So according to the BBC Damian Green thinks that ‘forcing someone to marry is an intolerable act.’ With the exception of its perpetrators who doesn’t? Certainly not JCWI, not the Court of Appeal judges who heard our recent case, nor in fact the Southall Black Sisters or the Henna Foundation– both charities who have a long history of working to promote the rights of women, and who intervened in this case.
Forced marriage and human rights
The fact is that it is rightly and widely accepted that forced marriage is a human evil and breaches international human rights standards. However acceptance of this fact in no way justifies breaching human rights of others’ in the way that rule 277 of the Immigration Rules appears to have to done.
The application of what was effectively a blanket ban on non EEA spouses aged under 21 joining their settled/British spouses has affected approximately 5000 newly- wed young couples per year. 96%of these marriages are thought to have been genuine. Even so,Damian Green and regrettably some campaigners have criticised the recent legal judgment on the grounds that this is likely to harm victims/potential victims of forced marriage but will it?
An ineffective measure
The truth of the matter is that using the visa system in this way to address forced marriages isn’t actually very effective. For a start, with-holding a visa in itself can’t actually stop a forced marriage from taking place. It instead is likely to simply defer the marriage – as the intervenors in our case pointed out may actually generate greater risks for its victims- they may remain under prolonged familial control and have fewer options available to them in foreign countries.
It of course does nothing to stop the British citizen being taken abroad in order to for the forced marriage to be transacted there, nor does it do anything in relation to forced marriages that take place where an EEA national is involved. It is also wholly ineffective in relation to forced marriage taking place in other age groups – statistics show that the incidence is only marginally lower in these groups.
When the Parliamentary Home Affairs Committee looked at this issue, they noted that although other European countries had increased the visa age (and so had the UK in the past) there was no empirical evidence suggesting that it had in any way reduced forced marriage. Indeed the only research that was commissioned on the subject- a report by Professor Hester from Bristol University which was brought to our attention by Free Movement some time ago actually warned against increasing the age limit on the grounds that it could actually increase risks to potential victims.
Civil and criminal law do it best
The reality is that criminal and civil law have far wider reach and are far better equipped to deal with the issue of forced marriage in a targeted, victim centred and proportionate way. Under the criminal law whilst forced marriage itself is not a crime, the acts associated with it are – conspiracy, theft (of passport), kidnap, rape, threats to kill can all form the basis of a prosecution andsubsequent prison sentence.
Furthermore the relatively new forced marriage protection orders available under the Forced Marriage (Civil Protection) Act 2007 have, as MOJ research shows, actually been very effective in addressing the issue. Under this scheme the Court enjoys wide powers to make all sorts of orders that can assist the victims/potential victims of forced marriage both on application by victims and other third parties. They can for example make orders forbidding parties from removing an individual from a country, they can require passports to be handed to the court in order to prevent travel. Other orders that prevent perpetrators from undertaking acts associated with forced marriage can also be made. Furthermore, orders can also have extra -territorial effect.
The great beauty of civil and criminal law is that is that it is applicable to all, and can capture acts associated with forced marriage immigration law simply can’t reach. It targets the perpetrators of forced marriage rather than the victims themselves, has some hope of stopping the offending act, and discouraging others from doing so. It is also proportionate in their approach- innocent parties cannot be swept up in the same way as under the visa system – if they are, standard civil and criminal protections also apply so that they can extricate themselves from the situation.
No doubt improvements could be made. Adequate funding of services for victims of violence- including forced marriage, and increasing awareness in communities of the prevalence of forced marriage and the remedies available to victims of forced marriage could make a valuable contribution.
So far as immigration goes, so too could ending of the internationally criticised “no recourse to public funds rule.” Whilst there have been some positive developments here for those applying under the domestic violence rule, those who don’t fall under the limited rule, or don’t know about its existence will still continue to be locked into abusive relationships – fleeing a situation of abuse in these circumstances potentially means homelessness, no income and an inability to get secure status.
With budget cuts however of up to 16 % for local authorities who often fund services to victims of violence on the horizon, and a possible extension of the no recourse to public funds rule through a possible extension probationary period for spouses of settled/British citizens the prospect of any of the above crystalising regrettably seems pretty dim indeed.
For more recent developments on this case on 28.03.11, please read here.