13th October 2011: In a judgment expected to benefit those wanting to bring their under-21 spouses to the UK, the Supreme Court this morning overturned an immigration rule prohibiting the entry of foreign spouses from non-EU countries, who are under the age of 21.
The judgment is significant as the age limit was raised from 18 to 21 in 2008. explaining the rationale behind the move, the Home Office had claimed it was an attempt to prevent forced marriages.
But, the Supreme Court was not convinced. It held the rule breached article 8 of the ECHR.
Lord Wilson said the number of forced marriages which the rule deterred was “highly debatable”.
Lord Wilson added: “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.”
Lord Wilson made it clear the home secretary has failed to prove the amendment was no more than essential to accomplish her objective or that it struck a fair balance between the rights of the parties to unforced marriages and the interests of the community in preventing forced marriages.
Lord Wilson said: “On any view it is a sledgehammer but she has not attempted to identify 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.”
“On any view it is a sledgehammer but she [the secretary of state] has not attempted to identify the size of the nut”
As Lord Wilson turned down the home secretary’s appeal, Lords Phillips and Lord Clarke agreed that the home secretary had violated their rights under article 8 by refusing to grant marriage visas to the claimant couples.
Lord Brown, however, dissented while describing forced marriages as an “appalling evil” which all too often occurred within the immigrant community.
“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,” Lord Brown asserted.
“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.”
Lord Brown insisted article 8 was a “difficult provision” leading to some “highly contentious, not to say debatable, decisions”.
“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.”
In December 2010, the Joint Council for the Welfare of Immigrants, with the support of The AIRE Centre, the Southall Black Sisters and the Henna Foundation, successfully challenged the 2008 law.
The case fought was that of British citizen, Amber and her Chilean husband, Diego Aguilar-Quila, a young couple of who met at school whilst Diego’s mother was studying at University in the UK.
Responding to the verdict, the JCWI said: `They married, with the support of both families, but were denied a visa for Diego due to the new law. Amber and Diego were just one of many couples denied the right to live together, when it was universally accepted, including by the Home Office, that the relationship was genuine.
The ruling should act as a warning to the Home Office, that the making of knee-jerk policy without adequate research is unacceptable’.
JCWI Chief Exec Habib Rahman said: “This is a fantastic victory, our thanks goes to the judges who had made a considered and intelligent judgment. This is a great day for the right to a family life in the UK. This was a law introduced on the hoof, which had no discernible effect on forced marriage, but infringed on the rights of UK citizens to live in the UK with their partners. We are delighted to see it consigned to the scrap heap of misguided legislation.
“We now ask the Government to consider other policies they are generating on family immigration. They habitually frame such policy as helping the welfare of migrants and others, whereas in truth their rules are solely aimed at limiting immigration. Theresa May should rethink these attacks before some of them meet a similar fate”