps only for some weeks – whereupon he
returned to England. In April 2009, together with her husband, she applied to the
Administrative Court for permission to apply for judicial review of the ECO’s
refusal. It was against His Honour Judge Pearl’s refusal of permission on 5 August
2009 that she brought her successful appeal to the Court of Appeal. In May 2011
the Secretary of State granted the marriage visa to her, with the result, I presume,
that she has joined her husband in the UK.
D. THE GENESIS OF THE AMENDMENT TO RULE 277
19. On 22 September 2003 the Council of the European Union adopted
Directive 2003/86/EC. Its purpose was to determine the conditions under which
third country nationals, i.e. not citizens of the EU, who were residing lawfully in
an EU state could, by sponsorship, secure entry to it for their spouses and other
family members. It did not address, even implicitly, how an EU state should
respond to such requests when made by one of its own citizens or by a citizen of
another EU state. Article 4(5) provided:
“In order to ensure better integration and to prevent forced marriages
Member States may require the sponsor and his/her spouse to be of a
minimum age, and at maximum 21 years, before the spouse is able to
join him/her.”
20. The UK, Ireland and Denmark were not bound by the directive. As it
happens, Denmark had already in 2002 raised to 24 the minimum ages both for the
applicant and for the sponsor, and indeed in effect for all sponsors permanently
resident in Denmark: see now section 9(1)(i) of the Aliens (Consolidation) Act
2009. At the time when the ages were raised, it was argued not only that the
change would promote better integration of foreign spouses into Danish society
but also that it would contain forced marriage. But subsequent research in
Denmark did not confirm that the reform had reduced forced marriage; and it
highlighted negative – and socially alienating – effects on the reasonable
aspirations of young spouses whose marriages were not forced.
21. In about 2004, in the wake of the directive, several other EU states, such as
Germany and the Netherlands, raised their minimum ages to 21 and, again at least
in the case of some such states, not merely in the case of the limited category of
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potential sponsors who had been the subject of the directive. I will assume that
such states made the change in the hope of achieving each of the goals described in
the article: but there is no evidence as to whether their hope has proved to be
justified in either respect.
22. In the above circumstances it was entirely appropriate that the Secretary of
State should examine whether the minimum ages for a marriage visa should be
raised to 21 or 24 in the UK. In 2006 she commissioned Professor Hester and a
team at Bristol University to prepare a report on the merits of any such change.
23. But Professor Hester’s report, dated 15 February 2007, was expressly
negative. Her first recommendation was that “[t]he age of sponsorship/entry
should not be raised either to 21 or 24”. She said that the predominant view across
all aspects of the research was that any such increase would be detrimental and, in
particular, “discriminatory on racial and ethnic grounds and with regard to
arranged and love marriages”.
24. The Secretary of State did not publish Professor Hester’s report; and it was
later published independently. It was the view of the Secretary of State and of two
external peer-reviewers that, while the methodology used for the research had been
sound, the report was marred by unsubstantiated statements, unclear terminology
and sampling bias, and thus that its findings should be treated with considerable
caution. In these proceedings there has been no debate about the validity of these
criticisms.
25. In December 2007 the Secretary of State issued a consultation paper
entitled “Marriage to Partners From Overseas”. The main questions were whether,
in order to reduce the incidence of forced marriage, the minimum ages for a
marriage visa should be increased to 21. A subsidiary question was whether a
person should be required to declare her intention to be a sponsor prior to
departure from the UK in order to contract a marriage abroad.
26. On 13 June 2008 the Home Affairs Select Committee of the House of
Commons published a report entitled “Domestic Violence, Forced Marriage and
‘Honour’-Based Violence”. It was a magisterial report upon various types of
domestic abuse in the UK and it extended far beyond the subject of forced
marriage. But the report included a section on the question which the Secretary of
State had put out for consultation. It noted that the use of visa application rules in
order to tackle forced marriage was controversial. It concluded as follows:
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“110. The testimony we heard from forced marriage survivors
suggests that the desire to procure a marriage visa for a spouse can
be an important factor in forced marriage. When we asked for their
views on this issue, survivors told us that raising the age of
sponsorship for marriage visas from 18 to 21 could better equip
victims to refuse an unwanted marriage. However, associated with
such a change is a significant risk that young people would be kept
abroad for sustained periods between a marriage and being able to
return to the UK with their spouse.
111. We have not seen sufficient evidence to determine whether or
not raising the age of sponsorship would have a deterrent effect on
forced marriage. Given the potential risks involved, we urge the
Government to ensure that any changes it proposes to its policy on
visa application procedures in respect of sponsorship are based on
further research and conclusive evidence as to the effect of those
changes. This evidence must demonstrate that any changes will not
inadvertently discriminate against any particular ethnic groups.”
27. In July 2008, in the light, inter alia, of the responses to the consultation, the
Secretary of State issued her proposals for reform in a report entitled “Marriage
Visas: The Way Forward”. Although there were proposed provisions which would
equip applicants for marriage visas with greater knowledge of English, its main
proposal was to increase the minimum ages from 18 to 21. The report stated as
follows:
“3.4 We believe that there will be a number of benefits involved in
raising the age, these include:
 It will provide an opportunity for individuals to
develop maturity and life skills which may
allow them to resist the pressure of being forced
into a marriage.
 It will provide an opportunity to complete
education and training.
 It will delay sponsorship and therefore time
spent with (sometimes abusive) spouse if the
sponsor returns to the UK.
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 It will allow the victim an opportunity to seek
help/advice before sponsorship and extra time to
make a decision about whether to sponsor.
CONSULTATION RESPONSES
3.5 Supporters of the increased sponsorship age felt the proposal:
 provided an opportunity for individuals to
develop maturity and life skills.
 removed young people from parental pressure to
marry.
 gave them an opportunity to complete education
and training.
Opponents raised a variety of reasons against the proposal, stating
that it:
 could be perceived as discrimination based on
cultural differences.
 was detrimental to the human rights of young
people.
 would not prevent forced marriage since this
affects people of all ages.
 would penalise those with genuine marriage
intentions.”
Then the report quoted the urgent request recently made by the Home Affairs
Select Committee that no increase in the minimum ages be made without
conclusive evidence that it would deter forced marriage and not be discriminatory.
The report’s response was as follows:
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“3.8 We believe there is such conclusive evidence because reports
of forced marriage peak sharply at ages 18 and above. By age
21, reports of forced marriage begin to decline sharply.”
There was then a reference, in tabular form, to the statistics provided by the FMU
about the age of victims of forced marriage, to which I have referred in para 11(d)
above. But the response at para 3.8 above to the Select Committee’s call for
conclusive evidence was wholly inadequate: for the call had been for evidence not
about the age of victims of forced marriage but about whether an increase in the
minimum ages for a marriage visa would deter it.
28. The relevant section of the report concluded as follows:
“3.14 We have carefully considered the issues raised by the Home
Affairs Select Committee and the respondents to the
consultation. We have paid particular attention to whether an
increase in age from 18-21 would be proportionate given
concerns that raising the age would penalise a number of
genuine couples and discriminates against specific religious
communities where the average age of marriage is likely to be
lower including such communities where forced marriage is
uncommon.
3.15 The committee was also concerned that there is a significant
risk that young people would be kept abroad for sustained
periods between a marriage and being able to return to the UK
with their spouse. However, this has not been the general
pattern of movement observed by the Forced Marriage Unit
who indicated that sponsors generally return to the UK until
they reach the sponsorship age.”
There was no attempt in the document to explain why the Secretary of State had
concluded that the increase would indeed be proportionate in the light of its effect
on those who entered into marriages which were not forced and of whom at least
one was aged between 18 and 21. There was no attempt even to address the size of
that constituency.
29. In an annexe to the report there was an analysis of the responses to the
consultation. It was to the effect that, of the 89 relevant respondents, 45 had
supported the increase, 41 had opposed it and three had expressed mixed views. Of
the 45 in support, most had suggested that an increasing level of maturity and
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education during the three years would help a potential sponsor to resist being
forced to marry but four of them had nevertheless doubted whether the increase
would achieve its stated aim. Of the 41 in opposition, many had suggested that it
would be discriminatory towards ethnic communities in which marriage at a young
age was the cultural norm and would impact unfairly on the parties to marriages in
which at least one of them was aged between 18 and 21 in that most of such
marriages were not forced. In general the analysis of responses in the annexe was
fairly summarised in para 3.5 of the document, set out at para 27 above.
E. THE ENGAGEMENT OF ARTICLE 8, ECHR
30. In R (Razgar) v Secretary of State for the Home Department [2004] UKHL
27, [2004] 2 AC 368, Lord Bingham suggested, at para 17, that the engagement of
article 8 depended upon an affirmative answer to two questions, namely whether
there had been or would be an interference by a public authority with the exercise
of a person’s right to respect for his private or family life and, if so, whether it had
had, or would have, consequences of such gravity as potentially to engage the
operation of the article. Having analysed the authority, namely Costello-Roberts v
United Kingdom (1993) 19 EHRR 112, which, at para 18, Lord Bingham had cited
by way of justification of the terms in which he had cast his second question, the
Court of Appeal in AG (Eritrea) v Secretary of State for the Home Department
[2007] EWCA Civ 801, [2008] 2 All ER 28, observed, at para 28, that the
threshold requirement referable to the nature of the consequences was “not a
specially high one”.
31. Mr McCullough QC, on behalf of the Secretary of State, concedes that
family life arose upon the marriage of each of the respondents to their sponsors
notwithstanding that, at the date of the refusals of the marriage visas, it had
scarcely been established in the case of the second respondent and was relatively
undeveloped in the case of the first respondent. Counsel correctly suggests,
however, that the more exiguous is the family life, the more substantial are the
requisite consequences.
32. These were two British citizens who had lived throughout their lives in the
UK and who, aged 17 and 18 respectively, had just embarked upon a consensual
marriage. The refusal to grant marriage visas either condemned both sets of
spouses to live separately for approximately three years or condemned the British
citizens in each case to suspend plans for their continued life, education and work
in the UK and to live with their spouses for those years in Chile and Pakistan
respectively. Unconstrained by authority, one could not describe the subjection of
the two sets of spouses to that choice as being other than a colossal interference
with the rights of the respondents to respect for their family life, however exiguous
the latter might be.
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33. But central to this appeal is Mr McCullough’s reliance in this regard on the
decision of the ECtHR in Abdulaziz v United Kingdom (1985) 7 EHRR 471. Three
women, all lawfully settled in the UK, had married third-country nationals but – at
any rate at first – the Secretary of State had refused permission for their husbands
to remain with them, or join them, in the UK. In the second and third cases, as a
result of a relaxation of the Immigration Rules, adequate permissions had
ultimately been granted and had rendered the applications largely academic. In the
present proceedings the Court of Appeal distinguished the court’s decision in
Abdulaziz on the ground that the three women were not British citizens but women
of other nationalities with, therefore, a right of abode elsewhere. But in the first
case the woman had been deprived of her Malawi citizenship and, at the date of the
refusal, was stateless; she almost certainly had no right of abode in Malawi. In the
second case the woman had become a British citizen albeit following the date of
the refusal. And in the third case the woman, albeit not a British citizen until later,
was a citizen of the United Kingdom and Colonies at the date of the refusal. In
these circumstances it is accepted on behalf of the respondents that the ground of
distinction favoured by the Court of Appeal is untenable.
34. The decision of the ECtHR in Abdulaziz was that the refusals of permission
had not infringed the rights of the women and of their husbands to respect for their
family life under article 8 but that, in that the ground for the refusals had been a
rule which had afforded a different and unjustified treatment of male, as opposed
to female, spouses of persons lawfully settled in the UK, the women had suffered
discrimination on the ground of sex in violation of their rights under article 14,
taken together with article 8, of the Convention.
35. The importance of the decision for present purposes is the route by which
the court came to reject the complaint under article 8 alone. The majority held that
article 8 was not engaged; two judges, however, concurred in the conclusion in
relation to article 8 only on the basis that, although the article had been engaged,
the interference with respect for the family life of the applicants had been justified
under article 8(2). In para 66 to para 68 of their judgment the majority stressed
that:
(a) the suggested obligation of the state was a positive one – i.e. to take active
steps to admit the husbands – and “especially as far as … positive
obligations are concerned, the notion of ‘respect’ is not clear cut”;
(b) immigration control was an area in respect of which states enjoyed a wide
margin of appreciation;
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(c) the rights of the husbands to enter, or remain in, the UK under the rules
were known to be precarious when the marriages were contracted; and
(d) the extent of a state’s obligation to admit spouses of settled immigrants
depended upon the circumstances of each case and the women had not
shown that they could not establish family life “in their own or their
husbands’ home countries”.
36. The majority also said, at para 68:
“The duty imposed by article 8 cannot be considered as extending to
a general obligation on the part of a contracting state to respect the
choice by married couples of the country of their matrimonial
residence and to accept the non-national spouses for settlement in
that country.”
The above proposition has recently been cited with approval both in the ECtHR
(see Y v Russia (2008) 51 EHRR 21, at para 103) and in this court (see ZH
(Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011]
2 WLR 148, at para 19, per Baroness Hale).
37. Four decisions of the ECtHR subsequent to Abdulaziz deserve attention.
38. First, Gül v Switzerland (1996) 22 EHRR 93. A Turkish father, who had
been permitted on humanitarian grounds to reside with his wife in Switzerland,
failed to establish that, by refusing to allow their seven-year-old son to join them
in Switzerland, the state had interfered with respect for his family life. Although,
therefore, the court applied the decision in Abdulaziz, it stressed, at para 41, that
the father and his wife had no permanent right of abode in Switzerland. In a
powerful dissenting opinion two judges explained why in their opinion the state
had not only interfered with the applicant’s right under article 8 but, by reference
to the terms of its paragraph two, had violated it. In effect they pointed out, at para
7 and para 8, that in Abdulaziz stress had been laid on the fact that the disputed
obligation was positive (to allow the husbands to reside in the UK); that the
disputed obligation in the present case was similar (to allow the son to reside in
Switzerland); that, where the challenge was to the state’s removal of a person, the
disputed obligation was negative (not to remove him); that it would be illogical if
this elusive difference were to affect whether there had been interference with
rights under article 8; and that indeed, since the decision in Abdulaziz in 1985, the
difference in the court’s treatment of positive and negative obligations had
dwindled away.
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39. Second, Boultif v Switzerland (2001) 33 EHRR 1179. An Algerian citizen
married a Swiss citizen and was permitted to reside in Switzerland. Following his
conviction for a robbery the state refused to extend his residence permit and he
was removed from Switzerland. The court found that his right under article 8 had
been infringed. The court, at para 40, summarily addressed the initial question
whether the state had interfered with his right as follows:
“In the present case, the applicant, an Algerian citizen, is married to
a Swiss citizen. Thus, the refusal to renew the applicant’s residence
permit in Switzerland interfered with the applicant’s right to respect
for his family life …”
The question whether the couple could reasonably live together in Algeria was
answered, negatively, at para 53, only in the course of the court’s enquiry into
whether the interference was justified.
40. Third, Tuquabo-Tekle v The Netherlands [2006] 1 FLR 798. A mother,
father and their three sons were of Eritrean ethnicity but lived in the Netherlands
and had acquired Dutch citizenship. When leaving Eritrea in 1989, the mother had
left behind a daughter, then aged eight. When she was aged 15, an application was
made for her to be allowed to enter the Netherlands in order to live with the
family; but it was refused. The court held that, by the refusal, the state had violated
the rights under article 8 of all six of its members. The court observed, at para 41
and para 42, that the asserted obligation of the state was positive, that “the
boundaries between the state’s positive and negative obligations under this
provision do not lend themselves to precise definition” and that “the applicable
principles are, nonetheless, similar”. The minority view in Gül had become that of
the majority. The court did not tarry to consider interference: it moved straight to
justification.
41. And fourth, Rodrigues da Silva, Hoogkamer v Netherlands (2006) 44
EHRR 729. A Brazilian citizen lived, albeit unlawfully, in the Netherlands. She
gave birth to a daughter who lived with the father but with whom she had contact.
The court held that the state’s refusal to grant a residence permit to the mother had
violated her right and that of the daughter under article 8. The court acknowledged,
at para 38, that, in that the state had never granted a residence permit to the
mother, its breach was of a positive, rather than of a negative, obligation.
42. The difficulty for the respondents which arises out of the case of Abdulaziz
lies less in the proposition at para 68 of the judgment, set out in para 36 above, and
more in the actual decision of the majority. The proposition is only to the effect
that article 8 imposes no general obligation on a state to facilitate the choice made
Page 17
by a married couple to reside in it. On analysis, the proposition is unexceptionable:
it invites, instead, a fact-specific investigation, which logically falls within the
realms of whether the state’s obstruction of that choice is justified under paragraph
2. But the actual decision enables Mr McCullough to ask: inasmuch as there was
not even an interference with the rights under article 8 of the three women in
Abdulaziz in refusing to allow their husbands to join them, or remain with them,
how can the analogous decisions of the state in the present cases generate a
different conclusion?
43. Having duly taken account of the decision in Abdulaziz pursuant to section
2 of the Human Rights Act 1998, we should in my view decline to follow it. It is
an old decision. There was dissent from it even at the time. More recent decisions
of the ECtHR, in particular Boultif and Tuquabo-Tekle, are inconsistent with it.
There is no “clear and consistent jurisprudence” of the ECtHR which our courts
ought to follow: see R (Alconbury Developments Ltd) v Secretary of State for the
Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295 at
para 26, per Lord Slynn. The court in Abdulaziz was in particular exercised by the
fact that the asserted obligation was positive. Since then, however, the ECtHR has
recognised that the often elusive distinction between positive and negative
obligations should not, in this context, generate a different outcome. The area of
engagement of article 8 – in this limited context – is, or should be, wider now. In
that in Tuquabo-Tekle the state’s refusal to admit the 15-year-old daughter of the
mother, in circumstances in which they had not seen each other for seven years,
represented an interference with respect for their family life, the refusals of the
Secretary of State in the present case to allow the foreign spouses to reside in the
UK with the British citizens with whom they had so recently entered into a
consensual marriage must a fortiori represent such an interference. The only
sensible enquiry can be into whether the refusals were justified.
F. JUSTIFICATION UNDER ARTICLE 8(2)
44. The burden is upon the Secretary of State to establish that the interference
with the rights of the applicants under article 8, wrought by the amendment to rule
277 effective from 27 November 2008 (“the amendment”), was justified under
paragraph 2 of the article: see Marcic v Thames Water Utilities Ltd [2003] UKHL
66, [2004] 2 AC 42, para 37. But in an evaluation which transcends matters of fact
it is not in my view apt to describe the requisite standard of proof as being, for
example, on the balance of probabilities.
45. The amendment had a legitimate aim: it was “for the protection of the rights
and freedoms of others”, namely those who might otherwise be forced into
marriage. It was “in accordance with the law.” But was it “necessary in a
democratic society”? It is within this question that an assessment of the
Page 18
amendment’s proportionality must be undertaken. In Huang v Secretary of State
for the Home Department [2007] 2 AC 167, Lord Bingham suggested, at para 19,
that in such a context four questions generally arise, namely:
a) is the legislative objective sufficiently important to justify
limiting a fundamental right?
b) are the measures which have been designed to meet it
rationally connected to it?
c) are they no more than are necessary to accomplish it?
d) do they strike a fair balance between the rights of the
individual and the interests of the community?
In the present case the requisite enquiry may touch on question (b) but the main
focus is on questions (c) and (d).
46. But what is the nature of the court’s enquiry? In R (SB) v Governors of
Denbigh High School [2007] 1 AC 100 Lord Bingham said, at para 30:
“it is clear that the court’s approach to an issue of proportionality
under the Convention must go beyond that traditionally adopted to
judicial review in a domestic setting… There is no shift to a merits
review, but the intensity of review is greater than was previously
appropriate, and greater even than the heightened scrutiny test… The
domestic court must now make a value judgment, an evaluation, by
reference to the circumstances prevailing at the relevant time…
Proportionality must be judged objectively, by the court…”
Lord Brown’s call, at para 91 below, for the courts in this context to afford to
government a very substantial area of discretionary judgement is at odds with my
understanding of the nature of their duty. Indeed, in the case of Huang cited above,
Lord Bingham proceeded to explain, at para 16, that it would be wrong to afford
“deference” to the judgments of the Secretary of State on matters related to the
above questions albeit that appropriate weight had to be given to them to the
extent, in particular, that she was likely to have had access to special sources of
knowledge and advice in connection with them. He added, at para 17, that,
notwithstanding the limited right of Parliament to call upon the Secretary of State
to reconsider proposed changes in the Immigration Rules provided by section 3(2)
Page 19
of the Immigration Act 1971, it would go too far to say that any changes ultimately
made had the imprimatur of democratic approval such as would be relevant in
particular to any answer to question (d) set out in para 45 above.
47. In the present appeals the questions identified above fall upon two sides.
One side asks whether, and if so to what extent, the amendment is likely to have
deterred, and to continue to deter, forced marriages. The other side asks how many
parties to unforced marriages are likely to be condemned by the amendment to
suffer the interference with their rights exemplified in the two cases before the
court.
48. The Secretary of State’s contention that the amendment is likely to deter
forced marriages remains based upon the four bullet points included in para 34 of
her report entitled “Marriage Visas: The Way Forward”, set out in para 27 above.
Her main suggestion is that the passage of up to three years should strengthen the
ability of either the intended or the actual victim of a forced marriage to resist
either entry into it or her later act of sponsorship which, were she to have remained
living in the UK, would enable the spouses to cohabit here. The suggestion is
tenable. But ten other questions arise and, since they are but questions, there is no
need for me to identify in the materials and submissions presented to the court the
source from which they come. In what follows I will, for convenience, take the
victim of a forced marriage to be a girl present and settled in the UK whose parents
force her to marry a man resident abroad without a pre-existing right of abode in
the UK.
49. The ten questions are as follows:
a) Of the 13 motives for forcing a marriage suggested in para 36
of the guidance published by the Secretary of State in
November 2008, set out in para 10 above, how prevalent in
the genesis of forced marriages is that of “Assisting claims for
UK residence and citizenship”?
b) From the fact that a forced marriage has precipitated an
application for a marriage visa does it follow that the motive
behind it was immediately to secure the visa and that, were it
not immediately available, the marriage would not have
occurred?
c) Even if by virtue of the amendment, the ages of the girl and/or
of the man were such as to preclude the grant of a marriage
Page 20
visa for up to three years, might the parents nevertheless force
the girl into the marriage in order, for example, to prevent her
from entering into a consensual marriage which they regarded
as unsuitable?
d) Even if the effect of the amendment were to preclude the
immediate grant of a marriage visa, might the girl nevertheless
be forced to marry the man abroad and thereupon be kept
under control abroad until their ages were such as to enable
her successfully to sponsor his application for a visa?
e) In the example at (d) might the girl kept under control abroad
there have a lesser opportunity to escape from the forced
marriage than if the rules had enabled her to set up home with
the man in the UK immediately following the marriage?
f) Alternatively to the example at (d), might the girl be brought
to the UK following the forced marriage and be kept under
control in the UK until their respective ages were such as to
enable her successfully to sponsor the man’s application for a
visa?
g) Even if the preclusion of the grant of a marriage visa for up to
three years were to deter her parents from forcing the girl to
marry at that stage, might the result be an increased intensity
of control on their part over her for that period – whether by
moving her abroad or by continuing to keep her in the UK –
and, in either event, would her increasing maturity be likely to
enable her to combat it?
h) How readily could one or more false certificates of birth be
obtained which would deceive the immigration authorities into
accepting that the girl and the man were both aged over 21?
i) Might the effect of the amendment be to precipitate a swift
pregnancy in the girl, following the forced marriage and an act
or acts of rape, such as might found an application for a
discretionary grant of a marriage visa by reference to
exceptional, compassionate circumstances?
Page 21
j) Even if the effect of the amendment were to deter her parents
from forcing the girl to marry a man resident abroad without a
pre-existing right of abode in the UK, might they instead force
her to marry a man with UK or EU citizenship or some other
pre-existing right of abode in the UK?
50. The ten questions are not easily answered. Professor Hester and her team
attempted to address most, if not all, of them but, for reasons good or bad, the
Secretary of State did not accept her report. In June 2008 the Home Affairs Select
Committee urged the Secretary of State not to introduce the amendment until,
following further research, there was conclusive evidence about its effect. But she
proceeded to introduce it. The questions remain unanswered. The Secretary of
State has failed to demonstrate that, when she introduced it, she had robust
evidence of any substantial deterrent effect of the amendment upon forced
marriages.
51. I turn to unforced marriages. What was the likely scale of the inevitably
detrimental effect of the amendment on unforced marriages. A subsidiary question,
raised by the Home Affairs Select Committee in June 2008, was whether the
detrimental effect was likely to be visited disproportionately upon members of
communities with a tradition of marriage at a young age.
52. In this regard the evidence of the Secretary of State in these proceedings
was provided by Ms Smith, Deputy Director of Immigration Policy. She said:
“17. The question of proportionality in terms of the impact upon
couples intending to enter a marriage that was not forced where one
or both of the couple are aged under 21 was considered carefully
when drafting the policy.

20. …the numbers affected by the rule change constituted a very
small proportion of those applying for marriage visas for the UK. In
2006, for example, 7% (3,420) of spouses granted leave to enter the
UK were aged between 18 and 20 and 2.5% (520) of people granted
leave to remain in the UK as a spouse were within this age group. In
2007, 2.7% (1,245) of spouses granted leave to enter and 2.6% (700)
of spouses granted leave to remain in the UK as a spouse were aged
18 to 20…
Page 22
21. We concluded that as the policy would affect less than 3% of
those granted both leave to enter and leave to remain in the UK as a
spouse in 2007, and as the evidence demonstrated that the rates of
forced marriage were highest amongst those aged 17-20 in 2005-
2008, the policy would represent a proportionate response to the
issue of forced marriage, and the importance of protecting the rights
and freedoms of vulnerable persons who might be forced into
marriage would outweigh the significance of any adverse impact on
particular communities or age groups…”
53. But it establishes nothing to note first that 3,940 and 1,945 marriage visas
were granted in 2006 and 2007 respectively to those aged between 18 and 20;
second that at any rate the figure for 2007 was less than 3% of all marriage visas
granted in that year (therefore presumably amounting to about 65,000); and that
the rates of forced marriage were highest (ie about 30% – see para 11(d) above)
among those aged between 17 or 18 and 20. To deny marriage visas to 3,940 or
even only to 1,945 applicants in a year is, irrespective of percentages, to deny them
in a vast number of cases. The relevant question relates to the likely size of forced
marriages within these numbers.
54. The evidence does not begin to provide an answer to this question. By
referring back to para 11(d) above, we can compare the number of cases in 2006 in
which the FMU provided support to victims or potential victims of forced marriage
aged between 18 and 20, namely 44, with the number of visas granted to that agegroup, in that year, namely 3,940; for 2007, the comparison is of 69 with 1,945;
and, albeit only partly visible in what I have set out above, the evidence suggests a
comparison for 2005 of 44 with 3,065. But the above exercise is hardly worth the
undertaking. For on the one hand the FMU’s figures relate to all forced marriages,
irrespective of whether the spouse may reside in the UK only pursuant to a
marriage visa. On the other hand – and no doubt much more importantly – the
FMU’s figures understandably represent only a proportion of all intended forced
marriages. So double them? Or treble them? Or multiply them by ten? The only
conclusion soundly available on the evidence before the court – not challenged by
the Secretary of State save in relation to the emotive word “exile” – is, in the
words of Sedley LJ in the Court of Appeal, that “rule 277 is predictably keeping a
very substantial majority of bona fide young couples either apart or in exile” and
that it has a “drastic effect… on thousands of young adults who have entered into
bona fide marriages”. As the Secretary of State acknowledges, the amendment is,
in the words of Gross LJ, “a blunt instrument”.
55. On 10 May 2011 the Home Affairs Select Committee of the House of
Commons published a report, entitled “Forced Marriage”, by which it reviewed
developments in relation to the matters which it had addressed in its report
published on 13 June 2008. In a short section it noted the amendment introduced
Page 23
by the Secretary of State and the decision of the Court of Appeal in these
proceedings. It then summarised evidence which it had received both from Karma
Nirvana, a respected organisation providing support to victims or potential victims
of forced marriage, and from Southall Black Sisters, an intervener in these appeals
and an equally respected organisation dedicated to the protection of black and
Asian women from abuse of all types including forced marriage. The committee
stated:
“16. Karma Nirvana supported the change in the Immigration Rules
on the grounds that:
We at Karma Nirvana have received feedback from
victims that they have been helped by the rule. On the
helpline we receive a number of calls from potential
victims (and professionals on their behalf) under the
age of 21 years asking about their ‘legal’ position.
Most, if not all, seem quite relieved to find that they
have extra ‘breathing space’ in which to make up their
minds.
17. However, Southall Black Sisters disagreed that the change has
had a positive effect, stating that ‘it does not in reality protect
victims from forced marriage, but simply increases pressure on them
to remain within an abusive situation, and discriminates against
migrant communities’. In evidence to our predecessor Committee in
March 2010, Nazir Afzal of the Crown Prosecution Service, had
mixed views:
I have spoken to several members of the third sector
and police officers… and they tell me that it has had a
very positive effect in terms of the people who would
ordinarily have been forced into marriage at an earlier
age… several hundred women have not been forced
into marriage because they have been given the
opportunity to wait until beyond 21… It has sent out a
message to some families and to some communities
that they need to be taking this a little bit more
seriously than they have done. However, there has
been an increase in relation to fraud involving birth
certificates obtained abroad for individuals who are
trying to pretend that they are 21 when they are not.
Page 24
18. We have received mixed evidence about the impact of the change
in the Immigration Rules in 2008 to require sponsors of marriage
visas and their incoming spouses to be over the age of 21. We
recognise that the change may be seen as discriminatory and has the
potential for young people to be held in abusive situations for longer;
however, it has undoubtedly helped a number of young people to
resist forced marriage.”
56. The Secretary of State suggests that the Select Committee’s recent report,
not available to the Court of Appeal, remedies any deficiencies in her case in
relation to the proportionality of the amendment and thus to the justification for
her interference with the rights of the respondents. I disagree. Although its
reference to discrimination against migrant communities is, by implication, a
reference to unforced marriages within those communities, the Select Committee’s
report is, as its title suggests, upon forced marriage; and the focus of the
conflicting evidence which it surveyed related to whether the amendment had
succeeded in deterring it. The committee did not also weigh its effect on unforced
marriages in the manner mandated of the court by article 8(2).
57. There is a helpful parallel with the decision in R (Baiai) v Secretary of State
for the Home Department [2008] UKHL 53, [2009] AC 287. In order to prevent
marriages of convenience in the UK the Secretary of State introduced a scheme
under which certain persons subject to immigration control required her written
permission to marry and would not receive it unless they were present in the UK
pursuant to a grant of leave for more than six months of which at least three
months was unexpired. The House of Lords held that, notwithstanding that the
right to marry under article 12 was not qualified in the way in which article 8(2)
qualified the right in article 8(1), the state could take reasonable steps to prevent
marriages of convenience; but that the scheme represented a disproportionate
interference with the right to marry. It was, said Lord Bingham at para 31, “a
blanket prohibition on exercise of the right to marry by all in the specified
categories, irrespective of whether their proposed marriages are marriages of
convenience”. The scheme, said Lady Hale at para 43, was “over–inclusive” and
“[m]aking a serious attempt to distinguish between the ‘sham’ and the genuine was
considered too difficult and too expensive”. On 14 December 2010, in
O’Donoghue v United Kingdom (Application No 34848/07), the ECtHR approved
the decision in Baiai and extended it to two later versions of the Secretary of
State’s scheme. Furthermore, in Thlimmenos v Greece (2000) 31 EHRR 411 it held
that the application of a rule that a felon could not become a chartered accountant
infringed the rights under article 14, taken in conjunction with article 9, of a
pacifist convicted of the felony of refusing to perform military service. The court
observed, at para 47, that it was legitimate to exclude some felons from entitlement
to become chartered accountants but that there was no objective and reasonable
justification for having treated the applicant in that way.
Page 25
58. I would, in conclusion, acknowledge that the amendment is rationally
connected to the objective of deterring forced marriages. So the Secretary of State
provides a satisfactory answer to question (b) set out in para 45 above. But the
number of forced marriages which it deters is highly debatable. What seems clear
is that the number of unforced marriages which it obstructs from their intended
development for up to three years vastly exceeds the number of forced marriages
which it deters. Neither in the material which she published prior to the
introduction of the amendment in 2008 nor in her evidence in these proceedings
has the Secretary of State addressed this imbalance – still less sought to identify
the scale of it. Even had it been correct to say that the scale of the imbalance was a
matter of judgement for the Secretary of State rather than for the courts, it is not a
judgement which, on the evidence before the court, she has ever made. She clearly
fails to establish, in the words of question (c), that the amendment is no more than
is necessary to accomplish her objective and, in the words of question (d), that it
strikes a fair balance between the rights of the parties to unforced marriages and
the interests of the community in preventing forced marriages. On any view it is a
sledge-hammer but she has not attempted to indentify the size of the nut. At all
events she fails to establish that the interference with the rights of the respondents
under article 8 is justified.
59. By refusing to grant marriage visas to the respondents the Secretary of State
infringed their rights under article 8. Her appeals must be dismissed. In line with
the helpful analysis of the Upper Tribunal (Immigration and Asylum Chamber)
conducted in somewhat similar circumstances in FH (Post-flight spouses: Iran) v
Entry Clearance Officer, Tehran [2010] UKUT 275 (IAC), I consider that, while
decisions founded on human rights are essentially individual, it is hard to conceive
that the Secretary of State could ever avoid infringement of article 8 when
applying the amendment to an unforced marriage. So in relation to its future
operation she faces an unenviable decision.
LADY HALE
60. I agree that the Secretary of State has infringed the article 8 rights of the
parties to each of the marriages with which we are concerned and that these
appeals should therefore be dismissed. Lord Wilson has dealt comprehensively
with the relevant evidence, information and arguments and I add these few
comments only because we are not all of the same mind.
61. The issue, as Mr Drabble reminded us at the outset of his submissions, is
whether the Secretary of State has acted incompatibly with the Convention rights
of these particular young people. By reason of section 6(1) of the Human Rights
Act 1998, it is unlawful for her to do so. This is subject to section 6(2), where a
Page 26
public authority is acting, to put it loosely, in compliance with primary legislation
which cannot be read or given effect in any other way. That is not this case. The
Secretary of State has acted in compliance with her own Immigration Rules, which
do not even have the status of delegated legislation: see Odelola v Secretary of
State for the Home Department [2009] UKHL 25, [2009] 1 WLR 1230. She does
have a choice and it is her duty to act compatibly with the Convention rights of the
people with whom she is concerned. Of course, where delicate and difficult
judgments are involved in deciding whether or not she has done so, this Court will
treat with appropriate respect the views taken by those whose primary
responsibility it is to make the judgments in question. But those views cannot be
decisive. Ultimately, it is for the court to decide whether or not the Convention
rights have been breached: R (SB) v Governors of Denbigh High School [2006]
UKHL 15, [2007] 1 AC 100; Belfast City Council v Miss Behavin’ Ltd [2007]
UKHL 19, [2007] 1 WLR 1420.
62. The immigration rules in question, paragraph 277 (which applies to spouses
and civil partners) and its counterpart in paragraph 289AA (which applies to
fiancé(e)s and proposed civil partners), make an exception to the general rules
governing the admission of spouses and fiancé(e)s, civil partners and proposed
civil partners, of people who are present and settled or being admitted for
settlement here. Those rules (paragraphs 281 and 290) require principally that the
parties have met and intend to live permanently with each other as spouses or civil
partners; there are also requirements as to self-sufficiency and knowledge of the
English language. These requirements have a discernible connection with
immigration control. The rules reflect a general policy that, subject to such
conditions, spouses, partners and fiancé(e)s should be able to join their spouses,
partners and fiancé(e)s who are settled here.
63. The exception with which we are concerned prohibits the grant of a
“marriage visa” (strictly, entry clearance, leave to enter, leave to remain or
variation of leave on marriage grounds) unless both parties to the marriage or civil
partnership will be aged 21 or over on the date of the applicant’s arrival in the
United Kingdom or the grant of leave to enter, leave to remain or variation of
leave, as the case may be. We happen to be concerned with the extension of that
exception from those below 18 to those below 21. No-one challenged its
introduction for 16 and 17 year-olds, so we cannot speculate about them. The
crucial point is that, as the Secretary of State assures us, and the other parties
accept, the purpose of this exception has nothing to do with immigration control.
Its sole purpose is to deter or prevent forced marriages.
64. Forced marriage can be defined in a number of different ways. There is a
definition in section 63A(4) and (6) of the Family Law Act 1996 for the purpose of
the power to grant civil protection orders, which was inserted into the 1996 Act by
the Forced Marriage (Civil Protection) Act 2007: see para 68 earlier. In 2000 a
Page 27
Home Office Working Group, in A Choice by Right, defined forced marriage as “a
marriage conducted without the valid consent of both parties where duress is a
factor” (p 6). But the Group took a broad view of what constituted duress. They
pointed out that, for the purpose of rendering a marriage voidable under section
12(c) of the Matrimonial Causes Act 1973, the Court of Appeal in Hirani v Hirani
(1984) 4 FLR 232 had defined the test for duress as “whether the mind of the
applicant (the victim) has in fact been overborne, howsoever that was caused” (p
7). They went on to explain that “There is a spectrum of behaviours behind the
term forced marriage, ranging from emotional pressure, exerted by close family
members and the extended family, to the more extreme cases, which can involve
threatening behaviour, abduction, imprisonment, physical violence, rape and in
some cases murder” (p 11). More recently, The Right to Choose: Multi-agency
statutory guidance for dealing with forced marriage (2008), takes a similar broad
view, defining a forced marriage as one “in which one or both spouses do not (or,
in the case of some vulnerable adults, cannot) consent to the marriage and duress is
involved”. The duress in question is not limited to physical duress, but may
involve emotional, psychological, financial or sexual duress. An example given of
emotional duress is making the individual feel as though she is bringing shame
upon her family by not entering into the marriage. Hence both the definitions of a
forced marriage referred to above give a wider meaning to duress than its
traditional definition in the criminal law, which is limited to threats of physical
harm (Archbold, Criminal Pleading Evidence and Practice 2011, para 17.120).
But most forced marriages will be legally valid unless or until they can be avoided
or dissolved.
65. Forced marriages, even in the wider sense set out in these definitions, are
quite different from arranged marriages, in which “the families of both spouses
take a leading role in arranging the marriage, but the choice whether to solemnise
the arrangement remains with the spouses and can be exercised at any time” (A
Choice by Right, p 10). In various forms this has been a common and perfectly
acceptable practice in many, even most, societies throughout history. The idea that
young (and not so young) people should find and choose their partners without
either the help or approval of their families is a comparatively modern one. But
clearly the dividing line between an arranged and a forced marriage may be
difficult to draw, particularly in communities where there is a strong cultural
tradition that it is for the parents to control their children’s marriages. But anyone
who has read Jasvinder Sanghera’s powerful novel based on her own experiences,
Shame (Hodder and Staughton, 2007), can be in no doubt that the difference is real
and the consequences of forcing anyone into a marriage which she does not want
are grave indeed, not only for the victims but often also for their families. As the
Working Group pointed out, the perpetrators’ aim may be to strengthen the family
and protect their culture, but it may have the reverse effect of turning their children
against their background because of their experiences (A Choice by Right, p 20).
Page 28
66. In today’s world, it is recognised that everyone has the right to decide
whether or not to enter a particular marriage. Article 23(3) of the International
Covenant on Civil and Political Rights (ICCPR), in an exact echo of article 16(2)
of the Universal Declaration of Human Rights, requires that “No marriage shall be
entered into without the full and free consent of the intending spouses”: see also
article 1 of the Convention on Consent to Marriage, Minimum Age for Marriage
and Registration of Marriages, article 10(1) of the International Covenant on
Economic, Social and Cultural Rights (ICESC), article 16(1)(b) of the Convention
on the Elimination of All Forms of Discrimination against Women (CEDAW).
“Full and free” means that the marriage should be entered into without improper
pressure of any kind. Equally, it is recognised that anyone of marriageable age is
free to marry whom they choose: see article 16(1) of the Universal Declaration,
article 23(2) of the ICCPR, article 16(1)(a) of CEDAW, and of course article 12 of
the ECHR. The right to marry is just as important as the right not to marry.
67. Married couples also have the right to live together. This is inherent in the
right to found a family, which is coupled with the right to marry in the Universal
Declaration, the ICCPR and the ECHR. But the ECHR goes further, because
article 8 protects the right to respect for family life. “Family life” arises virtually
automatically upon a genuine marriage. In Abdulaziz, Cabales and Balkandali v
United Kingdom (1985) 7 EHRR 471, at para 62, the European Court of Human
Rights observed that “Whatever else the word ‘family’ may mean, it must at any
rate include the relationship that arises from a lawful and genuine marriage, such
as that contracted by Mr and Mrs Abdulaziz and Mr and Mrs Balkandali, even if a
family life of the kind referred to by the Government has not yet been fully
established”. The Court also decided, at para 63, that “family life” had been
established between Mr and Mrs Cabales, even though there was a question mark
over the formal validity of their marriage, because they had gone through a
ceremony of marriage, believed themselves to be married and genuinely wished to
cohabit and lead a normal family life. Hence all three marriages were “sufficient to
attract such respect as may be due under article 8”.
68. Most significantly for our purposes, the Court held at para 62 that “the
expression ‘family life’ in the case of a married couple, normally comprises
cohabitation. The latter proposition is reinforced by the existence of article 12, for
it is scarcely conceivable that the right to found a family should not encompass the
right to live together.” However, in the context of immigration control, the court
went on to hold, at para 68, that “The duty imposed by article 8 cannot be
considered as extending to a general obligation on the part of a contracting state to
respect the choice by married couples of the country of their matrimonial residence
and to accept the non-national spouses for settlement in that country”. In all three
cases, the marriage had been contracted after the UK spouse had become settled
here as a single person, at a time when they must have known that there was no
right for the non-UK spouse to join them here, and it had not been shown that there
Page 29
were obstacles to establishing family life in their husbands’ countries or the
countries from which they had originally come, or that there were special reasons
why this should not be expected of them. The majority therefore held that there
was no “lack of respect” for family life and thus no breach of article 8. A minority
held that there was a lack of respect, but that it was justified under article 8(2) in
the interests of the economic well-being of the country.
69. Although it has not wholly disappeared, subsequent developments have
eroded the distinction between the “negative” obligation, not to interfere in family
life by expelling one member of the family, and the “positive” obligation, to
respect family life by allowing family reunion to take place. Many later cases have
repeated the principle stated in Gül v Switzerland (1996) 22 EHRR 93, at para 38,
that “the boundaries between the state’s positive and negative obligations under
this provision do not lend themselves to precise definition. The applicable
principles are, none the less, similar. In both contexts regard must be had to the fair
balance that has to be struck between the competing interests of the individual and
of the community as a whole; and in both contexts the state enjoys a certain
margin of appreciation”. The language of “fair balance” is much more compatible
with a search for justification under article 8(2) than with identifying a “lack of
respect” under article 8(1).
70. Nevertheless, the Court continues to state that, in expulsion cases, the
question is whether the interference with the family life established in the host
country can be justified, whereas in reunion cases, the question is whether the host
country should be obliged to allow the family to settle there: for a recent example,
see Haghighi v Netherlands (2009) 49 EHRR SE8. The factors applicable in
deciding whether an expulsion can be justified under article 8(2) have been laid
down in the Chamber decision in Boultif v Switzerland (2001) 33 EHRR 1179,
approved and augmented in the Grand Chamber in Üner v Netherlands (2006) 45
EHRR 421. A similar but not identical set of factors has been referred to when
deciding whether a failure to grant a permit for family reunion violates article 8, in
cases such as Sen v Netherlands (2001) 36 EHRR 81, Tuquabo-Tekle v
Netherlands [2006] 1 FLR 798, Rodrigues da Silva v Netherlands (2006) 44
EHRR 729 and Y v Russia (2008) 51 EHRR 531.
71. However, the reunion cases do draw upon the distinction, which they
attribute to Abdulaziz, between cases where family life was established in another
country, which the parents left to come to the host country, and now wish to bring
a “left behind” child to the host country, and cases, like Abdulaziz itself, where a
couple marry when one is settled in the host country and wish to establish a home
there. In the former type of case, apart from Gül itself, the Court has often found a
violation in failing to allow the “left behind” member to join the family in the host
country. In Y v Russia, on the other hand, the Court found no violation in refusing
to allow a failed asylum seeker from China to remain with his Russian wife in
Page 30
Russia. Significantly, however, he had made no attempt to obtain a residence
permit as the husband of a Russian national (to which it appears that he would
prima facie have been entitled under Russian law) so it was an open question
whether he could have done so or whether his wife could join him in China. Even
more significantly, perhaps, while drawing its statement of principle, in para 103,
virtually word for word from para 39 of Rodrigues da Silva, the Court referred to
Boultif in one of its footnotes. It would appear, therefore, that although all these
cases depend upon their particular facts and circumstances, the approach is now
similar in all types of case. The Court’s approach is much more compatible with an
analysis in terms of justification under article 8(2) than with an analysis of the
extent to which respect is due under article 8(1): and in Omoregie v Norway [2009]
Imm AR 170, the Court expressly analysed a reunion case in article 8(2) terms.
72. It would seem, therefore, that we can safely consign the “no lack of respect”
aspect of Abdulaziz to history. But in this case that debate seems to me to be
something of a red herring. In Abdulaziz itself it was clearly established that
“family life” exists between husband and wife by virtue of their marriage and that
“family life” normally comprises cohabitation. Absent the immigration dimension,
there can be no doubt that forcing a married couple to choose either to live
separately for some years or to suspend their plans to live in one place and go to
live where neither of them wishes to live, is, as Lord Wilson puts it at para 32, “a
colossal interference” with their right to respect for family life. And in this case,
the immigration dimension can be ignored. This measure has not been adopted as a
measure of immigration control. The United Kingdom has no objection to
admitting genuine spouses who fulfil certain self-sufficiency and language
requirements to this country. The Secretary of State cannot at one and the same
time say that she is not doing this for the purpose of controlling immigration and
rely upon jurisprudence which is wholly premised on the state’s right to control
immigration. So the only question is whether this “colossal interference” can be
justified under article 8(2).
73. The justification claimed is that this measure will prevent, deter or delay
forced marriages. This is undoubtedly a legitimate aim, in article 8(2) terms, “for
the protection of the rights and freedoms of others”. The action taken was
undoubtedly “in accordance with the law”. The sole question is whether it was
“necessary in a democratic society”, in other words, whether it was a proportionate
response to a pressing social need. As Lord Wilson has shown, there are many
reasons to conclude that it was not.
74. First and foremost, although nobody knows the figures, it is clear that the
rule will interfere with many more entirely voluntary marriages than it will
prevent, deter or delay forced marriages. The scale and severity of the impact upon
these unforced marriages has scarcely been considered. Nicola Smith, in her first
witness statement on behalf of the Secretary of State, says that it was considered
Page 31
carefully, but the reasoning was that, as only a small proportion of foreign spouses
are from this age group, the impact was proportionate. No-one has said: “We know
that many innocent young people will be caught by this rule but we think that the
impact upon them will not be so great while the protection given to victims of
forced marriage will be so much greater”. There are, of course, circumstances in
which the imposition of a “blanket” rule can be justified. The best known example
is the ban on assisting suicide, upheld by the Strasbourg Court even though not
every would-be suicide was vulnerable and in need of its protection: see Pretty v
United Kingdom (2002) 35 EHRR 1. But even then, an important factor in the
Court’s decision was the prosecutor’s discretion: “It does not appear to be arbitrary
… to reflect the importance of the right to life, by prohibiting assisted suicide
while providing for a system of enforcement and adjudication which allows due
regard to be given in each particular case to the public interest in bringing a
prosecution . . .” (para 76). We know from cases such as Hirst v United Kingdom
(No 2) (2005) 42 EHRR 849, para 82, that a general, automatic, indiscriminate
restriction (their word) on a vitally important Convention right falls outside any
acceptable margin of appreciation. We are, of course, concerned with a restriction
rather than a perpetual ban, but it is none the less general, automatic and
indiscriminate. In this case, it is understood that individualised decisions may
create their own problems, because taking steps to determine whether or not the
marriage is forced may exacerbate the risks to the reluctant spouse. But, as the
House of Commons Home Affairs Committee has pointed out, the Government
has a mechanism to help reluctant sponsors: Domestic Violence, Forced Marriages
and “Honour”-based Violence, 6th Report of Session 2007-08, HC 263-I, paras
112–114.
75. Secondly, it is entirely unclear whether the rule does have the desired effect
upon the marriages which it is designed to prevent or deter. Karma Nirvana gave
evidence that some girls ringing their helpline have found it helpful to be able to
say to their families that they will not be able to sponsor an immigrant spouse until
they are both 21: House of Commons Home Affairs Committee, Forced Marriage,
8th Report of Session 2010-12, HC 880, para 16. But there is also evidence that the
desire to obtain a visa is not the predominant motive for forcing a child into
marriage. It is only the 12th of the list of 13 motives given in the statutory
guidance: see para 10 earlier. We have no idea how many forced marriages with
non-resident spouses have been deterred. We have no idea how many forced
marriages with resident spouses have been substituted for those which have been
deterred. We do know that the rule can have no effect at all upon the forced
marriages which take place within this country or within the European Union.
76. Thirdly, we also know that if the rule is not effective in preventing a forced
marriage it may do a great deal more harm than good. A young woman may be
sent abroad and forced to marry against her will and kept there until she can
sponsor her husband to come here. During this time she may be raped many times,
Page 32
bear children she does not want to have and be deprived of the education and life
which she would otherwise have had here. Even if she is allowed to come home,
she will not be able to escape from the marriage. She will be obliged to stay
married so that she can sponsor her husband to come here. The rule will have made
her life more difficult. The cases coming before the Family Division of the High
Court, although only the tip of the iceberg, provide ample illustration of the
difficulties of rescuing a young person who has been trapped into marriage abroad:
see, for example, In re KR (Abduction: Forcible Removal by Parents) [1999] 2
FLR 542.
77. Hence it is scarcely surprising that the views of knowledgeable people and
organisations are so divided. While Karma Nirvana support the change, Southall
Black Sisters and the Henna Foundation do not. In 2008, the Home Affairs
Committee concluded, at para 111, that there was not sufficient evidence to
determine whether it would have the desired deterrent effect. Given the potential
risks involved, it urged that the age should not be raised without further research
and conclusive evidence. There certainly was no conclusive evidence when the
change was made. The Department had previously commissioned research from
Bristol and Manchester Universities, which found that the change would be
unlikely to prevent forced marriages, and indeed might increase the risk of
negative actions associated with the increased age (Hester and others, Forced
Marriage: the risk factors and the effect of raising the minimum age for a sponsor,
and of leave to enter the United Kingdom as a spouse or fiancé(e), 2007, chapter
3). The Department concluded that, because of methodological difficulties, these
findings should be treated with caution and not regarded as representative. They
went on to publish their own consultation paper, Marriage to Partners from
Overseas (December, 2007). Six months later, they published their conclusions, in
Marriage Visas: The Way Forward (July, 2008). Clearly, those who choose to
respond to consultation papers are even less representative than the organisations,
individuals and focus groups who were chosen for the purpose of the academic
research. Even so, the response was hardly a ringing endorsement: 15 of the 29
individual respondents supported the change, the organisations were evenly
divided between supporters and opponents and three organisations had mixed
views. None of this amounts to the conclusive evidence for which the Home
Affairs Committee called in 2008. None of it amounts to a sufficient case to
conclude that the good done to the few can justify the harm done to the many,
especially when there are so many other means available to achieve the desired
result.
78. There is a further reason for holding the interference disproportionate.
Although the means used is an interference with article 8 rights, the object is to
interfere with article 12 rights. The aim is to prevent, deter or delay marriage to a
person from abroad. The right to marry is a fundamental right. It does not include
the right to marry in any particular place, at least if it is possible to marry
Page 33
elsewhere: see Savoia and Bounegru v Italy (Application No 8407/05)
(unreported), Admissibility Decision of 11 July 2006. But it is not a qualified
right: the state can only restrict it to a limited extent, and not in such a way or to
such an extent as to impair its very essence. In O’Donoghue v United Kingdom
(Application No 34848/07) (unreported) given 14 December 2010, the Court was
concerned with the Home Office scheme for approving marriages with people
from abroad, the first version of which was struck down by the House of Lords in
R (Baiai) v Secretary of State for the Home Department [2008] UKHL 53, [2009]
1 AC 287. The Court agreed that a system of approval designed to establish the
capacity of the parties to marry and whether or not it is a marriage of convenience
is not objectionable. But this scheme was objectionable for a number of reasons:
first, the decision to grant a certificate was not based on the genuineness of the
marriage; second, it imposed a blanket prohibition on certain categories of people;
and third, the fee was set at a level which the needy could not pay. A fee fixed at
such a level could impair the essence of the right to marry.
79. This scheme shares all three characteristics. The delay on entry is not
designed to detect and deter those marriages which are or may be forced. It is a
blanket rule which applies to all marriages, whether forced or free. And it imposes
a delay on cohabitation in the place of their choice which may act as at least as
severe a deterrent as a large fee. I say this, not to conclude that there has been a
violation of these couples’ right to marry. They have in fact both been able to get
married, one in England and one in Pakistan. But these factors lend weight to the
conclusion that it is 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.
80. Like Lord Wilson, therefore, I would hold that the Secretary of State has
acted incompatibly with the Convention rights of these two couples. I also agree
with him that, although we are only concerned with these young people, it is
difficult to see how she could avoid infringing article 8 whenever she applied the
rule to an unforced marriage.
LORD BROWN
81. Forced marriages are an appalling evil. Most commonly the victims are
young women and all too often such marriages occur within the immigrant
community. One reason for this, amongst several identified by the National Centre
for Social Research (NCSR) in their July 2009 report, is that:
Page 34
“FM can be a way of ensuring land, property and wealth remain
within a family. It may take place because of a long-standing family
commitment or to appease an aggrieved family member. This is
often associated with assisting a claim for UK residency and
citizenship.” (para 2.1)
82. One way of seeking to combat this aspect at least of the problem of forced
marriages has been by raising the age at which a UK national or settled resident
can sponsor a fiancée or spouse seeking admission to this country (and also the age
at which a fiancée or spouse may gain entry). In April 2003 the age for
sponsorship was raised from 16 to 18 and in December 2004 the age for those
seeking entry was similarly raised. As stated in the July 2008 Home Office UK
Border Agency Report (proposing a further such increase from 18 to 21) Marriage
Visas: The Way Forward: “These measures were introduced to help tackle the
problem of forced marriage with the aim of giving young people extra time to
mature which would help them to resist inappropriate family pressure to marry.”
(para 3.1)
83. The proposed further increase from 18 to 21 was implemented by the
amendment of paragraph 277 of the Immigration Rules (HC 395) with effect from
27 November 2008. It is this increase which by order made on 21 December 2010
the Court of Appeal declared to be unlawful, at least where, as in the present cases,
one party to the (actual or proposed) marriage is a UK national. The essential
ground on which the Court of Appeal held the increase to be unlawful was that its
interference with the respondents’ article 8(1) rights was unjustified and
disproportionate (indeed, in Gross LJ’s view, “irrational or unreasonable in the
traditional, common law, Wednesbury sense”). It is my misfortune to disagree with
what I understand will be the decision of the majority of the court on this further
appeal to uphold the Court of Appeal’s conclusion.
84. The Court of Appeal did not have, as this Court has had, the advantage of
the May 2011 report (with evidence annexed) of the House of Commons Home
Affairs Committee on Forced Marriage. This report, having noted the Court of
Appeal’s ruling in the present case and that “this matter is still currently before the
courts” continues:
“16. Karma Nirvana [the largest NGO concerned with the victims of
forced marriage and an organisation of unchallenged repute]
supported the change in the Immigration Rules on the grounds that:
‘We at Karma Nirvana have received feedback from victims that
they have been helped by the rule. On the helpline we receive a
number of calls from potential victims (and professionals on their
behalf) under the age of 21 years asking about their ‘legal’ position.
Page 35
Most, if not all, seem quite relieved to find that they have extra
‘breathing space’ in which to make up their minds.
17. However, Southall Black Sisters disagreed that the change has
had a positive effect, stating that ‘it does not in reality protect
victims from forced marriage, but simply increases pressures on
them to remain within an abusive situation and discriminates against
migrant communities.’
In evidence to our predecessor Committee in March 2010, Nazir
Afzal of the Crime Prosecution Service, had mixed views:
‘I have spoken to several members of the third sector and police
officers . . . and they tell me that it has had a very positive effect in
terms of the people who would ordinarily have been forced into
marriage at an earlier age . . . several hundred women have not been
forced into marriage because they have been given the opportunity to
wait until beyond 21 . . . It has sent out a message to some families
and to some communities that they need to be taking this a little bit
more seriously than they have done. However, there has been an
increase in relation to fraud involving birth certificates obtained
abroad for individuals who are trying to pretend that they are 21
when they are not.’
18. We have received mixed evidence about the impact of the change
in the Immigration Rules in 2008 to require sponsors of marriage
visas and their incoming spouses to be over the age of 21. We
recognise that the change may be seen as discriminatory and has the
potential for young people to be held in abusive situations for longer;
however, it has undoubtedly helped a number of young people to
resist forced marriage.”
The overall balance of this latest report, as it seems to me, is in favour of the rule
change. True, Southall Black Sisters (one of the interveners before this court) are
against it. But their view is more than offset by that of Karma Nirvana and Mr
Afzal’s only concern appears to be in respect of forged birth certificates.
85. There is furthermore before this court information about the practice of
other EU countries which impose minimum ages for marriage visas. Germany,
Austria and the Netherlands impose an age requirement of 21 for both parties
(including their own citizens) precisely as the UK does. Belgium is planning to
Page 36
have the identical rule (although at present it does not apply to Belgian citizens or
EU nationals). Denmark has the same rule except that it imposes a minimum age
requirement of 24 rather than 21. In addition our attention is drawn to Council
Directive 2003/86/EC of 22 September 2003 on the right to family reunification
which, with regard to third country national sponsors, provides (by article 4(5)):
“In order to ensure better integration and to prevent forced
marriages Member States may require the sponsor and his/her
spouse to be of a minimum age, and at maximum 21 years, before
the spouse is able to join him/her”. (emphasis added)
The October 2008 Report from the Commission to the European Parliament and
the Council on the application of that Directive stated in respect of article 4(5):
“Most Member States made use of this optional clause, arguing that
it can help prevent forced marriages.”
86. Now it is of course obvious that this rule has significant disruptive effects
on many young couples whose actual or proposed marriages are entirely voluntary
– indeed, the very substantial majority of those affected. Predictably these couples,
whether or not they marry, will be kept apart or have to live abroad. As, moreover,
is recognised in a recent statement (dated 9 June 2011) from Suzelle Dickson, the
Joint Head of the Forced Marriage Unit (FMU):
“The FMU is aware of a concern that the increase in the minimum
age for obtaining a marriage visa would lead to young people being
kept abroad against their will for an extended period following the
marriage until reaching the age for sponsorship.
She adds, however:
From the FMU’s experience the majority of reluctant sponsors return
to the UK soon after the marriage although there are no statistics or
data held in relation to this. This is generally so that the sponsor can
establish themselves financially, gaining employment so that they
can support the visa application.”
87. It is also perfectly true that, certainly at the time this measure was
introduced in November 2008, there had been little in the way of research to
indicate just how far the rule would help in combating forced marriages. As,
Page 37
indeed, the 2011 Home Affairs Committee Report noted (at para 14), their
predecessor committee in May 2008 had concluded:
“We have not seen sufficient evidence to determine whether or not
raising the age of sponsorship would have a deterrent effect on
forced marriage. Given the potential risks involved, we urge the
government to ensure that any changes it proposes to its policy on
visa application procedures in respect of sponsorship are based on
further research and conclusive evidence as to the effect of those
changes.”
The unfortunate fact is, however, that, by the same token that the full extent of the
problem of forced marriage is impossible to gauge – as stated in the NCSR July
2009 report (para 3), “it is likely that there are a large number of victims who have
not come to the attention of any agencies or professionals”, described as “hidden”
cases – so too research is problematic and “conclusive evidence” impossible to
come by. The reason forced marriages are hard to detect is, of course, that victims
inevitably risk yet further serious harm and suffering if they reveal the true facts.
Lord Wilson (at para 49 of his judgment) poses ten questions – all, I readily
accept, perfectly good questions – which (at para 50) he recognises “are not easily
answered” and “remain unanswered.” The unfortunate fact is, however, that these
questions can never be satisfactorily answered and that a judgment call is therefore
required. This is a matter to which I return at para 91 below. Or is it to be said that
the whole matter is all just too difficult and uncertain and that the Secretary of
State is therefore disabled from taking the course adopted by those other EU
countries which share her view on the best way forward (although not apparently
from increasing the sponsoring age from 16 to 18 as was earlier done)?
88. For my part, therefore, I would be less critical than the majority of the
Secretary of State’s view – the Hester Research Report having been analysed by
Immigration Research and Statistics and two external peer-reviewers as not of
sufficient quality to be published by the Home Office – that, “public consultation
[having] found that a small majority of respondents were in favour . . . , raising the
marriage visa age would represent a robust and publicly endorsed approach to the
problem of forced marriage.” (para 33 of Nicola Smith’s witness statement for the
appellant dated 30 October 2009).
89. Altogether more important than this, however, as it seems to me, is that this
court’s duty is to decide the appeal, not by a reference to the sufficiency or
otherwise of the research carried out by the Home Office before the new rule was
introduced, but rather by reference to the proportionality as perceived today
between the impact of the rule change on such “innocent” young couples as are
adversely affected by it and the overall benefit of the rule in terms of combating
Page 38
forced marriage. As Lord Bingham of Cornhill said in R (SB) v Governors of
Denbigh High School [2007] 1 AC 100, 116, para 31: “what matters in any case is
the practical outcome, not the quality of the decision-making process that led to
it.”
90. In the light of all the material now before this court, most notably the May
2011 Home Affairs Committee Report and Karma Nirvana’s evidence before it,
the evidence of other EU countries imposing similar minimum age requirements
for sponsoring marriages, the 2003 EC Directive (and the 2008 Council Report on
its application) recognising that such requirements are widely regarded as helping
to prevent forced marriages, the original, never disputed, increase in the age
requirement for sponsorship from 16 to 18 with that aim in mind, together with
such (admittedly, albeit to my mind inevitably, limited) Home Office statistical
evidence as suggests the benefit of a further such increase from 18 to 21, I find it
hard to see how this court can properly strike down the rule as incompatible with
article 8.
91. The extent to which the rule will help combat forced marriage and the
countervailing extent to which it will disrupt the lives of innocent couples
adversely affected by it is largely a matter of judgment. Unless demonstrably
wrong, this judgment should be rather for government than for the courts. Still
more obviously, the comparison between the enormity of suffering within forced
marriages on the one hand and the disruption to innocent couples within the 18-21
age group whose desire to live together in this country is temporarily thwarted by
the rule change, is essentially one for elected politicians, not for judges. Lady Hale
suggests (at para 66 of her judgment) that: “The right to marry is just as important
as the right not to marry.” But she cannot possibly mean by this that the
postponement by up to three years of a couple’s wish to live together as man and
wife in this country involves just as great a violation of human rights as a forced
marriage. What value, then, is to be attached to preventing a single forced
marriage? What cost should each disappointed couple be regarded as paying?
Really these questions are questions of policy and should be for government rather
than us. Of course, the ultimate decision on article 8(2) proportionality must be for
the courts but in this particular context the courts should to my mind accord
government a very substantial area of discretionary judgment. Huang v Secretary
of State for the Home Department [2007] 2 AC 167 (to which Lord Wilson refers
at para 46 of his judgment) was a very different sort of case from the present,
concerning as it did the article 8 claims of two particular individuals on their own
special facts. No one was seeking there, as here, actually to strike down an
immigration rule. Certainly, at paragraph 16 of the committee’s opinion (given by
Lord Bingham) in Huang, we deprecated the use of the term “deference” to
describe the weight to be given to certain factors considered important by the
Secretary of State. But we expressly recognised the need to accord “appropriate
weight to the judgment of a person with responsibility for a given subject matter
Page 39
and access to special sources of knowledge and advice.” That is precisely what I
am suggesting should be done here: it is the Secretary of State who has the
responsibility for combating forced marriages in the context of immigration and
who should be recognised as having access to special sources of knowledge and
advice in that regard.
92. Lady Hale (at para 74 of her judgment) says that: “We know from cases
such as Hirst v United Kingdom (No 2) (2005) 42 EHRR 849, para 82, that a
general, automatic, indiscriminate restriction on a vitally important Convention
right falls outside any acceptable margin of appreciation.” I confess to the greatest
difficulty in understanding the suggested relevance of Hirst in the present context.
Were the UK government now to legislate to accord the vote, say, to all prisoners
serving less than four year terms of imprisonment, could it then seriously be
argued that the rule (denying the vote to those serving four years or more) would
still fall foul of some principle against “a general, automatic, indiscriminate
restriction?” I suggest not and that that would be the real parallel with the rule in
the present case (just as with the previous rule postponing sponsorship from 16 to
18 as to which Lady Hale says nothing as, indeed, she says nothing about the
similar rules adopted in other Council of Europe states).
93. In any event, it is not as if the Secretary of State makes no exception
whatever to the operation of the rule. Obviously, given the difficulty of
discovering which marriages (or proposed marriages) are forced, exceptions
cannot be too readily made if the rule is to have its intended effect. But, in
exceptional compassionate circumstances (perhaps, for example, where children
are involved or the woman is pregnant) or where, indeed, on the particular facts of
an individual case article 8 would otherwise be breached (the demonstrable
disadvantage to a particular couple plainly outweighing the public interest in
maintaining a general rule for the benefit of the wider community, a category of
exception likely to overlap with the first), the rule will be disapplied. Such
exceptions, one may note, are broadly mirrored in the Danish legislation (helpfully
supplied to us following the hearing by Mr Setright QC acting on behalf of the
second interveners) which, by section 9c(i) of the Aliens (Consolidation) Act
2009, provides for a resident permit to be issued to an alien under 24 upon the
fulfilment of certain specified conditions “if exceptional reasons make it
appropriate, including regard for family unity”.
94. Similarly the exception to rule 277 constituted by its further amendment
with effect from 6 April 2010 to reduce the minimum age to 18 “if either party is a
serving member of HM Forces”, so far from “mak[ing] all but untenable the Home
Secretary’s contention that an all-embracing rule, making no distinction of
persons, is necessary if the objective is to be met” (Sedley LJ’s judgment at para
57), is to my mind convincingly explained in Nicola Smith’s third witness
statement (before the Court of Appeal) dated 14 October 2010:
Page 40
“The change reflects the unique circumstances in which military
personnel operate. Additional support provided by the Armed Forces
to families during deployments is more efficiently delivered if they
live close to the Service person’s duty station. This support gives a
Service person a degree of reassurance when they are deployed on
operations and is considered to have a positive effect on families at
home. It is the Ministry of Defence’s view that military personnel
will be more operationally effective when deploying to difficult
environments if they have increased certainty that their spouse or
partner will not be excluded from the UK.”
95. Mr Al Mustakim on behalf of the respondents in the second appeal and all
the interveners (although conspicuously not Mr Drabble QC for the respondents in
the first appeal) seek to rely on the decision of the House of Lords in R (Baiai) v
Secretary of State for the Home Department [2009] AC 287 in support of an
argument under article 12 of the Convention. As Sedley LJ records (para 47 of his
judgment), Mr Al Mustakim and the AIRE Centre placed the right to marry at the
centre of their arguments and, indeed, Mr Satvinder Juss for the third intervener
contends before us (para 1 of his written case) that Baiai “is dispositive of this
appeal”. In my judgment, however, the differences between the two cases are
altogether more striking than their similarities and reliance here on the decision in
Baiai is entirely misplaced.
96. Baiai involved a direct contravention of the first limb of article 12, the right
to marry. Here by contrast the case cannot be put higher than an interference with
the right to found a family. As stated in Clayton and Tomlinson’s The Law of
Human Rights, 2nd ed, (2009) para 13.114: “a claim that legal restrictions preclude
a couple from marrying will come under article 12 whereas complaints concerning
the state’s failure to provide the material circumstances which make marriage
effective will engage article 8”. Secondly, the legitimate aim advanced for the
blanket prohibition in Baiai was the combating of marriages of convenience, ie
marriages designed to defeat immigration control. Here by contrast the aim is to
combat forced marriages, obviously a more compelling objective. Thirdly, the
justification advanced for adopting a blanket prohibition rather than investigating
each application individually has been very different in the two cases. It is one
thing to stigmatize a rule as “insufficiently precisely targeted” (Ms Monaghan
QC’s characterisation of the respective policies at para 20 of her written argument
for the AIRE Centre) if the only reason put forward for not considering cases
individually is that “such investigation is too expensive and administratively
burdensome” (para 31 of Lord Bingham of Cornhill’s judgment in Baiai); quite
another to do so given, as here, the impossibility (explicitly recognised by Mr
Setright in argument) of satisfactorily investigating individual applications in the
context of forced marriages.
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97. It is now an established principle of our law that the Convention should not
be interpreted and applied more generously in favour of an applicant than the
Strasbourg jurisprudence clearly warrants. If this court now concurs in striking
down rule 277 on article 8 grounds, there is nothing the Secretary of State can do
by way of an appeal to Strasbourg to reinstate it. Are we really to say that the
position is plain and that Germany, Austria, the Netherlands, Belgium, Denmark
and other such Council of Europe states with similar rules must also necessarily be
in breach of article 8? What if the equivalent rule is later challenged elsewhere in
Europe and eventually upheld in Strasbourg? Article 8 is a difficult provision
which has already led to some highly contentious, not to say debateable, decisions.
Upon that I am sure we would all agree. In a sensitive context such as that of
forced marriages it would seem to me not merely impermissible but positively
unwise for the courts yet again to frustrate government policy except in the
clearest of cases. To my mind this cannot possibly be regarded as such a case. I
would allow these appeals.
LORD PHILLIPS AND LORD CLARKE
98. We agree that these appeals should be dismissed for the reasons given by
Lord Wilson and Lady Hale.