Supreme Court finds that UK’s immigration ban requiring spouses to be aged over 21 are unlawful
The Supreme Court has ruled that immigration rules again breach ECHR Article 8 Rights
The Supreme Court has decided that the ban on the entry for settlement of foreign spouses or civil partners unless both parties are aged 21 or over, paragraph 277 of the Immigration Rules, is an lawful way of deterring or preventing forced marriages.
Paragraph 277 of the Immigration Rules was amended in 2008 to raise the minimum age for a person either to be granted a visa for the purposes of settling in the United Kingdom as a spouse or to sponsor another for the purposes of obtaining such a visa from 18 to 21. ASt the time the Government stated that the purpose of this amendment was to deter forced marriages. The rule was controversial from the start and has now been damned by the Supreme Court in a landmark new ruling.
In the linked appeals of R (Quila and another) v Secretary of State for the Home Department and R (Bibi and another) v Secretary of State for the Home Department [2011] UKSC 45 the Supreme Court, by a 4-1 majority, dismissed the Secretary of State’s appeal on the grounds that the refusal to grant marriage visas to the respondents was an infringement of their rights under Article 8 ECHR. Lord Wilson gave the leading judgment; Lady Hale gave a concurring judgment. Lord Phillips and Lord Clarke agreed with Lord Wilson and Lady Hale. Lord Brown gave a dissenting judgment.
The majority determined that the Secretary of State had failed to establish that the interference with the respondents’ rights to a family life was justified under Article 8(2) ECHR.
Lord Wilson said that paragraph 277 has a legitimate aim, namely the protection of the rights and freedoms of those who might be forced into marriage and is rationally connected to that objective, but its efficacy is highly debatable. The Secretary of State had failed to adduce any robust evidence that the amendment would have any substantial deterrent effect. By contrast, the number of forced marriages amongst those refused a marriage visa had not been quantified. The only conclusion that could be drawn was that the amendment would keep a very substantial number of bona fide young couples apart or forced to live outside the UK, vastly exceeding the number of forced marriages that would be deterred. On any view, he said, the measure was a sledgehammer but the Secretary of State had not attempted to identify the size of the nut.
Lord Brown, dissented, stating that the extent of forced marriage is impossible to quantify so the deterrent effect of paragraph 277 could never be satisfactorily determined.
To read the judgment and the Supreme Court’s own press summary, please click here.
